Patna High Court
Munna PaswanversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
- Bench
- JITENDRA KUMAR
Holding
The anticipatory bail petition is not maintainable because the petitioner is already in constructive custody of the court.
Summary
Munna Paswan was originally charged with offences under Sections 147, 149, 341, 323, 324, 504 and 506 of the IPC and was released on regular bail. During investigation a charge‑sheet was filed adding the more serious offence of attempt to murder under Section 307 IPC. He filed an anticipatory bail petition under Section 438 CrPC before the Sessions Court, which was rejected, and then approached the Patna High Court. The Court examined the statutory provisions and a large body of case law, holding that a person already released on bail is in "constructive custody" and therefore cannot claim anticipatory bail. Consequently, the petition was dismissed as non‑maintainable, and the Court directed the petitioner to surrender and seek regular bail, noting that the court may cancel the existing bail under Sections 437(5) or 439(2) CrPC if supervening circumstances warrant it.
Issues considered
- Whether an anticipatory bail application is maintainable when the accused is already released on regular bail and thus in constructive custody.
- Whether the addition of a higher offence (Section 307 IPC) after grant of bail affects the availability of anticipatory bail.
Legislation cited
- Criminal Procedure Code — s. 437, 438, 439, 482
- Indian Penal Code — s. 147, 149, 307, 323, 324, 341, 504, 506
Subjects
- anticipatory bail
- constructive custody
- regular bail
- Section 307 IPC
- bail cancellation
- Section 438 CrPC
- Section 439 CrPC
- supervening circumstances
- bail jurisprudence
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.16411 of 2026
Arising Out of PS. Case No.-95 Year-2022 Thana- KARAHGAR District- Rohtas
======================================================
Munna Paswan, Son of Kameshwar Paswan @ Kameshwar Ram, Resident of
Village -Kouakhoch, PS -Kargahar, District -Rohtas.
... ... Petitioner
Versus
The State of Bihar
... ... Opposite Party
======================================================
Appearance :
For the Petitioner : Mr. Subash Kumar, Advocate
For the State : Mr. Ajay Kumar Jha, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
Date : 04-05-2026
The present Criminal Miscellaneous Petition has been
preferred by the the Petitioner for anticipatory bail in connection
with Kargahar P.S. Case No. 95 of 2022, dated 15.03.2022,
registered for the offences punishable under Section 147, 149,
341, 323, 324, 504 and 506 of the Indian Penal Code and the
Petitioner and other co-accused were released on regular bail by
the Court below. However, after investigation, charge-sheet has
been submitted and cognizance has been taken against the
Petitioner and other co-accused under Section 307 and other
minor offences of the Indian Penal Code.
2. Hence, apprehending his arrest, the Petitioner
moved anticipatory bail petition before learned Sessions Court
vide A.B.P. No. 1174 of 2023. However, the petition filed by the
Petitioner was rejected by learned Sessions Court vide order
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dated 17.08.2023 on account of serious nature of the alleged
offence and direct allegation against the Petitioner. Hence, the
Petitioner is before this Court seeking anticipatory bail.
3. The prosecution case as emerging from the written
report is that on 11.03.2022, a Yagya was being performed in
village of the Informant. At the place of Yagya, the Petitioner
and other co-accused, came with lathi, danda and country made
pistol in drunken condition and they assaulted Ram Bilas
Paswan and his father Shyam Ji Paswan. The specific allegation
against the Petitioner is that he assaulted Shyam Ji Paswan with
iron rod and Ravi Paswan assaulted him by lathi.
4. As per injury report, as transpires from the order
dated 17.08.2023, passed by learned Sessions Court in A.B.P.
No.1174 of 2023, the victim, Shyam Ji Paswan has received two
injuries viz. One lacerated wound of size about 3’’ x ¼’’ x Scalp
deep over left side of the forehead and one lacerated wound of
size about ½ ’’ x ¼’’ x skin deep over right side of the face and
as per the supplementary injury report, one of the injuries of
Shyam Ji Paswan was found to be grievous.
Submission of the Parties
5. I heard learned counsel for the petitioner and
learned APP for the State.
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6. Learned counsel for the Petitioner submits that
petitioner is innocent and has falsely been implicated on account
of enmity arising from Panchayat election of 2021.
7. He further submits that the petitioner always lives
out of the State for his livelihood and he is no way involved in
the alleged offence.
8. He also submits that as per the alleged facts and
circumstances, offence under Section 307 IPC is not made out.
9. He further submits that after lodging of the FIR, he
has already got regular bail. However, after investigation,
charge-sheet has been submitted with addition of higher offence
punishable under Section 307 IPC and, hence, apprehending that
his bail-bond may be cancelled and he may be taken into
custody by the Court, he preferred anticipatory bail petition
before the Sessions Court, but the same has been rejected by the
Court below and, hence, he is before this Court.
10. However, learned APP for the State vehemently
opposes the prayer of the Petitioner for anticipatory bail,
submitting that the present anticipatory bail petition is not
maintainable in view of the Petitioner being already in
constructive custody of the Court, because he had already
surrendered before the Court in this case and got regular bail.
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Anticipatory bail petition is maintainable only when the accused
is apprehending arrest and not when he is already in custody of
the police or Court. The petitioner is on regular bail, hence, he is
in constructive custody of the Court. Hence, the anticipatory
bail petition is not maintainable.
11. I considered the submissions advanced by both the
parties and perused the material on record.
Statutory Provisions and relevant Case Laws
12. Section 438 Cr.PC/ Section 482 BNSS deals with
the grant of anticipatory bail providing where any person has
reason to belief that he may be arrested on accusation of having
committed on non-bailable offence, he may apply to the High
Court or the Court of Sessions for direction under this section
that in the event of such arrest, he shall be released on bail.
13. Section 438 Cr.PC further provides, inter alia, the
factors which are required to be considered by the Court while
giving such direction.
14. As such, Sessions Court and High Court are
empowered under Section 438 Cr.PC/482 BNSS to entertain
applications of the accused for anticipatory bail when they are
accused of committing non-bailable offence.
15. It also emerges from Section 438 Cr.PC/Section
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482 BNSS that sine qua non for filing application by any
accused before competent Court is that he is not in custody. In
other words, if the accused is already in custody, no anticipatory
bail application on his behalf would lie.
16. In the case on hand, I find that the FIR was
registered against the petitioner and other co-accused for
offences punishable under Sections 147, 149, 341, 323, 324, 504
and 506 of the Indian Penal Code and the Petitioner and other
co-accused were released on regular bail by the Court below.
However, after investigation, charge-sheet has been submitted
and cognizance has been taken against the Petitioner and other
co-accused under Section 307 and other minor offences of the
Indian Penal Code. Now, the petitioner is “apprehending arrest”
and hence, he has moved the present petition under Section 438
Cr.PC/482 BNSS.
17. Now next question is whether the petitioner could
be deemed to be in custody when he had already surrendered in
this case before Court and got released on regular bail under
Section 439 Cr.PC/Section 482 BNSS.
18. In Manish Jain v. Haryana State Pollution
Control Board, as reported in (2020) 20 SCC 123, Hon’ble
Supreme Court has clearly held in para-2 of the judgment that a
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person released on bail is already in the constructive custody of
law. If the law requires him to come back to custody for
specified reasons, an application for anticipatory bail
apprehending arrest will not lie. There cannot be an
apprehension of arrest by a person already in the constructive
custody of the law and hence, Hon’ble Supreme Court rejected
the prayer of the petitioner for anticipatory bail and Hon’ble
Supreme Court gave liberty to the petitioner to surrender within
two weeks and seek regular bail to be decided on its own merits.
19. In Kanaksinh Mohansinh Mangrola v. State of
Gujarat, as reported in (2006) 9 SCC 540, Hon’ble Supreme
Court has again held in para-4 of the judgment that on the day
of the appearance before the Court, the appellant was in custody
as he was on interim bail for 15 days. Hence, his application for
regular bail under Section 439 Cr.PC was maintainable.
20. Hon’ble Supreme Court in Niranjan Singh and
Anr. v. Prabhakar Rajaram Kharote and Ors., as reported in
(1980) 2 SCC 559, has held as follows, explaining the meaning
of custody:
“7. When is a person in custody, within the meaning
of Section 439 CrPC? When he is in duress either because
he is held by the investigating agency or other police or
allied authority or is under the control of the court having
been remanded by judicial order, or having offered
himself to the court's jurisdiction and submitted to its
orders by physical presence. No lexical dexterity nor
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precedential profusion is needed to come to the realistic
conclusion that he who is under the control of the court or
is in the physical hold of an officer with coercive power is
in custody for the purpose of Section 439. This word is of
elastic semantics but its core meaning is that the law has
taken control of the person. The equivocatory quibblings
and hide-and-seek niceties sometimes heard in court that
the police have taken a man into informal custody but not
arrested him, have detained him for interrogation but not
taken him into formal custody and other like
terminological dubieties are unfair evasions of the
straightforwardness of the law. We need not dilate on this
shady facet here because we are satisfied that the accused
did physically submit before the Sessions Judge and the
jurisdiction to grant bail thus arose.
8. Custody, in the context of Section 439, (we are not,
be it noted, dealing with anticipatory bail under Section
438) is physical control or at least physical presence of the
accused in court coupled with submission to the
jurisdiction and orders of the court.
9. He can be in custody not merely when the police
arrests him, produces him before a Magistrate and gets a
remand to judicial or other custody. He can be stated to be
in judicial custody when he surrenders before the court
and submits to its directions. In the present case, the
police officers applied for bail before a Magistrate who
refused bail and still the accused, without surrendering
before the Magistrate, obtained an order for stay to move
the Sessions Court. This direction of the Magistrate was
wholly irregular and maybe, enabled the accused persons
to circumvent the principle of Section 439 CrPC. We
might have taken a serious view of such a course,
indifferent to mandatory provisions, by the subordinate
magistracy but for the fact that in the present case the
accused made up for it by surrender before the Sessions
Court. Thus, the Sessions Court acquired jurisdiction to
consider the bail application. It could have refused bail
and remanded the accused to custody, but, in the
circumstances and for the reasons mentioned by it,
exercised its jurisdiction in favour of grant of bail. The
High Court added to the conditions subject to which bail
was to be granted and mentioned that the accused had
submitted to the custody of the court. We, therefore, do
not proceed to upset the order on this ground. Had the
circumstances been different we would have demolished
the order for bail. We may frankly state that had we been
left to overselves we might not have granted bail but,
sitting under Article 136, do not feel that we should
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interfere with a discretion exercised by the two courts
below.”
(Emphasis supplied)
21. Hon’ble Supreme Court in Sunil Fulchand Shah
v. Union of India and Ors., as reported in (2000) 3 SCC 409,
has held as follows, explaining the meaning of bail and
constructive control of the Court over the accused released on
bail:
“24. Bail and parole have different connotations in
law. Bail is well understood in criminal jurisprudence and
Chapter XXXIII of the Code of Criminal Procedure
contains elaborate provisions relating to grant of bail. Bail
is granted to a person who has been arrested in a non-
bailable offence or has been convicted of an offence after
trial. The effect of granting bail is to release the accused
from internment though the court would still retain
constructive control over him through the sureties. In case
the accused is released on his own bond such constructive
control could still be exercised through the conditions of
the bond secured from him. The literal meaning of the
word “bail” is surety. In Halsbury's Laws of England
[ Halsbury's Laws of England, 4th Edn., Vol. 11, para
166.] , the following observation succinctly brings out the
effect of bail:
The effect of granting bail is not to set the defendant
(accused) at liberty but to release him from the custody of
law and to entrust him to the custody of his sureties who
are bound to produce him to appear at his trial at a
specified time and place. The sureties may seize their
principal at any time and may discharge themselves by
handing him over to the custody of law and he will then
be imprisoned.”
(Emphasis Supplied)
22. Hon’ble Supreme Court in Sunita Devi v. State of
Bihar and Anr., as reported in (2005) 1 SCC 608, has again
held as follows, explaining the meaning of custody:
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“15. Since the expression “custody” though used in
various provisions of the Code, including Section 439, has
not been defined in the Code, it has to be understood in
the setting in which it is used and the provisions contained
in Section 437 which relate to jurisdiction of the
Magistrate to release an accused on bail under certain
circumstances which can be characterised as “in custody”
in a generic sense. The expression “custody” as used in
Section 439, must be taken to be a compendious
expression referring to the events on the happening of
which the Magistrate can entertain a bail petition of an
accused. Section 437 envisages, inter alia, that the
Magistrate may release an accused on bail, if such accused
appears before the Magistrate. There cannot be any doubt
that such appearance before the Magistrate must be
physical appearance and the consequential surrender to the
jurisdiction of the court of the Magistrate.
20. For making an application under Section 439 the
fundamental requirement is that the accused should be in
custody.………………………………………………….”
(Emphasis supplied)
23. It would be also profitable to refer to Manoj
Suresh Jadhav and Ors. v. State of Maharashtra, [ (2019) 17
SCC 362], wherein police had added another offence punishable
under Section 376 of Indian Penal Code in the F.I.R. against the
petitioner during investigation and arrested the petitioner who
was already on bail in that case. Being aggrieved, the petitioner
filed writ petition before the High Court which was dismissed.
Hence, he moved before Hon’ble Supreme Court by way of
SLP, wherein Hon’ble Supreme Court held that it was not
permissible for State to re-arrest the petitioner by ignoring the
bail order passed by learned Additional Sessions Judge which
was in force at that time and directed to release the petitioner on
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the condition as imposed by bail order passed by learned
Sessions Court. However, State was given liberty to apply for
cancellation of the bail and seek the custody of the
petitioner/accused. The relevant part of the judgment read as
follows:
“1. By order dated 2-6-2016, the petitioners were
granted bail for the offence punishable under Section 509
read with Section 34 of the Penal Code, 1860 (for short
“IPC”) by the learned Additional Sessions Judge, Pune.
2. During the course of investigation, the police
added another offence under Section 376 of the Penal
Code in the FIR against the petitioners and re-arrested
them. Being aggrieved, the petitioners filed writ petition
before the High Court which was dismissed [Manoj
Suresh Jadhav v. State of Maharashtra, 2017 SCC OnLine
Bom 9972] . Hence, the special leave petition.
3. We have heard the learned counsel appearing for
the parties and perused the record.
4. It is not permissible for the respondent State to
simply re-arrest the petitioners by ignoring the order dated
2-6-2016 passed by the learned Additional Sessions Judge,
Pune, which was in force at that time.
5. We direct that the petitioners shall be released on
bail on the same condition(s) as imposed in the aforesaid
order dated 2-6-2016 by the learned Sessions Judge, Pune.
6. Having regard to the provision of Section 439(2)
of the Code of Criminal Procedure, the respondent State is
at liberty to apply for cancellation of bail and seek the
custody of the petitioner-accused.
7. With the aforesaid directions, the special leave
petition is disposed of.”
(Emphasis supplied)
24. The present judgment would be per incurium
without referring to Pradeep Ram V. State of Jharkhand [
(2019) 17 SCC 326], which is a leading case on the subject.
25. Here, one of the issues involved was as follows:-
“9.1(i) Whether in a case where an accused has
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been bailed out in a criminal case, in which case,
subsequently new offences are added, is it necessary that
bail earlier granted should be cancelled for taking the
accused in custody ?”
26. Hon’ble Supreme Court referred to and considered
various relevant judgments of different High Courts as well as
Hon’ble Supreme Court itself and arrived at the following
conclusion.
“31. In view of the foregoing discussions, we arrive
at the following conclusions in respect of a circumstance
where after grant of bail to an accused, further cognizable
and non-bailable offences are added:
31.1. The accused can surrender and apply for bail
for newly added cognizable and non-bailable offences. In
event of refusal of bail, the accused can certainly be
arrested.
31.2. The investigating agency can seek order from
the court under Section 437(5) or 439(2) CrPC for arrest
of the accused and his custody.
31.3 [Ed. : Para 31.3 corrected vide Official Letter
dated 31-7-2020.] . The court, in exercise of power under
Section 437(5) or 439(2) CrPC, can direct for taking into
custody the accused who has already been granted bail
after cancellation of his bail. The court in exercise of
power under Section 437(5) as well as Section 439(2) can
direct the person who has already been granted bail to be
arrested and commit him to custody on addition of graver
and non-bailable offences which may not be necessary
always with order of cancelling of earlier bail.
31.4. 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.
32. Issue (i) is answered accordingly.”
(Emphasis supplied)
27. Regarding view of this Court on the subject, one
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may refer to Mehendra Prasad Singh Vs. The State of Bihar
as reported in 2004 (3) PLJR 491. In this case, the F.I.R. was
lodged under Sections 364, 323 and 307 read with Section 34 of
the Indian Penal Code and the accused was accordingly arrested
by the police. However, during the investigation, police found
commission of only bailable offences, and hence, he released
the accused on police bail. The police also filed charge-sheet for
bailable offence. However, learned Judicial Magistrate
disagreed with the charge-sheet and took cognizance of non-
bailable offences. Hence, the petitioner “apprehending his
arrest” moved anticipatory bail. However, the Co-ordinate
Bench of this Court held that anticipatory bail petition was not
maintainable, holding that there was no apprehension of arrest
in the same case. Hence, the petitioner was directed to appear
before the Court below without any delay and seek regular bail.
The Court below was also directed to consider his prayer for
bail in accordance with law keeping in view the well established
principle that a person, who is already on bail, shall not be
denied such privilege unless there is any allegation of misuse
etc.
28. Mehendra Prasad Singh Case (supra) was
followed by co-ordinate bench of this Court in Sheochandra
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Singh and Ors. V. State as reported in 2007 SCC OnLine Pat
333. Here, informant and his son had got simple injuries. During
investigation, the police found the case to be true only under
bailable sections of the Indian Penal Code. Hence, the police
released the petitioner on police bail and submitted charge-sheet
also for bailable offences punishable under Sections 341, 323
and 504 of the Indian Penal Code. However, learned Judicial
Magistrate took cognizance of the offence also punishable under
Section 307 of the Indian Penal Code, which is non-bailable.
Summons was issued to the accused/petitioner for appearance.
Hence, the petitioner filed anticipatory bail petition before
Sessions Court which was rejected. Hence, the petitioner moved
this Court wherein this Court held as follows:
“7. It is well settled that in anticipatory bail
application is not maintainable on behalf of the persons
who have also been allowed police bail or bail by a
Magistrate. The above view has been reiterated in the case
of Mahendra Prasad Singh that a person who has been
apprehended and allowed bail cannot have any further
apprehension of arrest in same cases. However, this Court
observed that a person who has been allowed such bail by
police would not be denied such privilege on appearance
after taking of cognizance unless there is allegation of
misuse etc.
10. This Court, at this stage is only of the view that
the anticipatory bail application for the petitioners is not
maintainable as accused persons were already on police
bail in the year 2002 itself. Though as per petitioners there
is no service report of receipt of summons but it appears
that the accused persons did have knowledge of
proceedings and taking of cognizance of offene under
non-bailable sections way back in the year 2003 itself. The
petitioners namely, Sheochandra Singh, Harishanker
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Singh and Anil Kumar Singh should surrender and pray
for bail and the learned Magistrate will dispose of the
same keeping in view the principle that a person who is
already on bail shall not be denied such privilege unless
there is allegation of misuse.”
(Emphasis supplied)
29. It would be also profitable to refer to Chinmaya
Sahu Vs. State of Orissa, as decided by Orissa High Court and
reported in 2023 SCC OnLine Ori 5121. Here, the accused
Petitioner was granted bail by the Court of Judicial Magistrate
in a case relating to bailable offence. However, in course of
investigation, other offences were found to have been
committed by the accused Petitioner punishable under Section
420, 465, 467, 471, 409 read with Section 120B of the Indian
Penal Code. Consequently, the Investigating Officer of the case
made prayer before learned Judicial Magistrate for cancellation
of the bail bond of the accused Petitioner. Accordingly, the bail
bond of the Petitioner was cancelled by the Court. This order of
the cancellation was challenged before the High Court under
Section 482 Cr.PC submitting that the bail was granted to him
under Section 436 Cr.PC by the Court of Judicial Magistrate,
and hence, the power of cancellation granted to the Magistrate
under Section 437(5) of Cr.PC was not available to learned
Judicial Magistrate. The bail order could have been cancelled
only under Section 439(2) of Cr.PC by the Court of Sessions or
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by the High Court. It was also submitted by the Petitioner that
the bail order was cancelled without giving opportunity of
hearing to the Petitioner violating the principle of natural justice
- audi alteram partem. The Petitioner also referred to and relied
upon P.K. Shaji @ Thammanam Shaji Vs. State of Kerala as
reported in (2005) 13 SCC 283 and Gurdev Singh Vs. State of
Bihar as reported in (2005) 13 286.
30. In the aforesaid facts and circumstances, the
Orissa High Court set aside the impugned order of the Judicial
Magistrate, whereby bail bond of the Petitioner was cancelled,
holding that the bail granted under Section 436 Cr.PC cannot be
cancelled under Section 437(5) Cr.PC by the Judicial
Magistrate. The order could have been cancelled only under
Section 439(2) Cr.PC by the Court of Sessions or the High
Court. The Orissa High Court also held that in view of the
Ruling of P.K. Shaji and Gurdev Singh case (supra), the bail
bond of the Petitioner could not be cancelled without giving
opportunity of hearing to the Accused/Petitioner.
31. In P.K. Shaji case (supra), the accused was
granted bail by the Court of Sessions subject to certain
conditions and it was also stipulated that breach of conditions
would be brought to the notice of learned Judicial Magistrate by
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the Investigating Officer and the Magistrate was authorised to
take appropriate action as if the conditions was imposed by the
Magistrate himself. Subsequently, breach of conditions was
brought to the notice of learned Judicial Magistrate by the
Investigating Officer of the case and learned Magistrate
cancelled the bail bond of the Accused/Petitioner. Consequently,
the accused moved the High Court in Criminal Revision but the
same was dismissed by the High Court, and hence, the Accused
moved Hon’ble Supreme Court submitting that under Section
439(2) Cr.PC, bail granted by the Court of Sessions under
Section 439 Cr.PC, cannot be cancelled by the Court of Judicial
Magistrate, because such bail could be canclled only by the
Court of Sessions or by the Court under Section 439(2) Cr.PC.
32. Here, Hon’ble Supreme Court held that as a
general preposition, the plea raised by the Accused/Petitioner
was correct. However, in the given case, the Judicial Magistrate
was authorised by the Court of Sessions itself to take
appropriate action if breach of conditions was brought to his
notice. Hence, there was no illegality in the cancellation order
passed by learned Judicial Magistrate in view of the breach of
the conditions imposed by learned Court of Sessions in the bail
order. However, Hon’ble Apex Court also held that in view of
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the Ruling of Hon’ble Supreme Court in Gurdev Singh case
(supra), the Accused/Petitioner should have been heard before
cancellation of the bail.
33. In Gurdev Singh case (supra), Hon’ble Supreme
Court has held that before cancellation of bail of any of the
accused, notice must be served upon him, and hence, the matter
was remanded to the High Court for passing fresh order after
hearing the Accused/Petitioner.
34. In Veer Pal Singh v. State of U.P. and Ors., as
reported in 2026 SCC OnLine All 1155, F.I.R. was registered
against the petitioner under Sections 74 and 115(2) BNS and
Section 7/8 of POCSO Act and he was already enlarged on bail
granted by Allahabad High Court and subsequently, the victim
committed suicide and hence, the application for cancellation of
bail was moved against the petitioner.
35. Here, Allahabad High Court referred to and
discussed various judicial precedents and cancelled the bail
previously granted by it to the petitioner, holding that it is well
settled that bail granted to an accused may be cancelled, where
it is shown that such accused has misused his liberty by
indulging in criminal activity or attempts to tamper with
evidence or threatens witnesses or on the grounds of like nature.
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Here, High Court found that subsequent to release on bail, the
petitioner again started harassing the victim lady which led to
commit suicide.
Present Case
36. Coming to the case on hand, I find that the F.I.R.
was lodged against the petitioners for offence punishable under
Sections 147, 149, 341, 323, 324, 504 and 506 Indian Penal
Code and he was released on regular bail by learned Judicial
Magistrate. However, charge-sheet has been submitted against
them for higher offence also punishable under Section 307 of
the Indian Penal Code, besides other minor Sections 341, 323,
504 and 506 read with Section 34 of the Indian Penal Code and
hence, the petitioner moved learned Court of Sessions for
anticipatory bail, which has been rejected by learned Sessions
Court on account of serious nature of the alleged offence and
direct allegation against the petitioner. Hence, the petitioner is
before this Court praying for anticipatory bail.
37. In view of the legal provisions as discussed
above, it clearly transpires that the petitioner, who had
surrendered before the Court of learned Judicial Magistrate and
was enlarged on regular bail, is already in constructive custody
of the Court and, hence, the anticipatory bail petition filed by
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the petitioner before this Court is not maintainable. Learned
Sessions Court could not notice it and erroneously entertained
the anticipatory bail petition bearing A.B.P. No. 1174 of 2023,
filed by the petitioner before him and rejected it on merit.
38. Now question is what is remedy available to the
petitioner in view of the addition of the higher offence
punishable under Section 307 of the Indian Penal Code against
him in the charge-sheet.
39. In such situation, the petitioner has remedy to
surrender before the Court in seisin of the matter and seek
regular bail afresh and in case of such eventuality, the Court
concerned would be required to dispose of the regular bail
application of the petitioner, applying the legal principles
governing cancellation of bail on account of supervening
circumstances. Here, cancellation of the bail would depend upon
the nature of the new circumstances by way of addition of new
offence and the prosecution material on record. Here, the Court
may or may not cancel the bail already granted to the petitioner.
The Court concerned is competent under Section 437(5) or
439(2) Cr.PC as applicable to cancel the bail granted to the
petitioner and commit him to custody in view of the addition of
the graver and non-bailable offence under Section 307 of the
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Indian Penal Code. However, the investigating agency cannot
arrest and take the petitioner in custody, unless it seeks order
from the Court concerned under Section 437(5) or 439(2)
Cr.PC. As per law, Court is also required to hear the
accused/petitioner before cancellation of his bail under Section
437(5) or 439(2) Cr.PC. If the petitioner is not allowed to
continue on the bail which he has already got, he would have
remedy to challenge the order of the Court to the higher Court
on merit – propriety or legality of the order. Even the
investigating agency or the informant may challenge the order
of the Court in higher Court if the Court allows the
accused/petitioner to continue on bail.
40. Here, it would be pertinent to point out that legal
principles regarding grant of bail and cancellation of bail are
fundamentally different. Even cancellation of bail is sought in
two situations; firstly, when the bail has been granted in
violation of the legal principles governing the grant of bail, and,
secondly, when there is violation of terms and conditions of the
bail by the accused/petitioner or there is supervening
circumstances warranting cancellation of bail. Addition of
higher offence in the FIR or charge-sheet is one of the
supervening circumstances when the Court may consider
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cancellation of the bail. This consideration is done by the same
Court which has granted the bail to the accused/petitioner,
whereas the challenge to the bail order on merit can be
entertained only by the superior Court in appropriate
proceeding. In this contest, it would be appropriate to refer to
leading judicial precedents as follows.
41. In Ansar Ahmad v. State of U.P., (2024) 14 SCC
779, Hon’ble Apex Court has elucidated the parameters for
grant of bail in following words :
“10. There cannot be any quarrel with the submission
advanced by Mr R. Basant, the learned Senior Counsel
appearing for one of the private respondents that the court
while granting bail is not required to give detailed reasons
touching on the merits or demerits of the prosecution case
as any such observation made by the Court in a bail matter
can unwittingly cause prejudice to the prosecution or the
accused at a later stage. The settled proposition of law, in
our considered opinion, is that the order granting bail
should reflect the judicial application of mind taking into
consideration the well-known parameters including:
(i) The nature of the accusation weighing in the gravity
and severity of the offence;
(ii) The severity of punishment;
(iii) The position or status of the accused i.e. whether the
accused can exercise influence on the victim and the
witnesses or not;
(iv) Likelihood of accused to approach or try to approach
the victims/witnesses;
(v) Likelihood of accused absconding from proceedings;
(vi) Possibility of accused tampering with evidence;
(vii) Obstructing or attempting to obstruct the due course
of justice;
(viii) Possibility of repetition of offence if left out on bail;
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(ix) The prima facie satisfaction of the court in support of
the charge including frivolity of the charge; and
(x) The different and distinct facts of each case and nature
of substantive and corroborative evidence.
We hasten to add that there can be several other relevant
factors which, depending upon the peculiar facts and
circumstances of a case, would be required to be kept in
mind while granting or refusing bail to an accused. It may
be difficult to illustrate all such circumstances, for there
cannot be any straitjacket formula for exercising the
discretionary jurisdiction vested in a court under Sections
438 and 439, respectively, of CrPC, as the case may be.
……………………………………………………….”
42. Explaining the difference between cancellation of
bail on merit and cancellation of bail on account of violations of
the terms and conditions of the bail or supervening
circumstances, Hon’ble Apex Court in Ansar Ahmad case
(supra) held as follows :
“16. ………………………………………………….
Hence, it is not the law that once bail is granted to the
accused, it can only be cancelled on the ground of
likelihood of an abuse of bail. The Court before whom the
order of grant of bail is challenged is empowered to
critically analyse the soundness of the bail order. The
Court must be wary of a plea for cancellation of bail order
versus a plea challenging the order for grant of bail.
Although on the face of it, both situations seem to be the
same yet, the grounds of contention for both are
completely different. Let's understand the different
conditions in both the situations.
17. In an application for cancellation of bail, the court
ordinarily looks for supervening circumstances as
discussed above. Whereas in an application challenging
the order for grant of bail, the ground of contention is with
the very order of the Court. The illegality of due process is
questioned on account of improper or arbitrary exercise of
discretion by the court while granting bail. So, the crux of
the matter is that once bail is granted, the person
aggrieved with such order can approach the competent
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court to quash the decision of grant of bail if there is any
illegality in the order, or can apply for cancellation of bail
if there is no illegality in the order but a question of
misuse of bail by the accused. In Puran v. Rambilas,
(2001) 6 SCC 338, this Court has observed: (SCC p. 345,
para 11)
The concept of setting aside as unjustified, illegal or
perverse order is totally different from the cancelling an
order of bail on the ground that the accused had
misconducted himself, are because of some supervening
circumstances warranting such cancellation.”
(Emphasis supplied)
43. In Ashok Dhankad v. State (NCT of Delhi) and
Anr., as reported in 2025 SCC OnLine SC 1690, Hon’ble
Supreme Court has again explained the difference between
cancellation of bail on merit and cancellation of bail on account
of subsequent conduct of the accused or supervening
circumstances, in the following words :
“19. (i) An appeal against grant of bail cannot be
considered to be on the same footing as an application for
cancellation of bail;
(ii) The Court concerned must not venture into a
threadbare analysis of the evidence adduced by
prosecution. The merits of such evidence must not be
adjudicated at the stage of bail;
(iii) An order granting bail must reflect application of
mind and assessment of the relevant factors for grant of
bail that have been elucidated by this Court. [See: Y v.
State of Rajasthan [(2022) 9 SCC 269]; Jaibunisha v.
Meherban [(2022) 5 SCC 465] and Bhagwan Singh v.
Dilip Kumar @ Deepu [(2023) 13 SCC 549].
(iv) An appeal against grant of bail may be
entertained by a superior Court on grounds, such as
perversity; illegality; inconsistency with law; relevant
factors not been taken into consideration including gravity
of the offence and impact of the crime;
(v) However, the Court may not take the conduct of
an accused subsequent to the grant bail into consideration
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while considering an appeal against the grant of such bail.
Such grounds must be taken in an application for
cancellation of bail; and
(vi) An appeal against grant of bail must not be
allowed to be used as a retaliatory measure. Such an
appeal must be confined only to the grounds discussed
above.”
(Emphasis Supplied)
44. In Mahipal v. Rajesh Kumar as reported in
(2020) 2 SCC 118, Hon’ble Supreme Court has also elucidly
explained the difference between cancellation of bail on merit
and cancellation of bail on subsequent supervening
circumstances, in the following words :
“16. The considerations that guide the power of an
appellate court in assessing the correctness of an order
granting bail stand on a different footing from an
assessment of an application for the cancellation of bail.
The correctness of an order granting bail is tested on the
anvil of whether there was an improper or arbitrary
exercise of the discretion in the grant of bail. The test is
whether the order granting bail is perverse, illegal or
unjustified. On the other hand, an application for
cancellation of bail is generally examined on the anvil of
the existence of supervening circumstances or violations
of the conditions of bail by a person to whom bail has
been granted……………………………………………”
(Emphasis Supplied)
45. In Neeru Yadav v. State of U.P. as reported in
(2014) 16 SCC 508, Hon’ble Supreme Court has also elucidly
explained the difference between cancellation of bail on merit
and cancellation of bail on violation of terms and conditions or
supervening circumstances, in the following words :
“12. ……. It is well settled in law that cancellation of bail
after it is granted because the accused has misconducted
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himself or of some supervening circumstances warranting
such cancellation have occurred is in a different
compartment altogether than an order granting bail which
is unjustified, illegal and perverse. If in a case, the
relevant factors which should have been taken into
consideration while dealing with the application for bail
have not been taken note of, or bail is founded on
irrelevant considerations, indisputably the superior court
can set aside the order of such a grant of bail. Such a case
belongs to a different category and is in a separate realm.
While dealing with a case of second nature, the Court does
not dwell upon the violation of conditions by the accused
or the supervening circumstances that have happened
subsequently. It, on the contrary, delves into the
justifiability and the soundness of the order passed by the
Court.”
46. In Imran v. Mohd. Bhava & Anr., as reported in
(2022) 13 SCC 70, Hon’ble Supreme Court explained the
principles of cancellation of bail, holding as follows :
“20. Indeed, it is a well-established principle that once bail
has been granted it would require overwhelming
circumstances for its cancellation. However, this Court in
its judgment in Vipan Kumar Dhir v. State of Punjab,
(2021) 15 SCC 518 has also reiterated, that while
conventionally, certain supervening circumstances
impeding fair trial must develop after granting bail to an
accused, for its cancellation by a superior court, bail, can
also be revoked by a superior court when the previous
court granting bail has ignored relevant material available
on record, gravity of the offence or its societal impact.”
47. In regard to cancellation of bail, Hon’ble Supreme
Court in Dolat Ram Vs. State of Haryana as reported in
(1995) 1 SCC 349, has also held as follows :
“4. Rejection of bail in a non-bailable case at the initial
stage and the cancellation of bail so granted, have to be
considered and dealt with on different basis. Very cogent
and overwhelming circumstances are necessary for an
order directing the cancellation of the bail, already
granted. Generally speaking, the grounds for cancellation
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of bail, broadly (illustrative and not exhaustive) are :
interference or attempt to interfere with the due course of
administration of justice or evasion or attempt to evade the
due course of justice or abuse of the concession granted to
the accused in any manner. The satisfaction of the court,
on the basis of material placed on the record of the
possibility of the accused absconding is yet another reason
justifying the cancellation of bail. However, bail once
granted should not be cancelled in a mechanical manner
without considering whether any supervening
circumstances have rendered it no longer conducive to a
fair trial to allow the accused to retain his freedom by
enjoying the concession of bail during the trial.”
(Emphasis supplied)
48. In Ram Govind Upadhyay v. Sudarshan Singh,
as reported in (2002) 3 SCC 598, Hon’ble Supreme Court has
also held as follows :
“9. Undoubtedly, considerations applicable to the grant of
bail and considerations for cancellation of such an order of
bail are independent and do not overlap each other, but in
the event of non-consideration of considerations relevant
for the purpose of grant of bail and in the event an earlier
order of rejection available on the records, it is a duty
incumbent on to the High Court to explicitly state the
reasons as to why the sudden departure in the order of
grant as against the rejection just about a month ago.”
49. In Vipan Kumar Dhir v. State of Punjab, as
reported in (2021) 15 SCC 518, Hon’ble Supreme Court has
also held as follows in regard to cancellation of bail :
“9. At the outset, it would be fruitful to recapitulate the
well-settled legal principle that the cancellation of bail is
to be dealt on a different footing in comparison to a
proceeding for grant of bail. It is necessary that “cogent
and overwhelming reasons” are present for the
cancellation of bail. Conventionally, there can be
supervening circumstances which may develop post the
grant of bail and are non-conducive to fair trial, making it
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necessary to cancel the bail………………………………..
……………………………………………….
11. In addition to the caveat illustrated in the cited
decision(s), bail can also be revoked where the court has
considered irrelevant factors or has ignored relevant
material available on record which renders the order
granting bail legally untenable. The gravity of the offence,
conduct of the accused and societal impact of an undue
indulgence by Court when the investigation is at the
threshold, are also amongst a few situations, where a
Superior Court can interfere in an order of bail to prevent
the miscarriage of justice and to bolster the administration
of criminal justice system. This Court has repeatedly
viewed that while granting bail, especially anticipatory
bail which is per se extraordinary in nature, the possibility
of the accused to influence prosecution witnesses,
threatening the family members of the deceased, fleeing
from justice or creating other impediments in the fair
investigation, ought not to be overlooked.”
(Emphasis supplied)
50. In X v. State of Telangana, as reported in (2018)
16 SCC 511, Hon’ble Supreme Court has held as follows:
“8.7. Supervening circumstances, for the cancellation of
bail, must be of such a nature as to lead to the conclusion
that the accused does not deserve to be at liberty either by
reason of a violation of the conditions of bail or due to
supervening conduct which bears upon the misuse of
liberty by the accused………...”
51. In State of Bihar v. Rajballav Prasad, as
reported in (2017) 2 SCC 178, Hon’ble Supreme Court has
emphasized that while the liberty of the subject is an important
consideration, the public interest in the proper administration of
criminal justice is equally important and held as follows:
“26. … undoubtedly the courts have to adopt a liberal
approach while considering bail applications of the
accused persons. However, in a given case, if it is found
that there is a possibility of interdicting fair trial by the
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accused if released on bail, this public interest of fair trial
would outweigh the personal interest of the accused while
undertaking the task of balancing the liberty of the
accused on the one hand and interest of the society to have
a fair trial on the other hand. When the witnesses are not
able to depose correctly in the court of law, it results in
low rate of conviction and many times even hardened
criminals escape the conviction. It shakes public
confidence in the criminal justice-delivery system. It is
this need for larger public interest to ensure that criminal
justice-delivery system works efficiently, smoothly and in
a fair manner that has to be given prime importance in
such situations.”
(Emphasis supplied)
52. In CBI v. Subramani Gopalakrishnan, as
reported in (2011) 5 SCC 296, Hon’ble Supreme Court has also
held as follows :
“23. It is also relevant to note that there is difference
between yardsticks for cancellation of bail and appeal
against the order granting bail. Very cogent and
overwhelming circumstances are necessary for an order
directing the cancellation of bail already granted.
Generally speaking, the grounds for cancellation of bail
are, interference or attempt to interfere with the due course
of administration of justice or evasion or attempt to evade
the due course of justice or abuse of the concessions
granted to the accused in any manner. These are all only
few illustrative materials. The satisfaction of the court on
the basis of the materials placed on record of the
possibility of the accused absconding is another reason
justifying the cancellation of bail. In other words, bail
once granted should not be cancelled in a mechanical
manner without considering whether any supervening
circumstances have rendered it no longer conducive to a
fair trial to allow the accused to retain his freedom by
enjoying the concession of bail during the trial.”
(Emphasis supplied)
53. In Phireram v. State of U.P., as reported in 2025
SCC OnLine SC 1915, Hon’ble Supreme Court has discussed
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the principles governing the cancellation of bail at length
referring to various relevant judicial precedents and held as
follows:
“56. This Court then summed up the principles or
circumstance governing the cancellation of bail as under:
“25. Some of the circumstances where bail granted to the
accused under Section 439(1) CrPC can be cancelled are
enumerated below:
(a) If he misuses his liberty by indulging in similar/other
criminal activity;
(b) If he interferes with the course of investigation;
(c) If he attempts to tamper with the evidence;
(d) If he attempts to influence/threaten the witnesses;
(e) If he evades or attempts to evade court proceedings;
(f) If he indulges in activities which would hamper smooth
investigation;
(g) If he is likely to flee from the country;
(h) If he attempts to make himself scarce by going
underground and/or becoming unavailable to the
investigating agency;
(i) If he attempts to place himself beyond the reach of his
surety.
(j) If any facts may emerge after the grant of bail which
are considered unconducive to a fair trial.
We may clarify that the aforesaid list is only illustrative in
nature and not exhaustive.”
57. The governing principle is that if the accused tampers
with evidence, threatens witnesses, or attempts to subvert
the trial, the indulgence of bail is to be withdrawn. It is a
recognition that liberty is conditional, not absolute, and
subject always to the larger interest of ensuring a fair trial.
Considerations for cancellation of bail must always be on
the basis of the well settled principles as discussed
aforesaid. There cannot be any extraneous considerations
involved that are unknown to the law of bails.
58. At the same time, emphasis has to be laid that
cancellation of bail occupies a distinct space in the
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criminal justice machinery. Cancellation intervenes at the
stage of violation, to prevent recurrence. In State through
Delhi Administration v. Sanjay Gandhi, (1978) 2 SCC
411, this Court underscored that tampering with witnesses
constitutes a cogent ground for cancellation, for the
“opportunity of being on bail cannot be permitted to be
abused for the purpose of thwarting the course of justice.”
Similarly, in Raghubir Singh v. State of Bihar, (1986) 4
SCC 481, it was reiterated that intimidation of witnesses is
sufficient to revoke the liberty granted. It must be guided
by the lodestar of preventing interference with witnesses
that “strikes at the root of the rule of law.”
59. Thus, the considerations that must weigh with the
court for setting aside the bail order on an application
being moved by the aggrieved party include any
supervening circumstances that might have occurred after
granting relief to the accused, the conduct of the accused
while on bail, any attempt on the part of the accused to
procrastinate, resulting in delaying the trial, any instance
of threats being extended to the witnesses while on bail,
any attempt on the part of the accused to tamper with the
evidence in any manner etc.”
(Emphasis supplied)
54. In Pradeep Ram Case (supra), Hon’ble
Supreme Court has held as follows, explaining the meaning
and scope of the provisions of Sections 437(5) and 439(2) Cr.PC
which provide for cancellation of bail :
“23. Both Sections 437(5) and 439(2) empower the court
to arrest an accused and commit him to custody, who has
been released on bail under Chapter XXXIII. There may
be numerous grounds for exercise of power under
Sections 437(5) and 439(2). The principles and grounds
for cancelling a bail are well settled, but in the present
case, we are concerned only with one aspect of the matter
i.e. a case where after accused has been granted the bail,
new and serious offences are added in the case. A person
against whom serious offences have been added, who is
already on bail can very well be directed to be arrested
and committed to custody by the court in exercise of
power under Sections 437(5) and 439(2). Cancelling the
bail granted to an accused and directing him to be arrested
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and taken into custody can be one course of action, which
can be adopted while exercising power under Sections
437(5) and 439(2), but there may be cases where without
cancelling the bail granted to an accused, on relevant
consideration, court can direct the accused to be arrested
and committed to custody. The addition of serious
offences is one of such circumstances, under which the
court can direct the accused to be arrested and committed
to custody despite the bail having been granted with
regard to the offences with which he was charged at the
time when bail was considered and granted.”
(Emphasis supplied)
55. Accordingly, the present petition is dismissed as
not maintainable and the petitioner or the investigating agency
or the informant can pursue the remedy as discussed above. If
the petitioner surrenders before the Court by 15th of May, 2026
and file regular bail application, the Court concerned would be
required to dispose of the regular bail application of the
petitioner on the same day, and if there is unavoidable delay in
disposal of the application, the petitioner would not be taken
into custody till disposal of his application.
(Jitendra Kumar, J.)
Ravishankar/
Chandan/ Shoaib
AFR/NAFR A.F.R.
CAV DATE 25.03.2026.
Uploading Date 04.05.2026.
Transmission Date 04.05.2026.
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