Allahabad High Court

KHUSHBUversusSTATE OF U.P. AND ANOTHER

Decided: 22 September 2026
Bench: VIVEK KUMAR SINGH

Holding

The Court declined to grant anticipatory bail, holding that the applicant is not entitled to such relief.

Summary

The Allahabad High Court considered an anticipatory bail application filed by Khushbu, the sister‑in‑law of a deceased woman alleged to have died by dowry‑related poisoning. The FIR, lodged a week after the incident, implicated the applicant based on a dying declaration that named her as the person who administered the poison. The applicant claimed innocence, no prior criminal record, and offered to cooperate with the investigation. The State opposed, citing the seriousness of the dowry death offence, the dying declaration, and Supreme Court precedents that treat anticipatory bail as an extraordinary remedy. After examining the facts and relevant case law, the Court held that the circumstances did not warrant the extraordinary relief of anticipatory bail and dismissed the application.

Issues considered

Whether anticipatory bail under Section 438 CrPC/Section 482 B.N.S. should be granted to the accused in a dowry death case involving a dying declaration.
Whether the applicant has discharged the burden of showing that the case against her is false and that she will not tamper with evidence or flee.

Legislation cited

B.N.S. — s. 80(2), 85
Code of Criminal Procedure, 1973 — s. 438, 482
Dowry Prohibition Act, 1986 — s. 3, 4

Subjects

anticipatory bail
dowry death
dying declaration
Section 438 CrPC
Section 482 CrPC
extraordinary power
bail jurisprudence
criminal procedure

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. ANTICIPATORY BAIL APPLICATION U/S 482 BNSS No.
- 9922 of 2026

Khushbu
.....Applicant(s)
Versus

State of U.P. and Another
.....Opposite
Party(s)

Counsel for Applicant(s) : Rajesh Kumar Roy Sharma
Counsel for Opposite Party(s) : G.A., Jitendra Pal Singh Jadaun

Court No. - 72
HON'BLE VIVEK KUMAR SINGH, J.

1. Heard learned counsel for the applicant and learned A.G.A for the State
and perused the record.

2. The present application has been filed on behalf of the applicant in Case
Crime No. 263 of 2026, under Sections 85, 80(2) B.N.S. and Section 3/4 of
D.P. Act, Police Station Atrauli, District Aligarh with a prayer to grant her
anticipatory bail.

3. Learned counsel for the applicant submits that the applicant is absolutely
innocent and has been falsely implicated in the present case. She has nothing
to do with the alleged offence in spite of that the police are trying to arrest
the applicant. The alleged incident is said to have taken place on 12.5.2026,
whereas the first information report was lodged after a long delay on
19.5.2026. The delay in lodging the first information report has not been
satisfactorily explained by the prosecution. General and omnibus allegations
have been levelled against the applicant. The applicant is sister-in-law
(nanad) of the deceased. The deceased had written a letter to the hospital,
wherein she stated that she herself consumed poison. It is further submitted
that in the dying declaration, no allegation has been levelled against the
applicant. The applicant has no criminal antecedent to her credit. Learned
counsel for the applicant further submits that the applicant undertakes to
cooperate during investigation and trial and shall appear as and when
required by the Investigating Agency or the Court concerned. It has also
been stated that, in case the applicant is granted anticipatory bail, she shall
NABAIL No. 9922 of 2026
2

not misuse the liberty of bail, shall cooperate with the investigation, and
shall abide by all the conditions that may be imposed by the Court.

4. On the other hand, learned A.G.A. has opposed the application for
anticipatory bail. It is further submitted that the police was informed on Dial
112 on 12.5.2026. Dying declaration of the deceased was recorded by the
Sub Inspector Shrawan Kumar, wherein the deceased stated that her sister-
in-law had administered some thing to her. There is no other sister-in-law of
the deceased. The deceased has been nominated in the first information
report. The marriage of the victim / deceased was solemnized with Upendra
on 15.5.2025 and within a period of one year, the deceased died in her
matrimonial home under unnatural circumstances. The applicant has failed
to discharge her burden of proof in the matter and presumption is against the
applicant in respect of dowry death. It is further submitted that the present
anticipatory bail application is not maintainable in view of the judgment
of Hon'ble Apex Court in the case of Srikant Upadhyay and Others vs.
State of Bihar and Another, (2024) 12 SCC 382.

5. I have heard the rival submissions of both sides and perused the record.

6. The marriage of the deceased and her husband was solemnized on
15.5.2025. The deceased died under unnatural circumstanced within one
year from the date of her marriage. Dying declaration was also recorded by
the Sub Inspector Shrawan Kuumar, wherein the deceased stated that some
thing was administered to her by the applicant. Criminal Misc. Writ Petition
No. 18024 of 2026 filed by the applicant has already been dismissed by a
Division Bench of this Court vide order dated 19.8.2026. It has been held in
various judgment of the Hon'ble Supreme Court that bail is a rule but jail
is an exception, but so far as anticipatory bail is concerned, it ought to
have been granted in exceptional cases since it is an extraordinary power.

7. In the case of Srikant Upadhyay and Others vs. State of Bihar and
Another, (2024) 12 SCC 382, the Hon'ble Supreme Court has held that the
power to grant anticipatory bail is an extraordinary power. While called
upon to exercise the said power, the Court has to be very cautious as the
grant of interim protection or protection to the accused in serious cases may
lead to miscarriage of justice. When warrant of arrest or proclamation is
NABAIL No. 9922 of 2026
3

issued, the applicant is not entitled to invoking extraordinary power. The
relevant paragraph no. 30 of Srikant Upadhyay (supra) is quoted as under:

"30. We have already held that the power to grant anticipatory bail is an
extraordinary power. Though in many cases it was held that bail is said
to be a rule, it cannot, by any stretch of imagination, be said that
anticipatory bail is the rule. It cannot be the rule and the question of its
grant should be left to the cautious and judicious discretion by the Court
depending on the facts and circumstances of each case. While called upon
to exercise the said power, the Court concerned has to be very cautious
as the grant of interim protection or protection to the accused in serious
cases may lead to miscarriage of justice and may hamper the
investigation to a great extent as it may sometimes lead to tampering or
distraction of the evidence. We shall not be understood to have held that
the Court shall not pass an interim protection pending consideration of
such application as the Section is destined to safeguard the freedom of an
individual against unwarranted arrest and we say that such orders shall
be passed in eminently fit cases. At any rate, when warrant of arrest or
proclamation is issued, the applicant is not entitled to invoke the
extraordinary power. Certainly, this will not deprive the power of the
Court to grant pre-arrest bail in extreme, exceptional cases in the interest
of justice. But then, person(s) continuously, defying orders and keep
absconding is not entitled to such grant."

8. In the case of P. Chidambaram vs. Directorate of Enforcement, (2019)
9 SCC 24, the Hon'ble Apex Court has held that arrest is a part of procedure
of the investigation to secure not only the presence of the accused but
several other purposes. The power under Section 438 of Cr.P.C./482 of
B.N.S.S. has to be exercised sparingly. The privilege of the pre-arrest bail
should be granted only in exceptional cases. The relevant paragraph no. 69
of P. Chidambaram (supra) is reproduced as under:

"69. Ordinarily, arrest is a part of procedure of the investigation to
secure not only the presence of the accused but several other purposes.
Power under Section 438 Cr.P.C. is an extraordinary power and the same
has to be exercised sparingly. The privilege of the pre-arrest bail should
be granted only in exceptional cases. The judicial discretion conferred
NABAIL No. 9922 of 2026
4

upon the court has to be properly exercised after application of mind as
to the nature and gravity of the accusation; possibility of the applicant
fleeing justice and other factors to decide whether it is a fit case for grant
of anticipatory bail. Grant of anticipatory bail to some extent interferes in
the sphere of investigation of an offence and hence, the court must be
circumspect while exercising such power for grant of anticipatory bail.
Anticipatory bail is not to be granted as a matter of rule and it has to be
granted only when the court is convinced that exceptional circumstances
exist to resort to that extraordinary remedy. "

9. It would be apposite to refer herein to a judgment of the Hon'ble Supreme
Court titled as Kishor Vishwasrao Patil vs. Deepak Yashwant Patil and
another, 2022 SCC OnLine SC 2528, relevant paragraph nos.14 and 15
whereof read as under:

"14....................

74. Ordinarily, arrest is a part of the process of the
investigation intended to secure several purposes. There may
be circumstances in which the accused may provide
information leading to discovery of material facts and
relevant information. Grant of anticipatory bail may hamper
the investigation, Pre-arrest bail is to strike a balance
between the individual's right to personal freedom and the
right of the investigating agency to interrogate the accused
as to the material so far collected and to collect more
information which may lead to recovery of relevant
information........

6...........

75. Observing that the arrest is a part of the investigation
intended to secure several purposes, in Adri Dharan Das v.
State of W.B. [Adri Dharan Das v. State of W.B., (2005) 4
SCC 303: 2005 SCC (Cri) 933], it was held as under: (SCC
p. 313, para 19)

"19. Ordinarily, arrest is a part of the process of
NABAIL No. 9922 of 2026
5

investigation intended to secure several
purposes. The accused may have to be
questioned in detail regarding various facets of
motive, preparation, commission and aftermath
of the crime and the connection of other persons,
if any, in the crime. There may be circumstances
in which the accused may provide information
leading to discovery of material facts. It may be
necessary to curtail his freedom in order to
enable the investigation to proceed without
hindrance and to protect witnesses and persons
connected with the victim of the crime, to prevent
his disappearance, to maintain law and order in
the locality. For these or other reasons, arrest
may become an inevitable part of the process of
investigation. The legality of the proposed arrest
cannot be gone into in an application under
Section 438 of the Code. The role of the
investigator is well defined and the jurisdictional
scope of interference by the court in the process
of investigation is limited. The court ordinarily
will not interfere with the investigation of a
crime or with the arrest of the accused in a
cognizable offence. An interim order restraining
arrest, if passed while dealing with an
application under Section 438 of the Code will
amount to interference in the investigation,
which cannot, at any rate, be done under Section
438 of the Code."

76. In Siddharam Satlingappa Mhetre v. State of
Maharashtra and Others, (2011) 1 SCC 694: (2011) 1 SCC
(Cri) 514], the Supreme Court laid down the factors and
parameters to be considered while dealing with anticipatory
bail. It was held that the nature and the gravity of the
accusation and the exact role of the accused must be
properly comprehended before arrest is made and that the
NABAIL No. 9922 of 2026
6

court must evaluate the available material against the
accused very carefully. It was also held that the court should
also consider whether the accusations have been made only
with the object of injuring or humiliating the applicant by
arresting him or her.

77. After referring to Siddharam Satlingappa Mhetre
[Siddharam Satlingappa Mhetre v. State of Maharashtra,
(2011) 1 SCC 694: (2011) 1 SCC (Crl) 514] and other
judgments and observing that anticipatory bail can be
granted only in exceptional circumstances, in Jai Prakash
Singh v. State of Bihar [Jai Prakash Singh v. State of
Bihar, (2012) 4 SCC 379: (2012) 2 SCC (Cri) 468], the
Supreme Court held as under: (SCC p. 386, para 19)

"19. Parameters for grant of anticipatory bail in
a serious offence are required to be satisfied and
further while granting such relief, the court must
record the reasons therefor. Anticipatory bail
can be granted only in exceptional
circumstances where the court is prima facie of
the view that the applicant has falsely been
enroped in the crime and would not misuse his
liberty. (See D.K. Ganesh Babu v. P.T.
Manokaran [D.K. Ganesh Babu v. P.T.
Manokaran, (2007) 4 SCC 434 :(2007) 2 SCC
(Cri) 345], State of Maharashtra v. Mohd. Sajid
Husain Mohd. S. Husain [State of
Maharashtra v. Mohd. Sajid Husain Mohd. S.
Husain, (2008) 1 SCC 213: (2008) 1 SCC (Cri)
176] and Union of India v. Padam Narain
Aggarwal [Union of India v. Padam Narain
Aggarwal, (2008) 13 SCC 305: (2009) 1 SCC
(Cri) 1].)"

Economic offences

78. Power under Section 438 CrPC being an extraordinary
NABAIL No. 9922 of 2026
7

remedy, has to be exercised sparingly; more so, in cases of
economic offences. Economic offences stand as a different
class as they affect the economic fabric of the society. In
Directorate of Enforcement v. Ashok Kumar Jain
[Directorate of Enforcement v. Ashok Kumar Jain, (1998) 2
SCC 105: 1998 SCC (Cri) 510], it was held that in economic
offences, the accused is not entitled to anticipatory bail."

15. In Sushila Agrawal and others v. State (NCT of Delhi) and Another
reported in (2020) 5 SCC 1, Constitution Bench of this Court held that
while considering an application for grant of pre-arrest bail the Court
has to consider the nature of the offence, the role of the person, the
likelihood of his influencing the course of investigation, or tampering
with evidence or likelihood of fleeing justice. The Court held:-

"92.4. Courts ought to be generally guided by considerations
such as the nature and gravity of the offences, the role
attributed to the applicant, and the facts of the case, while
considering whether to grant anticipatory bail, or refuse it.
Whether to grant or not is a matter of discretion; equally
whether and if so, what kind of special conditions are to be
imposed (or not imposed) are dependent on facts of the case,
and subject to the discretion of the court."

10. As per the allegations put forth in the FIR, serious allegations have been
levelled against the applicant. The investigation is at a preliminary stage, and
the custodial interrogation of the applicant is necessary to unearth the truth.
Learned counsel for the applicant has failed to demonstrate that the case
registered against him is false. At this stage, there is no material on record to
hold that a prima facie case is not made out against the applicant. The
material that has come on record and the preliminary investigation, appear to
establish a reasonable basis for the accusations.

11. In view of this Court, the parameters of granting regular bail and
anticipatory bail are different and it is not necessary that the grounds which
are sufficient to enlarge an accused on regular bail must also be sufficient to
enlarge him on anticipatory bail. Further, the Constitution Bench of the
Apex Court in the case of Gurbaksh Singh Sibbia and others Vs. State of
NABAIL No. 9922 of 2026
8

Punjab, (1980) 2 SCC 565 also observed that the power to grant
anticipatory bail is an extraordinary power and therefore in view of this
Court being extraordinary power it cannot be used in routine manner.

12. Therefore, considering the facts and circumstances of the case discussed
above, in my view, applicant is not entitled to be released on anticipatory
bail.

13. Accordingly, the instant anticipatory bail application stands dismissed.

14. Interim order, if any, stands vacated.

15. Registrar (Compliance) is directed to send a copy of this order to the
learned court concerned through fastest mode.

(Vivek Kumar Singh,J.)
September 23, 2026
Lalit Shukla

Digitally signed by :-
LALIT KUMAR SHUKLA
High Court of Judicature at Allahabad

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