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The Supreme Court has recently held that “merely because it was kept open for the petitioners to surrender and apply for Regular Bail after the filing of the charge sheet, the same does not preclude the petitioners from applying for anticipatory bail under Section 438 Cr.P.C. after filing of the charge sheet”.

A division bench of Justice R Subhash Reddy and Justice Hrishikesh Roy noted that, 

“It also cannot be said, that same is a second application for grant of anticipatory bail...on the same cause of action."

The apex court granted anticipatory bail to an elderly couple in a case u/s 323, 498 A, 304B IPC r/w 3 & 4 Dowry Prohibition Act. The Court set aside the order of the High Court of Allahabad.

Senior Advocate Siddhartha Dave Assisted by Advocate on Record Pallavi Pratap submitted that the present anticipatory bail application cannot be considered as Second Anticipatory Bail Application.

However, counsel for the respondent argued that the instant bail application was Contempt of Court and therefore, cannot be entertained. An argument was also made with respect to the presence of the Petitioners at the scene of crime as the watchman identified them as present.

To which the bench without going into the merits of the case said that if there are people screaming and shouting and as a result of which a crowd comes at the scene of crime, that by itself will not impute that the Petitioners’ had malafide intention or had committed a crime.

The brief facts leading to the case were that the petitioner's daughter-in-law had committed suicide and the petitioner who lived away from the son and the daughter-in-law were wrongfully implicated. At the time of filing of Anticipatory Bail Application, the Apex Court had granted them protection till the filing of the charge sheet.
Once the same was filed, the Petitioners’ approached the Hon’ble High Court for anticipatory bail till the end of the trial. The same was rejected whereby the High Court observed that the ‘second’ anticipatory bail cannot lie and that the Petitioners’ will have to surrender and apply for regular bail.

However, the top court noted,

“This Court while issuing notice also granted protection to the petitioners from arrest. For the aforesaid reasons, we are of the view that it is a fit case for grant of anticipatory bail. The order impugned is set aside. The special leave petition is disposed of granting anticipatory bail to the petitioners, subject to such conditions, to be imposed by the Trial Court. Pending application(s) shall also stand disposed of.”

Case Title: Vinod Kumar Mishra & Anr. Vs. State of Uttar Pradesh & Anr