Accused On Interim Bail Cannot Be Arrested Merely Because New Offences Are Added: Allahabad High Court Orders Inquiry Against Cop
The Allahabad High Court has observed that an accused who is already on interim bail in a case cannot be arrested merely because additional offences have been added during the course of investigation, without the police first approaching the concerned court for appropriate orders.
A Bench of Justice Samit Gopal termed the arrest of an accused, while on interim bail, booked under various provisions of BNS and the SC/ST Act as 'arbitrary'. The Court also directed an inquiry into the conduct of the concerned police officer(s).
The bench thus allowed an appeal filed by Durgesh Yadav, challenging the rejection of his bail application by the Special Judge (SC/ST Act), Azamgarh.
Case in brief
Briefly put, the FIR was registered at a Police Station in Azamgarh on the allegation that the applicant had abused and assaulted the informant's wife at his tea shop on March 27, 2026.
The applicant was initially granted interim bail on April 9, 2026, and the protection was subsequently extended on several dates.
The record showed that on April 28 and April 29, interim bail was again granted/continued, while on May 5, the trial court extended the interim bail until May 8. On these dates, the prosecution papers and case diary were apparently not available before the trial court.
However, Yadav was arrested by the police on May 6, while the interim bail order was still subsisting.
The appellant contended that he had been arrested from the court premises after attending proceedings, while proceeding to take possession of his motorcycle, without any specific order from the trial court.
The State, however, submitted that the arrest took place near Nizamabad Mod railway crossing and that the accused was subsequently produced before the concerned court, which granted remand.
It was argued that the interim bail had been granted under the earlier sections, whereas the penal sections had subsequently been added/amended during the investigation.
It may be noted that the FIR was initially registered under Sections 115(2), 352 and 351(3) BNS and provisions of the SC/ST Act. During the investigation, Sections 109 and 117(2) of the BNS were added, while one provision of the SC/ST Act was also amended.
The State's position was that because the interim bail had been granted under the earlier sections and the investigation was subsequently proceeding under the altered/additional sections, the accused could very well be arrested.
High Court's observations
At the outset, the Court referred to Supreme Court Judgments in Pradeep Ram vs. State of Jharkhand 2019, Manoj Suresh Jhadav vs. State of Maharashtra 2018 and Bhadresh Bipinbhai Sheth vs. State of Gujarat 2015.
Justice Gopal observed that the law is clear: if an accused is already on bail under some sections and other sections are subsequently added against him during the course of investigation, then the police cannot arrest the accused, ignoring the earlier bail order.
The bench added that it would have been appropriate for the Investigating Agency to send a report to the court concerned from which the appellant was granted interim bail, bringing the facts to its notice, and await the decision of the court.
"The Investigating Agency should have had patient to inform the court and seek appropriate orders in the facts of the case and then proceed in accordance with law…but the police on its own could not have jumped to arrest him in the same case crime number even after alteration of sections", the bench further remarked.
It said the Investigating Agency should instead have informed the court that had granted interim bail and awaited its decision.
The Court further observed that the situation was particularly significant because the regular bail application was itself pending before the trial court.
It, therefore, found the act of the said police officer to be 'arbitrary'.
Therefore, allowing the appeal, the High Court set aside the Special Judge's order dated May 29, 2026, and directed that Durgesh Yadav be released on bail, subject to conditions.
The Court additionally directed the SSP, Azamgarh, to institute an inquiry into the conduct of the concerned officer(s).
The inquiry is to be conducted by an officer not below the rank of Additional Superintendent of Police and is to reach its logical conclusion at the earliest. The SSP has been directed to submit a compliance report to the High Court within three weeks.
The matter has been listed for September 14, 2026, for consideration of the inquiry report.
Counsel for Appellant(s): Pradeep Yadav
Counsel for Respondent(s): AGA Ajay Singh, Saurabh Kumar Pandey,
Case title - Durgesh Yadav vs. State of U.P. and Another 2026 LiveLaw (AB) 615
Case Citation: 2026 LiveLaw (AB) 615