The Uttarakhand High Court strives to resolve conflicts arising upon conflicting orders passed by the Honorable Supreme Court dealing with cases as to whether anticipatory bail application filed after filing of chargesheet ought to be entertained or not. : Uttarakhand High Court.

The Uttarakhand High Court passed an order on 17th August, 2022 dealing with multiple cases with similar facts, wherein it looked upon the issue of granting anticipatory bail to applicants even after the chargesheet has been filed in the court against the same. This was seen in the case of Saubhagya Bhagat vs State Of Uttarakhand And Others (Anticipatory Bail Application No. 76 of 2021) and the case was presided over by The Honorable Mr. Justice Ravindra Maithani.


The learned Single Judge in this case dealt with multiple cases at once, felt the need to make a reference, in view of conflicting decisions of the Benches of the Honorable Supreme Court, one holding that in the case of  Sushila Aggarwal and others v. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Constitution Bench of the Hon’ble Supreme Court has held that anticipatory bail may be entertained till charge sheet has not been filed.

“7.1. At the outset, it is required to be noted that as such the expression “anticipatory bail” has not been defined in the Code. As observed by this Court in Balchand Jain [Balchand Jain v. State of M.P., (1976) 4 SCC 572: 1976 SCC (Cri) 689], “anticipatory bail” means “bail in anticipation of arrest”. As held by this Court, the expression “anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently granted by the court in anticipation of arrest. An application for “anticipatory bail” in anticipation of arrest could be moved by the accused at a stage before an FIR is filed or at a stage when FIR is registered but the charge-sheet has not been filed and the investigation is in progress or at a stage after the investigation is concluded. Power to grant “anticipatory bail” under Section 438 CrPC vests only with the Court of Session or the High Court. …………………………”

And another holding that the Hon’ble Supreme Court observed that “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 chargesheet.” in the case – Vinod Kumar Sharma and another v. State of Uttar Pradesh and another, 2022 (1) Crimes (SC).

The court also observed that-

The judgement in the case of Sushila Aggarwal (supra) was delivered on 29.1.2020, but the judgement in the case of Vinod Kumar Sharma (supra) was delivered on 16.11.2021. Fact remains that the law formulated in the case of Sushila Aggarwal (supra) has not been referred to by the Hon’ble Supreme Court in the case of Vinod Kumar Sharma (supra).


In view of the above contradiction the learned Single Bench has made a reference to a Larger Bench for determining the following question:

“Whether an application for anticipatory bail is maintainable after the charge sheet has been filed in the court?”

Interim orders, if any, passed in any of the cases, shall remain in force till the next date of listing.

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