Having the option to waive and seek regular bail after indictment is filed does not prevent parties from seeking early bail: Supreme Court

The Supreme Court observed on Tuesday (“November 16”) that simply because it had remained open to the parties to surrender and seek regular bail after the indictment was filed, the same was preventing them. to apply for early bail u / s 438 Cr.PC after filing of the indictment.

The bench of Judges R Subhash Reddy and Hrishikesh Roy in the present case, he was hearing a request for special leave against the order of the High Court of Allahabad dated July 23, 2021 (“contested order”).

Pursuant to the impugned order, the High Court had dismissed the applicant’s second request for provisional release. The High Court, referring to the Top Court order dated October 7, 2020, observed that there was no question of filing a second application for early bail and that the applicants should have complied with the instruction of the Supreme Court by going to the lower court and moving for an ordinary bond.

While observing that it was appropriate to grant advance bail and set aside the contested order, the judges in their order observed,

“Neither can it be said that this is a second application for early bail, as argued by eminent counsel for the respondents, on the same cause of action. , it is also brought to our knowledge that the husband of the deceased was granted due bail after his arrest. This Court, while issuing an opinion, also granted protection to the applicants against arrest. “

Factual background

The applicants who were the deceased’s stepfather and stepmother were wanted to be prosecuted for the offenses u / s 323, 498A, 304B IPC r / w Section 3 and 4 of the Dowry Prohibition Act . Before the indictment was filed, they were granted early bail by the High Court on October 7, 2020.

While granting bail, the Court observed that by virtue of the filing of the indictment, the applicants were free to surrender and apply for proper bail before the competent court. After the indictment was filed, when the application for advance bail was filed, the contested order was made on the basis of the observation made by this Court in the earlier order. .

Case title: Vinod Kumar Sharma and Anr against the State of Uttar Pradesh and Anr | Special leave to appeal (Crl.) No. 6057/2021

Coram: Judges R Subhash Reddy and Hrishikesh Roy

Advice: Senior Counsel Siddharth Dave appeared for the petitioners; Additional General Counsel Vinod Diwakar appeared for UP State and Attorney Sudhir Naagar appeared for Respondent 2

Click here to read / download the order