Anticipatory Bail Not Maintainable For Person Already In ‘Constructive Custody’ Of Law; Successive Plea Without Change In Circumstances Barred: Punjab & Haryana HC

"A person released on bail is already in constructive custody of law and if the law requires him to come back to custody for some specified reason, an application for anticipatory bail apprehending his arrest would not lie since there cannot be any apprehension of arrest by a person already in constructive custody of law," Punjab and Haryana High Court, in a significant ruling dated April 30, 2026, held that an application for anticipatory bail is not maintainable when the applicant is already on regular bail, as they are considered to be in the "constructive custody" of the law.

A bench of Justice Manisha Batra observed that in cases where a graver offence is added during trial, the appropriate remedy for the accused is to surrender and apply for regular bail rather than seeking protection from arrest under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

The petitioner was allegedly involved in the death of his wife, who had accused him of forcibly administering a poisonous substance. While the FIR was initially registered under Section 302 IPC, it was later diluted to Sections 306 and 201 IPC, and the petitioner was granted regular bail in August 2024. However, during the trial, the court allowed an application for alteration of charges, ordering the framing of charges under the more severe Section 302 IPC (Murder), prompting the petitioner to seek anticipatory bail.

The primary question before the court was whether a second petition for anticipatory bail is maintainable when a previous plea was dismissed just days prior without any change in circumstances. The court was also called upon to determine if a person already on bail for certain offences can legally maintain an application for anticipatory bail when a graver, non-bailable offence is subsequently added to the case.

Second Petition Without Change In Circumstances Not Maintainable

The court first addressed the procedural propriety of the petitioner’s move, noting that the previous anticipatory bail petition had been dismissed on April 6, 2026. This second petition was filed a mere ten days later, on April 16, 2026. Justice Batra emphasized that the petition failed to disclose any "substantial or drastic change" in circumstances that would warrant a fresh consideration by the High Court.

"The petition does not disclose any change in circumstances, what to say about any substantial or drastic change. On this very ground, the petition cannot be stated to be maintainable."

The Doctrine Of Constructive Custody

Delving into the merits of maintainability, the court relied on the Supreme Court’s decision in Manish Jain v. Haryana State Pollution Control Board. The bench explained that a person who has already been released on bail continues to remain under the constructive custody of the court. Consequently, such an individual cannot claim to have a reasonable "apprehension of arrest" in the same case, which is a prerequisite for seeking anticipatory bail.

"A person released on bail is already in constructive custody of law and if the law requires him to come back to custody for some specified reason, an application for anticipatory bail apprehending his arrest would not lie."

Legal Remedies When Graver Offences Are Added

The court highlighted the settled legal position regarding the addition of graver, non-bailable offences after an accused has already secured bail. Referencing the apex court's rulings in Pradeep Ram v. State of Jharkhand and the more recent Sumit v. State of U.P., the bench noted that the law provides specific avenues for both the accused and the investigating agency in such scenarios.

"Accused Can Surrender And Apply For Regular Bail"

Justice Batra observed that the primary option for an accused facing newly added cognizable and non-bailable offences is to surrender before the court and apply for regular bail. The bench clarified that if the court subsequently refuses bail for these new offences, the accused can then be taken into physical custody. This process ensures the legal requirements of custody are met without bypassing the standard trial court hierarchy.

"Appropriate Remedy Lies In Surrender, Not Anticipatory Bail"

The court further noted that the investigating agency or the court itself has powers under Section 437(5) or Section 439(2) of the CrPC (now corresponding to BNSS provisions) to seek the arrest or cancellation of bail. The court may direct the person to be committed to custody upon the addition of graver offences, and such an order does not always necessitate the formal cancellation of the earlier bail granted for lesser offences.

"In view of the proposition of law laid down in aforecited cases, it is explicit that an application for grant of anticipatory bail in the peculiar circumstance like in this case cannot be stated to be maintainable at all."

The High Court concluded that there were no grounds to allow the petition, as the legal framework explicitly directs such applicants toward surrender and regular bail proceedings. Dismissing the plea, the court reaffirmed that the protective umbrella of anticipatory bail cannot be extended to those already within the judicial system's constructive oversight.

Date of Decision: 30 April 2026