BNSS court permission for further investigation required only during trial, not before charges are framed, rules Orissa High Court

The five petitioners sought pre-arrest bail under Section 482 of the BNSS in connection with G.R. Case No. 238 of 2025, arising out of Purusottampur P.S. Case No. 240 of 2025, registered for offences under Sections 103(1) and 3(5) of the BNS.

The prosecution alleged that, on 28 March 2025, the informant and his brother, Sumanta Mohapatra, were travelling by motorcycle when the accused persons allegedly formed an unlawful group and assaulted Sumanta with weapons. Sumanta was taken to hospital and subsequently died from his injuries.

The police initially filed a charge-sheet on 8 July 2025 against two accused persons while expressly keeping the investigation open under Section 193(9) of the BNSS for arresting the remaining accused and establishing the identity of other persons involved.

A further charge-sheet was filed on 10 December 2025, again keeping the investigation open and naming the present petitioners as accused persons.

The petitioners contended that further investigation could not lawfully continue without permission of the trial court and that, as they had not been arrested, they were entitled to pre-arrest bail.

The State and the informant opposed the applications, relying on the statements of the informant and several alleged eyewitnesses indicating the petitioners’ prima facie involvement.

1. Whether the proviso to Section 193(9) of the BNSS requires permission of the trial court before further investigation can be conducted in respect of accused persons against whom charges have not yet been framed?

2. Whether the petitioners were entitled to pre-arrest bail in view of the allegations of murder, the witness statements indicating their prima facie involvement, and the pending further investigation?

Section 193(9) of the BNSS permits further investigation after submission of a police report and requires the investigating officer to submit a further report regarding subsequently discovered evidence; its proviso requires permission of the court for further investigation conducted during the trial, which must ordinarily be completed within ninety days, subject to extension.

Sections 103(1) and 3(5) of the BNS govern murder and liability for criminal acts done by several persons in furtherance of common intention.

The Court relied on Pramod Kumar v. State of Uttar Pradesh, Gajendra Singh Shekhawat v. State of Rajasthan, Vakil Prasad Singh v. State of Bihar, and Robert Lalchungnunga Chongthu v. State of Bihar for the principles governing further investigation, judicial oversight, and speedy investigation and trial.

It also considered Paliniswamy Veeraraja v. State of Karnataka, which reaffirmed that investigation cannot continue indefinitely and that unexplained investigative delay may, in an appropriate case, be examined under the High Court’s inherent jurisdiction.

The principles governing pre-arrest bail, including those referred to in Satender Kumar Antil v. CBI, were also considered.

The Court held that the proviso to Section 193(9) of the BNSS is directed to further investigation conducted during the trial, thereby protecting an accused who is already facing trial from an open-ended investigation that could prejudice preparation of the defence.

It rejected the petitioners’ broader interpretation that permission of the trial court is necessary in every case, including against persons who have not been arrested or against whom charges have not been framed. Such an interpretation would erase the legislative distinction between an accused facing trial and an accused whose complicity remains under investigation or against whom the prosecution is seeking to proceed.

The Court further noted that the charge-sheets expressly stated that investigation was being kept open for arresting the remaining accused, and that the petitioners had been specifically named therein.

Their alleged involvement was supported prima facie by statements of the informant, the deceased’s brother, and several witnesses claiming to have witnessed the occurrence.

In light of the gravity of the allegation—murder under Section 103(1) of the BNS—the material indicating the petitioners’ complicity, and the alleged threat-related FIRs placed before the Court, the Court found no sufficient basis for extending the exceptional protection of pre-arrest bail.

The Court nevertheless clarified that investigative delay may be examined in an appropriate proceeding and that its observations on prima facie involvement were limited to adjudication of anticipatory bail.

The applications for pre-arrest bail were dismissed.

However, if the petitioners surrender before the court in seisin and apply for regular bail, the application was directed to be considered on its own merits; any plea of parity could also be considered by the subordinate court.

The Court clarified that its observations would not prejudice consideration of regular bail or the determination of the petitioners’ guilt at trial.