TaxTMI 
TaxTMI 
2023 (8) TMI 1441
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....al, Chetna Latwal, Sandeep Kothari, Gaurav Singh, Pooran Singh Rawat, Rajveer Singh, Abhishek Verma, Raj Kumar Singh, Vikas Bahuguna, Rajat Mittal, B.S. Adhikari, Bilal Ahmed, Sanjeev Singh, Navneet Kaushik, Safdar, Advocates For the Respondent : J.S. Virk, Learned Deputy Advocate General, Rakesh Kumar Joshi, Pankaj Joshi, Learned Brief Holders, Prabha Naithani, B.D. Jha, Preeti Jha and Priyanka Jha, Learned Counsels JUDGMENT MANOJ KUMAR TIWARI, J. 1. The question which falls for consideration by this Larger Bench is whether an application for anticipatory bail is maintainable after charge sheet has been filed in the Court? 2. It transpires that a learned Single Judge of this Court had referred the aforesaid question to a Larger Bench vide order dated 17.08.2022. The said question was answered in the affirmative by a Division Bench vide order dated 7.9.2022. Learned Single Judge, however, was of the opinion that the issues raised in the order of reference have not been considered and then the question was again referred to Larger Bench vide order dated 28.9.2022, passed in ABA/76/2021 and connected matters. Thus, the issue is now before a Full Bench. 3. Since the ....
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....ion "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. .............................." (emphasis supplied) 3. A Division Bench of this Court has answered the reference on 07.09.2022. The Division Bench observed that anticipatory bail application is maintainable even after filing of the charge sheet. While answering, the Division Bench did not make any mention of the judgment in the case of Satender Kumar Antil (supra) and the judgment in the case of Sushila Aggarwal (supra). 4. The judgment in the case of Sushila Aggarwal (supra) has been passed by the Constitution Bench of the Hon'ble Supreme Court, in which the Hon'ble Supreme Court observed "An application for "ant....
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....from prison of a person awaiting trial or an appeal, by deposit of security to ensure his submission at the required time to legal authority. The monetary value of the security, known also as the bail, or, more accurately, the bail bond, is set by the court having jurisdiction over the prisoner. The security may be cash, the papers giving title to property, or the bond of private persons of means. Failure of the person released on bail to surrender himself at the appointed time results in forfeiture of the security. 7. The expression "bail" is not defined in the Code of Criminal Procedure. Hon'ble Supreme Court in the case of Vaman Narain Ghiya v. State of Rajasthan, reported as (2009) 2 SCC 281, has discussed the concept and philosophy of bail in para 6, 7 and 8 of the judgment, which are reproduced below: "6. "Bail" remains an undefined term in CrPC. Nowhere else has the term been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints. Since the UN Declaration of Human Rights of 1948, to which India is a signatory, the concept of bail has found a place within the scope of human rig....
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....the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt." 8. The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail and it is neither punitive nor preventative. In the case of Sanjay Chandra v. C.B.I., reported as (2012) 1 SCC 40, Hon'ble Supreme Court held that deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. Para 40 of the said judgment is reproduced below: "40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve....
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....er the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words 'custody' and 'arrest' are not synonymous terms. Though 'custody' may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences, vide Roshan Beevi. 49. While interpreting the expression 'in custody' within the meaning of Section 439 CrPC, Krishna Iyer, J. speaking for the Bench in Niranjan Singh v. Prabhakar Rajaram Kharote observed that: (SCC p. 563, para 9) "9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions."" (emphasis supplied) If the third sentence of para 48 is disco....
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....re. Hon'ble Supreme Court held that personal liberty in Article 21 includes all varieties of freedoms except those included in Article 19. 13. In Maneka Gandhi v. Union of India, reported as (1978) 1 SCC 248, Hon'ble Supreme Court expanded the scope of expression "Personal Liberty" as used in Article 21 of the Constitution of India and rejected the argument that the expression "Personal Liberty" must be so interpreted as to avoid overlapping between Article 21 and Article 19(1). In para 5 of the judgment, the following observation was made:- "---The expression "personal liberty" in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19." 14. Right to life is one of the basic human rights and not even the State has the authority to violate that right, as held by Hon'ble Supreme court in the case of State of Andhra Pradesh v. Challa Ramakrishna Reddy, reported as (2000) 5 SCC 712. 15. The Law Commission in its 41st Report dated September 24, 1969, emphasized the....
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....9;s submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is co....
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....7. Thirdly, the filing of a first information report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed. 38. Fourthly, anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested. 39. Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, insofar as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested." 20. In para 38 of the aforesaid judgment, Constitution Bench held that anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested. 21. In the case of Salauddin Abdulsamad Shaikh v. State of Maharashtra, reported as (1996) 1 SCC 667, a three-Judges Bench of Hon'ble Supreme Court took th....
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.... by another Constitution Bench of Hon'ble supreme Court in the case of Sushila Aggarwal & Others v. State (NCT of Delhi) & Others, reported as (2020) 5 SCC 1. 24. In the case of Siddharam Satlingappa Mhetre v. State of Maharashtra & Others, reported as (2011) 1 SCC 694, the view taken was that the order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply for regular bail is contrary to the legislative intent and also the judgment of the Constitution Bench in Gurbaksh Singh Sibbia. Para 104 of the said judgment is reproduced below: "104. The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail; this is contrary to the basic intention and spirit of Section 438 CrPC. It is also contrary to Article 21 of the Constitution. The test of fairness and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty." 25. The Constitution Bench in the case o....
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....the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the court; (iv) such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant sho....
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.... the earlier reference order dated 17.8.2022, in which extract of para 7.1 is reproduced as under: "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. .............................." (emphasis supplied)" 31. A careful perusal of the above extracted portion of para 7.1 reveals that the Constitution Bench has held that an application for anticipat....
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.... courts, under Section 438 of the Code, it did so in categorical terms. Parliament's omission to restrict the right of citizens, accused of other offences from the right to seek anticipatory bail, necessarily leads one to assume that neither a blanket restriction can be read into by this Court, nor can inflexible guidelines in the exercise of discretion, be insisted upon - that would amount to judicial legislation. 69. It is important to notice here that there is nothing in the provisions of Section 438 which suggests that Parliament intended to restrict its operation, either as regards the time period, or in terms of the nature of the offences in respect of which, an applicant had to be denied bail, or which special considerations were to apply. In this context, it is relevant to recollect that the court would avoid imposing restrictions or conditions in a provision in the absence of an apparent or manifest absurdity, flowing from the plain and literal interpretation of the statute (Ref. Chandra Mohan v. State of U.P.). In RBI v. Peerless General Finance & Investment Co. Ltd., the relevance of text and context was emphasised in the following terms : (SCC p. 450, para ....
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....re not expressly provided, the danger would be that several applicants who might otherwise be entitled to relief, would be denied it altogether. For example, the classification of an offence or a category of offences as one wanting special treatment where the courts should not grant relief, would mean that regardless of the role of the accused and the nature of materials shown (whether adequate or not), the courts would be rendered powerless and denuded of the otherwise amplitude of discretion provided by the statute." 34. The questions which fell for consideration before the Constitution Bench in the case of Sushila Aggarwal v. State (NCT of Delhi) are as follows: (i) Whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period so as to enable the person to surrender before the trial court and seek regular bail? (ii) Whether the life of anticipatory bail should end at the time and stage when the accused is summoned by the court? 35. The first question was answered by the Constitution Bench by holding that although conditions can be imposed by the Court while granting pre-arrest bail including limiting the operation o....
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....l in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. In our opinion, the courts i.e. the Court of Session, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non- bailable offences under Section 438 of CrPC even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the court to do so." 39. Similarly, in the case of Ravindra Saxena v. State of Rajasthan, reported as (2010) 1 SCC 684, Hon'ble Supreme Court was examining validity of the order passed by the High Court rejecting application for anticipatory bail on the ground that challan has been presented. Para 7 and 8 of the said judgment are reproduced below: "7. We are of the considered opinion that the approach adopted b....
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..... The FIR was registered and the trial commenced in the year 2001; albeit with the charge framed under Section 506 Part II IPC, and during all these periods, the appellant has participated in the proceedings. There is no allegation that during this period he had tried to influence the witnesses. In the aforesaid circumstances, even when there is a serious charge levelled against the appellant, that by itself should not be the reason to deny anticipatory bail when the matter is examined keeping in view other factors enumerated above." 41. Hon'ble Supreme Court in the case of Dr. Rajesh Pratap Giri v. State of U.P. & Another (Criminal Appeal No. 272-273 of 2021) relied upon the observation made in para 77.3 of the judgment rendered in Sushila Aggarwal (supra) and held that the High Court erred in holding that the anticipatory bail granted to the appellant by the trial court had come to an end with the filing of charge sheet. 42. Similarly, in the case of Vinod Kumar Sharma v. State of U.P. & Another, reported as 2021 SCC OnLine SC 3225, Hon'ble Supreme Court was dealing with a case where the accused persons were granted anticipatory bail with the observation that after ....
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....ction 3 & 4 of the Dowry Prohibition Act, the Court of Sessions dismissed his application for anticipatory bail on 28.6.2022; accused then approached High Court seeking anticipatory bail on 5.7.2022; no protection was granted till 7.8.2022, however, on 8.8.2022, High Court granted interim protection to the accused pending his anticipatory bail application; meanwhile, charge sheet was filed and cognizance was also taken on 1.10.2022; thereafter when pending anticipatory bail application was heard by High Court on 18.1.2023, it rejected the said application directing the accused to surrender before the competent court and seek regular bail; considering these factors and also highlighting the fact that the accused cooperated with the investigation both before 8.8.2022, when no protection was granted to him and after 8.8.2022, when he enjoyed protection till the filing of the charge sheet and the cognizance thereof on 1.10.2022, the Hon'ble Supreme Court observed, in para 14, that the High Court interpreted these factors in an entirely different light and that there was no startling features or elements that stand out or any exceptional fact disentitling the accused to the grant of....
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....dy when they appear in response to summoning orders. At times, an accused person, who has extended full cooperation during investigation, may have to suffer ignominy of being sent to judicial custody without any fault of his own. Since the language of Section 438 CrPC does not permit of any such limitation or restriction, therefore, such limitation cannot be read into the statute so as to whittle down the scope of Section 438. The Constitution Bench in the case of Gurbaksh Singh Sibbia and Shushila Aggarwal have also held against reading any blanket restriction into Section 438 of the CrPC. 48. It is settled position in law that external aids cannot be used for interpreting a provision, when there is no ambiguity in the language of the statute. Law Commission's report, therefore, cannot be pressed into service for restricting the meaning of a statutory provision or for reading some conditions into it which are not provided by the legislature. 49. Hon'ble Supreme Court in the case of Satender Kumar Antil v. Central Bureau of Investigation, reported as (2021) 10 SCC 773, has nowhere held that provision for anticipatory bail made in Section 438 CrPC would not be applicab....
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....ng is directly connected to his Right to Life. The social existence of a human being is directly connected to his personal liberty. The right to life and personal liberty may be termed as natural rights, inalienable rights and basic human rights and so they are engrafted under Article 21 of the Constitution of India guaranteeing these rights. This Article reads as hereunder:- "21. No person shall be deprived of his life or personal liberty except according to procedure established by law." 57. The right to life and personal liberty, as guaranteed, is also not absolute. A person may be deprived of it, but according to "procedure established by law." The Constituent Assembly debates reflect that deliberately "due process of law" has been avoided into it. 58. Right to Life and Liberty may, in fact, be traced back to Magna Carta, wherein it was recorded that No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. Whether the phrase "law of lan....
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....uld give the judiciary the power to question the law made by the legislature on another ground. That ground would be whether that law is in keeping with certain fundamental principles relating to the rights of the individual. In other words, the judiciary would be endowed with the authority to question the law not merely on the ground whether it was in excess of the authority of the legislature, but also on the ground whether the law was good law, apart from the question of the powers of the legislature making the law." 61. The journey of the interpretation of Article 21 from the case of A.K Gopalan A.K Gopalan v. State of Madras, 1950 SCC 228 to Maneka Gandhi Maneka Gandhi v.. Union of India, (1978) 1 SCC 248, proves that the Constitution of India is an organic and dynamic document and it evolves with the change of time. It also settles and proves that the interpretation of the Constitution is quite different than the interpretation of a statute. [(i) Cross-Statutory Interpretation (1976)- "No one would suggest that a written constitution should be construed for all times as if the court was sitting the day it was enacted.", and (ii) - In re The Central Provinces and Bera....
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....ce" means an offence for which, and "non-cognizable case" means a case in which, a police officer has no authority to arrest without warrant; " 65. The classification of offences under cognizable and non-cognizable offence is based on heinousness of the offence. In case, the offences that were considered by the Legislature a little more serious, they are classified as cognizable offences, in which case a police officer may arrest without warrant. Arrest Or Not To Arrest 66. There are various provisions relating to arrest in the Code, viz, Sections 41 (when Police may arrest without warrant), 42 (Arrest on refusal to give name and address), 43 (Arrest by private person and procedure on such arrest) and Section 44 (Arrest by Magistrate). 67. How the arrest is made, is defined under Section 46 of the Code. It reads as follows:- "46. Arrest how made.-(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action: Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her ....
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.... After examining the essence of these two provisions, the Hon'ble Supreme Court viewed that if these provisions are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. The Hon'ble Supreme Court thereafter laid down guidelines to be followed by the police officers or the Magistrates in the matters of arrest. It was so done that every arrest should be based on necessity, reason and logic and indiscriminate arrests may be avoided. Remand And Bail 72. Arrest is the curtailment of personal liberty. If a person is lawfully arrested by the police, he is detained by the police to a permissible limit, which is 24 hours. Thereafter, such person is produced before the Magistrate or court concerned. 73. If the investigation in any offence pertaining to a non- bailable offence could not be completed within twenty-four hours and the accused is in custody, he is required to be produced before the Magistrate. This is the mandate of Article 22(2) of the Constitution. Sections 57 and 167 of the Code also mandate it. If....
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.... Eventually it became the practice for property owners who accepted responsibility for accused persons to forfeit money when their charges failed to appear for trial. From this grew the modern practice of posting a money bond through a commercial bondsman who receives a cash premium for his service, and usually demands some collateral as well. In the event of non-appearance the bond is forfeited, after a grace period of a number of days during which the bondsman may produce the accused in court. Vera Institute of Justice Ten-year Report 1961-71, p.20" 77. How a Court should view the bail law and interpret the question relating to liberties have very succinctly been narrated by the Hon'ble Supreme Court in the case of Moti Ram (supra), when the Supreme Court, in Para 23, observed as follows:- "23. A semantic smog overlays the provisions of bail in the Code and prisoners' rights, when cast in ambiguous language become precarious. Where doubts arise the Gandhian talisman becomes a tool of interpretation: "Whenever you are in doubt. . . apply the following test. Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself....
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....uch facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in confirmity with the direction of the Court under sub-section (1). (4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860)." 81. A bare perusal of Section 438 of the Code reveals that it does not use the words "anticipatory bail". The only difference ....
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....or the grant of anticipatory bail. But one cannot go further and say that he must make out a "special case"." 85. In the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, the Hon'ble Supreme Court followed the principles as laid down in the case of Sibbia (supra) and observed that "there is no requirement that the accused must make out a "special case" for exercise of the power to grant anticipatory bail." This has further been affirmed in the case of Sushila Aggarwal (supra). Life Of Anticipatory Bail 86. Section 438 of the Code merely enables a person, who apprehends his arrest in a non-bailable offence, to apply for anticipatory bail. The question that had fallen for consideration on multiple occasions is as to what would be the life of anticipatory bail that has been granted during investigation. In the case of Sibbia (supra), the Hon'ble Supreme Court posed a question that "should the operation of an order passed under Section 438(1) of the Code be limited to point of time?" The answer given was "not necessarily". The Hon'ble Supreme Court further observed that "The court may, if there are reasons for doing so, limit the opera....
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....arton's LAW LEXICON, is to 'set at liberty a person arrested or imprisoned, on security being taken for his appearance'. Thus, bail is basically release from restraint, more particularly, release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial. Personal recognisance, suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself at the trial of offence or offences of which he is charged and for which he was arrested. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance a....
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....ases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.." (emphasis supplied) 92. The legislative history of Section 438 of the Code has been given by the Hon'ble Supreme Court in paragraphs 4, 5 and 6 of the judgment, which read as hereunder:- "4. The Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to the present Section 438. Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether courts had the inherent power to pass an order of bail in anticipation of arrest, the preponderance of view abeing that it did not have such power. The need for extensive amendments to the Code of Criminal Procedure was felt for a long time and various suggestions were made in different quarters in order to make the Code more effective and comprehensive. The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the necessity of....
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....at any time while in the custody of such officer to give bail, such person shall be released on bail.' We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted. But we found that it may not be practicable to exhaustively enumerate those conditions; and moreover, the laying down of such conditions may be construed as prejudging (partially at any rate) the whole case. Hence we would leave it to the discretion of the court and prefer not to fetter such discretion in the statutory provision itself. Superior courts will, undoubtedly, exercise their discretion properly, and not make any observations in the order granting anticipatory bail which will have a tendency to prejudice the fair trial of the accused." "5. The suggestion made by the Law Commission was, in principle, accepted by the Central Government which introduced clause 447 in the Draft Bill of the Code of Criminal Procedure, 1970 with a view to conferring an express power on the High Court and the Court of Session to grant anticipatory bail. That clause read thus: "447. (1) When any person has reason to believe tha....
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....nd Dr. Kartikeya Sharma v. State, Criminal Misc. Anticipatory Bail Application No. 3107 of 2023, the Hon'ble Allahabad High Court entertained the anticipatory bail application even after filing of the charge sheet. 95. In the case of Shamim Ahmed v. State, 2003 SCC OnLine Cal 148, the Hon'ble Calcutta High Court also held that there is no bar in filing of the application under Section 438 of the Code after filing of the charge sheet or after issuance of the process under Section 204 of the Code or after issuance of the warrant in a complaint case. 96. Not only this, the Hon'ble Supreme Court in the cases of Bharat Chaudhary v. State of Bihar, (2003) 8 SCC 77, Ravindra Saxena v. State of Rajasthan, (2010) 1 SCC 684, Vinod Kumar Sharma v. State of Uttar Pradesh, 2021 SCC OnLine SC 3225, Bhadresh Bipinbhai Sheth v. State of Gujarat, (2016) 1 SCC 152 and Mahdoom Bava v. Central Bureau of Investigation, 2023 SCC OnLine SC 299 considered anticipatory bail application despite charge sheet having been filed. 97. In the case of Bharat Chaudhary (supra), the Hon'ble Supreme Court observed that "This judgment in our opinion does not support the extreme argument addres....
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.... interpretation would amount to violence to the provisions of Section 438 CrPC, since even though a charge- sheet may be filed against an accused and charge is framed against him, he may still not appear before the court at all even during the trial." (emphasis supplied) 103. The question that arises for consideration is that if the Hon'ble Supreme Court in some cases has already entertained anticipatory bail post filing of charge sheet, why this matter should be referred to and considered by the Larger Bench? The reasons are as follows: (i) In the cases of Bharat Chaudhary (supra), Bhadresh Bipinbhai Sheth (supra) and Ravindra Saxena (supra), while entertaining anticipatory bail application after filing of the charge sheet, although the Hon'ble Supreme Court referred to the provisions of Section 438 of the Code, and the judgment in the case of Sibbia (supra), but the attention of the Hon'ble Supreme Court, in those cases, was not invited to the principles as laid down in the case of Sibbia (supra) while interpreting the word "arrest" and the necessity/legislative intent behind enacting Section 438 of the Code. (ii) In the case of Vinod Kumar Sha....
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....ication for "anticipatory bail" and while granting the "anticipatory bail" it is ultimately for the court concerned to impose conditions including the limited period of "anticipatory bail", depends upon the stages at which the application for anticipatory bail is moved " (emphasis supplied) (v) At this stage only, it may be noted that at one place, in the case of Sushila Aggarwal (supra) itself, the Hon'ble Supreme Court recorded the words, 'and the chargesheet is filed', but this is so done while in Para 7.6 of the judgment, the Hon'ble Supreme Court was considering the conditions that may be imposed while granting an anticipatory bail. In that context, the Hon'ble Supreme Court observed that the conditions depend on the stage at which the bail application is being considered. The context in Para 7.6 has not been as to uptil which stage, an application for anticipatory bail may be moved. The context was the conditions that may be imposed while granting pre-arrest bail. Whereas, in Para 7.1 of the judgment, categorically, the Hon'ble Supreme Court, in the case of Sushila Aggrawal (supra) held that anticipatory bail application may be entertained ....
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....ld not be allowed to exceed except for very special reasons." (b) The stages that follows after completion of investigation are as follows:- * The Investigating Officer shall submit the chargesheet through the Officer In- charge of the Police Station under intimation to the Superintendent of Police * The chargesheet with the final diary in the case is submitted to the court through the Circle Officer and the public prosecutor, which means that the Investigating Officer shall submit the chargesheet to the Officer In-charge of the Police Station. The Officer In- charge of Police Station, under intimation to the Superintendant of Police, submits the chargesheet along with the final diary to the Circle Officer. The Circle Officer shall submit the chargesheet to the public prosecutor (c) Para 122 of the Police Regulations, as stated hereinabove, further makes it abundantly clear that the Circle Officer and the Public Prosecutor should not retain the chargesheet for more than a week. There is a time limit prescribed at various stages. It further establishes that at the termination of the investigation, immediately chargesheet is not filed. There are va....
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....observed that, "It is said, indeed rightly, that in seeking legislative intention, judges not only listen to the voice of the legislature but also listen attentively to what the legislature does not say." How the words are to be interpreted in an Act and how to gather the intention of legislature, that has also been discussed by the Hon'ble Supreme Court in the case of Gwalior Rayon (supra), in Para 8 of the judgment, which reads as hereunder:- "8. This whole line of argument with respect, is hard to accept. As Felix Frankfurter, J. said: "Legislation is a form of literary composition. But construction is not an abstract process equally valid for every composition, not even for every composition whose meaning must be judicially ascertained. The nature of the composition demands awareness of certain presuppositions.... And so, the significance of an enactment, its antecedents as well as its later history, its relation to other enactments, all may be relevant to the construction of words for one purpose and in one setting but not for another. Some words are confined to their history; some are starting points for history. Words are intellectual and moral currency. They co....
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....be made the sole basis for construing the provisions contained therein, the same can be referred to for understanding the background, the antecedent state of affairs and the mischief sought to be remedied by the statute. The Statement of Objects and Reasons can also be looked into as an external aid for appreciating the true intent of the legislature and/or the object sought to be achieved by enactment of the particular Act or for judging reasonableness of the classification made by such Act." 112. The Code came into force with effect from 01.04.1974. Prior to it, the Code of Criminal Procedure, 1898, was applicable. There was no provision in the Code of Criminal Procedure, 1898, for anticipatory bail. The question is why then the provision of anticipatory bail has been incorporated under Section 438 of the Code? It may help this Court to understand the necessity of bringing the law relating to pre-arrest bail in the statute. What was the deficiency that Section 438 of the Code had tried to remove? This is another mode of interpreting the statute as a Mischief Rule also known as Heydon's Rule. 113. In the case of Bengal Immunity Company Limited v. State of Bihar, AIR 1955....
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....atish, (2022) 5 SCC 545, the Hon'ble Supreme Court also discussed the Mischief Rule, as originated from Heydon's case (supra). In Para 63 and 64 of the judgment, the Hon'ble Supreme Court observed as hereunder:- "63. One time-tested and well-accepted mode of interpreting a statute, especially a new statute, is to apply the "mischief rule" - first spoken of in Heydon case [Heydon case, (1584) 3 Co Rep 7a : 76 ER 637] which contains a four-points formula, acting as an aid in construing a new law or provision. These are firstly, what was the common law before the making of the Act; secondly what was the mischief and defect for which the common law did not provide; thirdly what remedy Parliament resolved and appointed to cure the disease plaguing the society; and lastly the true reason of the remedy. The judgment in Heydon case [Heydon case, (1584) 3 Co Rep 7a : 76 ER 637] also emphasised that courts always have to interpret the law so as to suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true int....
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....first to submit to custody, remain in prison for some days and then apply for bail." It is this defect in the existing law in the year 1969, which the Law Commission noted in its 41st Report and proposed Section 497A in the Code of Criminal Procedure, 1898. The Report was in principle accepted and finally it got enacted as Section 438 of the Code. Therefore, the defect was that if there is false case or false, mala fide reports, a person may be arrested. It was essentially against police arrest. This defect or mischief was to be rectified by way of provision as anticipatory bail. This Court, at the cost of repetition reproduces what the Hon'ble Supreme Court in the case of Sibbia (supra) observed, "An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued." It may be noted that in the same paragraph, in the case of Sibbia (supra) the Hon'ble Supreme Court has discussed the provisions of Section 46 of the Code. In view of this settled position, now the proposition of "arrest" qua applicability of Section 438 of the Code will be discussed. And while doing so, ....
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.... consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested." "48. Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to note that in every arrest, th....
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....t by a Magistrate have been given under Section 44 of the Code. It is in two parts. If in the presence of a Magistrate, offence is committed, such Magistrate may himself arrest or order any person to arrest, as per Sub- Section 1 to Section 44 of the Code. Sub-Section 2 to Section 44 of the Code also empowers a Magistrate to arrest any person for whose arrest he is competent at the time and in the circumstances to issue a warrant. 121. In the case of Deepak Mahajan (supra), the Hon'ble Supreme Court has, in Para 46 discussed the word "arrest" and in Para 48, made a co-relation between arrest and "appearance" or "surrender" of a person. The Hon'ble Supreme Court observed that, " To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender.." It definitely means that when a person appears before a court of Magistrate or a court and surrenders and the court takes such person into custody, according to the Hon'ble Supreme Court, such taking into custody precedes by implied arrest. The question is whether this implied arrest is that arrest, which is contemplated unde....
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....f the informant would be of secondary importance if the investigation produces unimpeachable evidence disclosing the offence." 128. The discussion on cognizance has been made qua understanding the necessity of introducing Section 438 of the Code in the statute book. The necessity was felt because there were instances of false cases by the influential persons so as to lodging their rivals into jail. As stated, the question of initial mala fide becomes secondary importance on filing of the chargesheet. In similar manner, if after investigation in an FIR, chargesheet is filed or on a complaint processes are issued by the Magistrate, that is done only after cognizance is taken; after application of judicial mind by the court of Magistrate on the allegations and materials in support thereof. The processes are not issued at the behest of any influential person so as to lodging their rivals to jail. Section 438 of the Code was not enacted to meet this situation when an accused appears before the court, in response to a process issued after the chargesheet has been submitted. In the case of Deepak Mahajan (supra), the Hon'ble Supreme Court has, though, observed that when an accused ....
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....ing Director, Chhattisgarh State Co-Operative Bank Maryadit v. Zila Sahkari Kendriya Bank Maryadit, (2020) 6 SCC 411, the Hon'ble Supreme Court, in Para 33, observed as follows:- "33. It is a settled principle of law that where two provisions of an enactment appear to conflict, courts must adopt an interpretation which harmonises, to the best extent possible, both provisions. Justice G.P. Singh in his seminal work Principles of Statutory Interpretation states: "To harmonise is not to destroy. A familiar approach in all such cases is to find out which of the two apparently conflicting provisions is more general and which is more specific and to construe the more general one as to exclude the more specific The principle is expressed in the maxims generalia specialibus non derogant and generalibus specialia." Similarly, Craies in Statute Law states: "The rule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the s....
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....to bail during pendency of an appeal. Can an accused, who is facing trial in a criminal case, move an application for anticipatory bail prior to judgment on the ground that he has apprehension that he may be convicted and may be taken into custody? If it is answered in affirmative, it would make Section 389 of the Code redundant. 138. There may be many more such instances, viz, if in a criminal appeal before the Hon'ble Supreme Court, the appellant does not appear and for any reason, his warrant of arrest is issued, can an application for anticipatory bail in such a situation be entertained? If the word "arrest" as occurs in Section 438 is stretched to every situation, the answer would be in affirmative. But, in such matter, anticipatory bail application may not be entertained. If in such a situation, an anticipatory bail application is permitted to be entertained, it would be a kind of interference in the judicial proceedings of the Hon'ble Supreme Court. Such application may not be entertained because there is a distinct provision provided post judgment or bail in appeal. 139. The word "arrest", as used under Section 438 of the Code, may not be stretched beyond the ....
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....ining stringent provisions for bail like NDPS (Section 37), PMLA (Section 45), UAPA [Section 43-D(5)], Companies Act [Section 212(6)], etc. (D) Economic offences not covered by Special Acts. Requisite Conditions (1) Not arrested during investigation. (2) Cooperated throughout in the investigation including appearing before investigating officer whenever called. (No need to forward such an accused along with the charge-sheet Siddharth v. State of U.P. [Siddharth v. State of U.P., (2022) 1 SCC 676]) Category A After filing of charge-sheet/complaint taking of cognizance (a) Ordinary summons at the 1st instance/including permitting appearance through lawyer. (b) If such an accused does not appear despite service of summons, then bailable warrant for physical appearance may be issued. (c) NBW on failure to appear despite issuance of bailable warrant. (d) NBW may be cancelled or converted into a bailable warrant/summons without insisting physical appearance of the accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused t....
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....ny apprehension of arrest. While clarifying its order on 21.03.2023, the Hon'ble Supreme Court, in the case of Satender Kumar Antil (supra) was not invited to interpret the word "arrest", as occurs in Section 438 of the Code and the principle of law laid down by the Hon'ble Supreme Court in the case of Sushila Aggarwal (supra) on anticipatory bail. 143. In view of the foregoing discussion, I am of the view that an application for anticipatory bail is not maintainable after the chargesheet has been filed in the court. CONCLUSION 144. An application for anticipatory bail is not maintainable after the chargesheet has been filed in the Court. 145. The Reference is answered accordingly. VIPIN SANGHI, C.J. 146. I have perused the opinions prepared by my brothers Manoj Kumar Tiwari, J., and Ravindra Maithani, J. 147. I agree with the view taken by Manoj Kumar Tiwari, J. - that an application seeking anticipatory bail would be maintainable even after the filing of the charge- sheet in the court. 148. I may, briefly, record my reasons for agreeing with the opinion of Manoj Kumar Tiwari, J. Right to life and personal liberty is a valuable right available to a ....