Uttarakhand High Court
Saubhagya Bhagat vs State Of Uttarakhand & Anr on 24 August, 2023
Judgment Reserved on: 05.07.2023
Judgment Delivered on: 24.08.2023
HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI
AND
HON'BLE SRI JUSTICE RAVINDRA MAITHANI
Anticipatory Bail Application No. 76 of 2021
Saubhagya Bhagat ... Applicant
Versus
State of Uttarakhand & Anr. ... Respondents
With
Anticipatory Bail Application No. 34 of 2021
Devansh Khandelwal & Anr. ... Applicants
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 188 of 2021
Praveen Tyagi ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 215 of 2021
Sudhanshu Mehta ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 244 of 2021
Prarthana Asthana ... Applicant
Versus
State of Uttarakhand & Anr. ... Respondents
2
Anticipatory Bail Application No. 245 of 2021
Prarthana Asthana ... Applicant
Versus
State of Uttarakhand & Anr. ... Respondents
Anticipatory Bail Application No. 256 of 2021
Khimanand Dani ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 259 of 2021
Badri Prasad Arya ... Applicant
Versus
State of Uttarakhand & Anr. ... Respondents
Anticipatory Bail Application No. 261 of 2021
Vikas Kumar Sharma ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 268 of 2021
Deepak Kumar Rao ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 29 of 2022
Yogesh Kumar Gautam ... Applicant
Versus
State of Uttarakhand & Anr. ... Respondents
3
Anticipatory Bail Application No. 63 of 2022
Rahul Kumar Yadav ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 101 of 2022
Piyush Baliyan & Anr. ... Applicants
Versus
State of Uttarakhand & Others ... Respondents
Anticipatory Bail Application No. 150 of 2022
Lal Bahadur Kushwaha ... Applicant
Versus
State of Uttarakhand & Others ... Respondents
Anticipatory Bail Application No. 156 of 2022
Reshma ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 159 of 2022
Bhaguli Devi ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 161 of 2022
Naseem & Anr. ... Applicants
Versus
State of Uttarakhand ... Respondent
4
Anticipatory Bail Application No. 189 of 2022
Furkan ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 195 of 2022
Pranav Obrai & Others ... Applicants
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 198 of 2022
Neeraj Kumar Loshali ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 213 of 2022
Nayima ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 219 of 2022
Ranjeet Kaur alias Geeta ... Applicant
Versus
State of Uttarakhand & Anr. ...Respondents
Anticipatory Bail Application No. 253 of 2022
Raja Bhatt & Others ... Applicants
Versus
State of Uttarakhand ... Respondent
5
Anticipatory Bail Application No. 254 of 2022
Shadab ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 256 of 2022
Kamlesh Singh Chauhan ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 281 of 2022
Neeraj Kumar ... Applicant
Versus
State of Uttarakhand & Others ... Respondents
Anticipatory Bail Application No. 288 of 2022
Amit Kumar Singh ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 304 of 2022
Shubham Kumar ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 310 of 2022
Sandeep Singh Kandari & Anr. ...Applicants
Versus
State of Uttarakhand & Others ... Respondents
Anticipatory Bail Application No. 329 of 2022
Sayyaz ... Applicant
Versus
State of Uttarakhand ... Respondent
6
Anticipatory Bail Application No. 348 of 2022
Danish Raza ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 26 of 2023
Kiran Rana ... Applicant
Versus
State of Uttarakhand & Anr. ... Respondents
Anticipatory Bail Application No. 164 of 2023
Deshraj Saini ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 176 of 2023
Sanjay Bhalla ... Applicant
Versus
State of Uttarakhand ... Respondent
Mr. Girish Chandra Lakchaura and
Mr. Dushyant Mainali, learned counsels for the
applicant in ABA No. 76 of 2021.
Mr. Arvind Vashistha, learned Senior Counsel
assisted by Ms. Disha Vashistha and
Mr. Hemant Singh Mehra, learned counsels for
the applicant in ABA No. 63 of 2022.
Mr. Alok Kumar, learned counsel for the
applicants in ABA No. 101 of 2022.
Mr. Amit Kapri, learned counsel for the
applicant in ABA No. 150 of 2022.
Mr. Ganesh Kandpal, learned counsel for the
applicant in ABA No. 198 of 2022.
7
Mr. Bhuwnesh Joshi, learned counsel for the
applicant in ABA No. 213 of 2022.
Mr. Tajhar Qayyum, learned counsel for the
applicant in ABA No. 281 of 2022.
Mr. C.K. Sharma, learned counsel for the
applicant in ABA No. 26 of 2023.
Mr. J.S. Virk, learned Deputy Advocate
General, Mr. Rakesh Kumar Joshi and Mr.
Pankaj Joshi, learned Brief Holders for the
State of Uttarakhand.
Ms. Prabha Naithani, learned counsel for the
complainant in ABA No. 215 of 2021.
Mr. B.D. Jha, Ms. Preeti Jha and Ms. Priyanka
Jha, learned counsels for the complainant in
ABA No. 198 of 2022.
The Court made the following:
Judgment: (Per: Hon'ble Manoj Kumar Tiwari, J.)
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
8
28.9.2022, passed in ABA/76/2021 and
connected matters. Thus, the issue is now
before a Full Bench.
3. Since the question was earlier
answered by a Division Bench, therefore,
before proceeding in the matter, it would be
worthwhile to peruse the second order of
reference dated 28.9.2022, which is extracted
below:
"The following question was referred by
this Bench to the Larger Bench on
17.08.2022:-
"Whether an application for anticipatory
bail is maintainable after the charge
sheet has been filed in the court?"
2. While making the reference, this
Bench had taken note of the provision
of Sections 46 and 438 of the Code of
Criminal Procedure, 1973, Law
Commission's 41st Report, the
principles of law as laid down by the
Hon'ble Supreme Court in the case of
Shri Gurbaksh Singh Sibba and others
v. State of Punjab, (1980)2 SCC 565,
Satender Kumar Antil v. Central Bureau
of Investigation and another, (2021) 10
SCC 773 and Sushila Aggarwal and
others v. State (NCT of Delhi) and
another, (2020) 5 SCC 1. In paragraph
22, 23 and 25 of the order dated
17.08.2022, this Court noted as
hereunder:
"22. In view of the judgment in the
case of Satender Kumar Antil (supra), after
charge sheet is filed and cognizance is
taken for offences under category 'A', bail
application of such accused, on
appearance, may be decided without the
accused being taken into physical custody.
It means, in such matters, the accused has
no apprehension of his being taken into
custody. Does it mean that for this
category of cases, Section 438 of the Code
is not applicable at all?
23. If cognizance is taken and still
anticipatory is maintained in the specified
9
court, would not it impliedly interfere with
the order summoning the accused? And if
it so, is it the legislative intent for enacting
Section 438 of the Code?
25. Recently, in the case of Sushila
Aggarwal and others v. State (NCT of
Delhi) and another, (2020) 5 SCC 1, the
Hon'ble Supreme Court observed that the
anticipatory bail is maintainable till charge
sheet is filed and in para 7.1, the Hon'ble
Supreme Court observed as hereunder:-
"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)
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 "anticipatory bail" in
anticipation of arrest could be
moved by the accused at a stage
10
before an FIR is filed or at a stage
when FIR is registered but the
charge-sheet has not been filed...".
5. This Bench is bound to follow the
reference answered by the Division
Bench. But, in the case of Sushila
Aggarwal (supra), the Hon'ble Court has
held that anticipatory bail application
could be moved until charge sheet has
not been filed.
6. This Bench is faced with a difficult
situation. On the one hand, there is
answer to the reference and, on the
other hand, there are observations of
the Hon'ble Supreme Court in the case
of Sushila Aggarwal (supra). Instead of
finding a way out within the parameters
of law, this Court deems it disciplined
action under law to refer the matter to
the Larger Bench, so that the issue may
be resolved.
7. The matter is referred to the larger
Bench for the aforementioned reasons.
8. Let the Registry place the matter
before Hon'ble the Chief Justice seeking
directions for constitution of a Bench.
9. Interim orders, if any, passed in any
of the cases, shall remain in force till
the next date of listing."
4. Learned Counsel for the applicants
contend that as the legislature has not
imposed any restriction regarding the stage at
which an application for anticipatory bail could
be entertained, therefore, reading some
restriction or condition regarding the stage
upto which such application can be filed, would
not be warranted and would be against the
dictum of the Constitution Bench judgments in
the case of Gurbaksh Singh Sibbia1 and Sushila
1
1980(2)SCC 565
11
Aggarwal2. It was further contended that the
Constitution Bench judgment in the case of
Sushila Aggarwal2 nowhere provides that an
application for anticipatory bail would be
maintainable only till filing of charge sheet,
and not thereafter.
5. Per contra, learned State Counsel
contended that the provision for anticipatory
bail under Section 438 CrPC is meant to
protect a person from arrest at the hands of
police, therefore, upon completion of
investigation, when charge sheet is filed, the
remedy of anticipatory bail would not be
available to an accused person and he can
then seek bail under Section 437 CrPC.
6. The concept of bail is an integral part
of criminal justice system. Bail, in law, means
procurement of release 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.
2
2020(5)SCC 1
12
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 rights. The
dictionary meaning of the expression
"bail" denotes a security for
appearance of a prisoner for his
release. Etymologically, the word is
derived from an old French verb
"bailer" which means to "give" or "to
deliver", although another view is
that its derivation is from the Latin
term "baiulare", meaning "to bear a
burden". Bail is a conditional
liberty. Stroud's Judicial
Dictionary (4th Edn., 1971) spells
out certain other details. It states:
"... when a man is taken or
arrested for felony, suspicion of
felony, indicted of felony, or any
such case, so that he is
restrained of his liberty. And,
being by law bailable, offereth
surety to those which have
authority to bail him, which
sureties are bound for him to
the King's use in a certain sums
of money, or body for body,
that he shall appear before the
justices of goal delivery at the
next sessions, etc. Then upon
the bonds of these sureties, as
13
is aforesaid, he is bailed--that is
to say, set at liberty until the
day appointed for his
appearance."
Bail may thus be regarded as a
mechanism whereby the State
devolutes upon the community the
function of securing the presence of
the prisoners, and at the same time
involves participation of the
community in administration of
justice.
7. Personal liberty is fundamental
and can be circumscribed only by
some process sanctioned by law.
Liberty of a citizen is undoubtedly
important but this is to balance with
the security of the community. A
balance is required to be maintained
between the personal liberty of the
accused and the investigational right
of the police. It must result in
minimum interference with the
personal liberty of the accused and
the right of the police to investigate
the case. It has to dovetail two
conflicting demands, namely, on the
one hand the requirements of the
society for being shielded from the
hazards of being exposed to the
misadventures of a person alleged to
have committed a crime; and on the
other, the fundamental canon of
criminal jurisprudence viz. the
presumption of innocence of an
accused till he is found guilty. Liberty
exists in proportion to wholesome
restraint, the more restraint on
others to keep off from us, the more
liberty we have. (See A.K.
Gopalan v. State of Madras)
8. The law of bail, like any other
branch of law, has its own
philosophy, and occupies an
important place in 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
14
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 the
accused of imprisonment, to relieve
the State of the burden of keeping
him, pending the trial, and at the
same time, to keep the accused
constructively in the custody of the
court, whether before or after
conviction, to assure that he will
submit to the jurisdiction of the court
and be in attendance thereon
whenever his presence is required."
9. In the case of Sandeep Kumar Bafna
v. State of Maharashtra, reported as (2014) 16
15
SCC 623, Hon'ble Supreme Court considered
and discussed the concept of 'custody',
'detention' and 'arrest'. Para 16 of the said
judgment is reproduced below:
"16. It appears to us from the above
analysis that custody, detention and
arrest are sequentially cognate
concepts. On the occurrence of a
crime, the police is likely to carry out
the investigative interrogation of a
person, in the course of which the
liberty of that individual is not
impaired, suspects are then
preferred by the police to undergo
custodial interrogation during which
their liberty is impeded and
encroached upon. If grave suspicion
against a suspect emerges, he may
be detained in which event his liberty
is seriously impaired. Where the
investigative agency is of the opinion
that the detainee or person in
custody is guilty of the commission
of a crime, he is charged of it and
thereupon arrested. In Roshan
Beevi, the Full Bench of the High
Court of Madras, speaking through S.
Ratnavel Pandian, J. held that the
terms "custody" and "arrest" are not
synonymous even though in every
arrest there is a deprivation of liberty
is custody but not vice versa. This
thesis is reiterated by Pandian, J.
in Deepak Mahajan by deriving
support from Niranjan
Singh v. Prabhakar Rajaram Kharote.
The following passages from Deepak
Mahajan are worthy of extraction:
(SCC p. 460, para 48)
"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 emphasise 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, 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
discordant to Niranjan Singh, the
view of the coordinate Bench of
earlier vintage must prevail, and this
discipline demands and constrains us
also to adhere to Niranjan Singh;
ergo, we reiterate that a person is in
custody no sooner he surrenders
before the police or before the
appropriate court. This enunciation
of the law is also available in three
decisions in which Arijit Pasayat, J.
spoke for the two-Judge Benches,
namely, (a) Nirmal Jeet
Kaur v. State of M.P., (b) Sunita
Devi v. State of Bihar, and (c) Adri
Dharan Das v. State of W.B., where
the co-equal Bench has opined that
since an accused has to be present in
court on the moving of a bail petition
under Section 437, his physical
appearance before the Magistrate
tantamounts to surrender. The view
of Niranjan Singh (see extracted
para 49 supra) has been followed
in State of Haryana v. Dinesh Kumar.
We can only fervently hope that
members of the Bar will desist from
citing several cases when all that is
required for their purposes is to draw
attention to the precedent that holds
the field, which in the case in hand,
we reiterate is Niranjan Singh."
10. Right to life and personal liberty is a
valuable right, available to all persons,
guaranteed by Article 21 of the Indian
Constitution and it is considered as one of the
most precious rights. Hon'ble Supreme Court
has held that life and liberty are the most
prized possessions of an individual and the
inner urge for freedom is a natural
phenomenon of every human being. Respect
for life, liberty and property is not merely a
norm or a policy of State, but an essential
requirement of any civilized society.
11. In the case of A.K. Gopalan v. State
of Madras, reported as AIR 1950 SC 27,
Hon'ble Justice Mukherjea observed that
"personal liberty" means liberty relating to or
concerning the person or body of the individual
and it is, in this sense, the antithesis
of physical restraint or coercion. "Personal
liberty" means a personal right not to be
subjected to imprisonment, arrest or other
physical coercion in any manner that does not
admit of legal justification.
12. In Kharak Singh v. State of U.P.,
reported as AIR 1963 SC 1295, Hon'ble
Subbarao, J. defined "Personal Liberty" as a
right of an individual to be free from
restrictions or encroachments on his person,
whether these are directly imposed or
indirectly brought about by calculated
measure. 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 necessity of introducing a provision in the
Code of Criminal Procedure enabling the High
Court and the Court of Sessions to grant
anticipatory bail. Accordingly, provision for
anticipatory bail was made in Section 438 of
the Code of Criminal Procedure, 1973. This
provision allows a person to seek bail in
anticipation of arrest on accusation of having
committed a non-bailable offence. The basic
purpose of insertion of this provision is that no
person should be confined in custody unless
held guilty.
16. In the case of Gurbaksh Singh Sibbia
v. State of Punjab, reported in 1980 (2) SCC
565, a Constitution Bench of Hon'ble Supreme
Court held that "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. Anticipatory bail once granted remains
operative till conclusion of the trial unless it is
cancelled under Section 439 of the Code."
17. In the case of Balchand Jain v. State
of M.P., reported as (1976) 4 SCC 572, Hon'ble
Supreme Court held that conditions imposed
by Section 437(1) CrPC are to be read in
Section 438. Para 17 of the said judgment is
extracted below:
"---As Section 438 immediately
follows Section 437 which is the
main provision for bail in respect of
non-bailable offences it is manifest
that the conditions imposed by
Section 437(1) are implicitly
contained in Section 438 of the
Code. Otherwise the result would be
that a person who is accused of
murder can get away under Section
438 by obtaining an order for
anticipatory bail without the
necessity of proving that there were
reasonable grounds for believing that
he was not guilty of offence
punishable with death or
imprisonment for life. Such a course
would render the provisions of
Section 437 nugatory and will give a
free licence to the accused persons
charged with non-bailable offences to
get easy bail by approaching the
court under Section 438 and
bypassing Section 437 of the Code."
18. The aforesaid view was not accepted
by Constitution Bench in the case of Gurbaksh
Singh Sibbia v. State of Punjab, reported in
1980 (2) SCC 565, in para 26, which is
reproduced below:
"26. We find a great deal of
substance in Mr Tarkunde'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 conceived by
the legislature, is open to no
exception on the ground that it
prescribes a procedure which is
unjust or unfair. We ought, at all
costs, to avoid throwing it open to a
Constitutional challenge by reading
words in it which are not to be found
therein."
(Emphasis supplied)
19. In the case of Gurbaksh Singh Sibbia
(supra), Constitution Bench of Hon'ble
Supreme Court laid down certain principles,
which are to be borne in mind while
considering an application for anticipatory bail.
These principles are summarized in para 35 to
39, which are reproduced below:
"35. Section 438(1) of the Code lays
down a condition which has to be
satisfied before anticipatory bail can
be granted. The applicant must show
that he has "reason to believe" that
he may be arrested for a non-
bailable offence. The use of the
expression "reason to believe" shows
that the belief that the applicant may
be so arrested must be founded on
reasonable grounds. Mere 'fear' is
not 'belief", for which reason it is not
enough for the applicant to show
that he has some sort of a vague
apprehension that some one is going
to make an accusation against him,
in pursuance of which he may be
arrested. The grounds on which the
belief of the applicant is based that
he may be arrested for a non-
bailable offence, must be capable of
being examined by the court
objectively, because it is then alone
that the court can determine
whether the applicant has reason to
believe that he may be so arrested.
Section 438(1), therefore, cannot be
invoked on the basis of vague and
general allegations, as if to arm
oneself in perpetuity against a
possible arrest. Otherwise, the
number of applications for
anticipatory bail will be as large as,
at any rate, the adult populace.
Anticipatory bail is a device to secure
the individuals liberty; it is neither a
passport to the commission of crimes
nor a shield against any and all kinds
of accusations, likely or unlikely
36. Secondly, if an application for
anticipatory bail is made to the High
Court or the Court of Session it must
apply its own mind to the question
and decide whether a case has been
made out for granting such relief. It
cannot leave the question for the
decision of the Magistrate concerned
under Section 437 of the Code, as
and when an occasion arises. Such a
course will defeat the very object of
Section 438.
37. 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 the view that
anticipatory bail orders should be of a limited
duration only and on expiry of that duration,
the Court granting anticipatory bail should
leave to the regular Court to deal with the
matter on an appreciation of evidence placed
before it after the investigation has made
progress or the charge sheet is filed. Relevant
extract of the said judgment is reproduced
below:
"Anticipatory bail is granted in
anticipation of arrest in non-bailable
cases, but that does not mean that
the regular court, which is to try the
offender, is sought to be bypassed
and that is the reason why the High
Court very rightly fixed the outer
date for the continuance of the bail
and on the date of its expiry directed
the petitioner to move the regular
Court for bail."
22. The view taken in the case of
Salauddin Abdulsamad Shaikh (supra) was
followed in the case of HDFC Bank Limited v.
J.J. Mannan alias J.M. John Paul & Another,
reported as (2010) 1 SCC 679. Para 19 and 20
of the said judgment are reproduced below:
"19.The object of Section 438 CrPC
has been repeatedly explained by
this Court and the High Courts to
mean that a person should not be
harassed or humiliated in order to
satisfy the grudge or personal
vendetta of the complainant. But at
the same time the provisions of
Section 438 CrPC cannot also be
invoked to exempt the accused from
surrendering to the court after the
investigation is complete and if
charge-sheet is filed against him.
Such an 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.
20. Section 438 CrPC contemplates
arrest at the stage of investigation
and provides a mechanism for an
accused to be released on bail should
he be arrested during the period of
investigation. Once the investigation
makes out a case against him and he
is included as an accused in the
charge-sheet, the accused has to
surrender to the custody of the court
and pray for regular bail. On the
strength of an order granting
anticipatory bail, an accused against
whom charge has been framed,
cannot avoid appearing before the
trial court."
23. The view taken in the aforesaid two
judgments, namely, Salauddin Abdulsamad
Shaikh and HDFC Bank Limited was
disapproved 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 of
Sushila Aggarwal (supra) disagreed with the
view expressed in the case of Siddharam
Satlingappa Mhetre v. State of Maharashtra by
holding that it is too wide a view and cannot be
considered good law.
26. Section 438 of the Code of Criminal
Procedure, 1973 is extracted below:
"438. Direction for grant of bail
to person apprehending arrest.--
(1) Where any person has reason to
believe that he may be arrested on
accusation of having committed a
non-bailable offence, he may apply
to the High Court or the Court of
Session for a direction under this
section that in the event of such
arrest he shall be released on bail;
and that Court may, after taking into
consideration, inter alia, the
following factors, namely:--
(i) the nature and gravity of the
accusation;
(ii) the antecedents of the applicant
including the fact as to whether he
has previously undergone
imprisonment on conviction by a
Court in respect of any cognizable
offence;
(iii) the possibility of the applicant to
flee from justice; and
(iv) where the accusation has been
made with the object of injuring or
humiliating the applicant by having
him so arrested,
either reject the application forthwith
or issue an interim order for the
grant of anticipatory bail:
Provided that, where the High Court
or, as the case may be, the Court of
Session, has not passed any interim
order under this sub-section or has
rejected the application for grant of
anticipatory bail, it shall be open to
an officer in-charge of a police
station to arrest, without warrant the
applicant on the basis of the
accusation apprehended in such
application.
(1-A) Where the Court grants an
interim order under sub-section (1),
it shall forthwith cause a notice being
not less than seven days notice,
together with a copy of such order to
be served on the Public Prosecutor
and the Superintendent of Police,
with a view to give the Public
Prosecutor a reasonable opportunity
of being heard when the application
shall be finally heard by the Court.
(1-B) The presence of the applicant
seeking anticipatory bail shall be
obligatory at the time of final hearing
of the application and passing of final
order by the Court, if on an
application made to it by the Public
Prosecutor, the Court considers such
presence necessary in the interest of
justice.
(2) When 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 should issue
in the first instance against that
person, he shall issue a bailable
warrant in conformity 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
376-AB or Section 376-DA or Section
376-DB of the Indian Penal Code (45
of 1860)."
27. A careful perusal of the aforesaid
provision reveals that legislature has not
imposed any restriction as regards the stage
upto which an application for anticipatory bail
can be entertained. The Constitution Bench in
the case of Gurbaksh Singh Sibbia v. State of
Punjab, reported as (1980) 2 SCC 565, has
held that anticipatory bail can be granted so
long as the applicant has not been arrested.
28. The question whether Courts by
judicial interpretation can put some restrictions
or conditions in the statute which the
legislature itself did not think it proper or
necessary to impose, was answered in the
negative by the Constitution Bench in para 12
of the judgment in Gurbaksh Singh Sibbia
(supra), which was approved by another
Constitution Bench in para 7.3 of judgment
rendered in the case of Sushila Aggarwal v.
State (NCT of Delhi), reported as (2020) 5 SCC
1.
29. The reason for making this reference
can be gathered from para 4 and 5 of the order
passed by the learned Single Judge on
28.9.2022, which are extracted below:
"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 "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...".
5. This Bench is bound to follow the
reference answered by the Division
Bench. But, in the case of Sushila
Aggarwal (supra), the Hon'ble Court has
held that anticipatory bail application
could be moved until charge sheet has
not been filed."
30. From reading of the reference order,
it is revealed that the view expressed by
learned Single Judge is based on observation
in para 7.1 of the Constitution Bench judgment
rendered in the case of Sushila Aggarwal
(supra). This position becomes clear from para
25 of 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 anticipatory bail "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". It is common
knowledge that upon completion of
investigation, either charge sheet or final
/closure report is filed. Thus, the Constitution
Bench does not prohibit filing of application
seeking anticipatory bail after filing of charge
sheet, as it was held that such an application
can be filed upon completion of investigation.
Para 7.7 of the judgment in Sushila Aggarwal
(supra) reiterates that such application can be
filed "at the stage when the investigation is
complete and the charge sheet is filed". Para
7.7 of the said judgment is extracted below:
"We are of the opinion that the
conditions can be imposed by the
court concerned while granting pre-
arrest bail order including limiting
the operation of the order in relation
to a period of time if the
circumstances so warrant, more
particularly the stage at which the
"anticipatory bail" application is
moved, namely, whether the same is
at the stage before the FIR is filed or
at the stage when the FIR is filed
and the investigation is in progress
or at the stage when the
investigation is complete and the
charge-sheet is filed."
32. In para 52.13 of the concurring
judgment authored by Hon'ble Justice S.
Ravindra Bhatt, the earlier view is reiterated
that anticipatory bail can be granted even after
filing of FIR as long as the applicant is not
arrested. In para 56 of the said judgment, it is
held that "Section 438 is a procedural provision
concerned with the personal liberty of each
individual, who is entitled to the benefit of the
presumption of innocence. As 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 not imposed by
the legislature. "
33. In para 63 of the said judgment, it is
held that neither blanket restrictions can be
read into Section 438 of CrPC nor inflexible
guidelines in the exercise of discretion, be
insisted upon, as that would amount to judicial
legislation. Para 63, 69 and 72 of the said
judgment are reproduced below:
"63. Clearly, therefore, where
Parliament wished to exclude or
restrict the power of 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 33)
"33. Interpretation must
depend on the text and the context.
They are the bases of interpretation.
One may well say if the text is the
texture, context is what gives the
colour. Neither can be ignored. Both
are important. That interpretation is
best which makes the textual
interpretation match the contextual.
A statute is best interpreted when
we know why it was enacted. With
this knowledge, the statute must be
read, first as a whole and then
section by section, clause by clause,
phrase by phrase and word by word.
If a statute is looked at, in the
context of its enactment, with the
glasses of the statute-maker,
provided by such context, its
scheme, the sections, clauses,
phrases and words may take colour
and appear different than when the
statute is looked at without the
glasses provided by the context.
With these glasses we must look at
the Act as a whole and discover what
each section, each clause, each
phrase and each word is meant and
designed to say as to fit into the
scheme of the entire Act. No part of
a statute and no word of a statute
can be construed in isolation.
Statutes have to be construed so
that every word has a place and
everything is in its place."
72. The narrower interpretation
preferred by this Court -- in line of
decisions starting
with Salauddin highlighting the
concerns with respect to the stages
of investigation and enquiry and the
nature and seriousness of the
offence, in the opinion of the Court,
ought not to lead one to cutting
down the amplitude and the power
and discretion otherwise available
with the courts. The danger of this
Court prescribing the limitations is
that they become inflexible rules or
edicts incapable of deviation.
Instead, it would be safer to say that
where there are circumstances or
facts which pose peculiar problems
or complexities pointing to the
seriousness of an offence which the
accused is implicated in, it is always
open to courts (which have to deal
with applications under Section 438)
to impose the needed restrictions --
be that in point of time or at the
stage of investigation or enquiry.
Each of these peculiar
conditions may be imposed in the
given circumstances of any case,
which has those distinctive or special
features. But they should not always
be imposed invariably in all cases. In
other words, if this Court were to
weave conditions to impose and read
into Section 438 that are 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 of an order in relation to
period of time if circumstances so warrant,
however, normal rule should be not to limit the
order in relation to a period of time.
36. The second question was answered
by holding that subject to compliance of the
conditions, the anticipatory bail given to a
person can continue till end of the trial. Thus,
anticipatory bail once granted can, depending
upon the conduct and behavior of the accused,
continue after filing of charge sheet till trial.
37. Thus, law is well settled that filing of
charge sheet does not affect continuance of
anticipatory bail, if granted, as can be
gathered from sub-Section (3) of Section 438
CrPC also. In such view of the matter,
application for anticipatory bail cannot be held
to be not maintainable merely because charge
sheet is filed against the accused person. This
would amount to doing violence with the
language of Section 438, a provision meant to
protect the personal liberty of people, which
has to be construed in a manner which
subserves its purpose and it would not be
proper for this Court to read some
restriction/condition in the said provision which
was not put by the legislature.
38. The question whether anticipatory
bail can be granted when cognizance is taken
or the charge sheet is filed was considered by
Hon'ble Supreme Court in the case of Bharat
Chaudhary v. State of Bihar, reported as
(2003) 8 SCC 77, and it was held that object of
Section 438 CrPC is to prevent undue
harassment of an accused by pre-trial arrest
and detention and further that merely because
a court has taken cognizance on a complaint or
the investigating agency has filed charge
sheet, would not by itself prevent the courts
concerned to grant anticipatory bail in
appropriate cases. Para 7 of the said judgment
is reproduced below:
"7. From the perusal of this part of
Section 438 of CrPC, we find no
restriction in regard to exercise of
this power in a suitable case either
by the Court of Session, High Court
or this Court even when cognizance
is taken or a charge-sheet is filed.
The object of Section 438 is to
prevent undue harassment of the
accused persons by pre-trial arrest
and detention. The fact, that a court
has either taken cognizance of the
complaint or the investigating
agency has filed a charge-sheet,
would not by itself, in our opinion,
prevent the courts concerned from
granting anticipatory bail 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 by the
High Court is wholly erroneous. The
application for anticipatory bail has
been rejected without considering
the case of the appellant solely on
the ground that the challan has now
been presented.
8. We may notice here that the
provision with regard to the grant of
anticipatory bail was introduced on
the recommendations of the Law
Commission of India in its Forty-first
Report dated 24-9-1969. The
recommendations were considered
by this Court in a Constitution Bench
decision in Gurbaksh Singh
Sibbia v. State of Punjab. Upon
consideration of the entire issue this
Court laid down certain salutary
principles to be followed in exercise
of the power under Section 438 CrPC
by the Sessions Court and the High
Court. It is clearly held that the
anticipatory bail can be granted at
any time so long as the applicant has
not been arrested. When the
application is made to the High Court
or the Court of Session it must apply
its own mind on the question and
decide when the case is made out for
granting such relief."
40. In the case of Bhadresh Bipinbhai
Sheth v. State of Gujarat, reported as (2016) 1
SCC 152, Hon'ble Supreme Court while
considering validity of an order of anticipatory
bail granted to the accused after filing of
charge sheet held as under:
"19. In a matter like this where
allegations of rape pertain to the
period which is almost 17 years ago
and when no charge was framed
under Section 376 IPC in the year
2001, and even the prosecutrix did
not take any steps for almost 9 years
and the charge under Section 376
IPC is added only in the year 2014,
we see no reason why the appellant
should not be given the benefit of
anticipatory bail. Merely because the
charge under Section 376 IPC, which
is a serious charge, is now added,
the benefit of anticipatory bail cannot
be denied when such a charge is
added after a long period of time and
inaction of the prosecutrix is also a
contributory factor.
26. Having regard to the facts of this
case which have already been
highlighted above, we feel that no
purpose would be served in
compelling the appellant to go
behind bars, as an undertrial, by
refusing the anticipatory bail in
respect of alleged incident which is
17 years old and for which the
charge is framed only in the year
2014. The investigation is complete
and there is no allegation that the
appellant may flee the course of
justice. 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 filing of charge
sheet it shall be open to them to surrender and
apply for regular bail before the competent
authority. After filing of charge sheet, the
accused persons applied for regular bail, which
was rejected based on the observation made
by Hon'ble Supreme Court while granting
anticipatory bail to the accused persons.
Hon'ble Supreme Court granted anticipatory
bail to the accused persons. The observation
made by Hon'ble Supreme Court in para 3 of
the said judgment is extracted below:
"3. 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 charge
sheet. It also cannot be said, that
same is a second application for
grant of anticipatory bail as pleaded
by learned counsel appearing for
respondents, on the same cause of
action."
43. State Counsel had contended that
anticipatory bail can be sought when there is
an apprehension of arrest at the hands of the
police, therefore, once charge sheet is filed,
anticipatory bail application would not be
maintainable as it would amount to
interference with the summoning order, which
is not permissible. The observation made by
Hon'ble Supreme Court in the case of
Mahdoom Bava v. C.B.I., reported as 2023
SCC OnLine SC 299, is a complete answer to
the aforesaid submission and the same is
reproduced below:
"More importantly, the appellants
apprehend arrest, not at the behest
of the CBI but at the behest of the
Trial Court. This is for the reason
that in some parts of the country,
there seems to be a practice followed
by Courts to remand the accused to
custody, the moment they appear in
response to the summoning order.
The correctness of such a practice
has to be tested in an appropriate
case. Suffice for the present to note
that it is not the CBI which is seeking
their custody, but the appellants
apprehend that they may be
remanded to custody by the Trial
Court and this is why they seek
protection. We must keep this in
mind while deciding the fate of these
appeals."
44. Similarly, in the case of Md. Asfak
Alam v. State of Jharkhand, reported as 2023
SCC OnLine SC 892, where accused was
apprehending arrest in connection with an FIR
lodged on 2.4.2022 under Section
498A/323/504/506 IPC and Section 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 anticipatory bail and before setting
aside the impugned order of High Court,
further observed as under:
"...Thus, once the chargesheet was
filed and there was no impediment,
at least on the part of the accused,
the court having regard to the nature
of the offences, the allegations and
the maximum sentence of the
offences they were likely to carry,
ought to have granted the bail as a
matter of course. However, the court
did not do so but mechanically
rejected and, virtually, to rub salt in
the wound directed the appellant to
surrender and seek regular bail
before the Trial Court. Therefore, in
the opinion of this court, the High
Court fell into error in adopting such
a casual approach."
(emphasis supplied)
45. In the case of Siddharth v. State of
U.P., reported as (2022) 1 SCC 676, Hon'ble
Supreme Court in para 9 has taken note of the
practice of issuing non-bailable warrants for
production of accused, who had cooperated
with the investigation throughout, premised on
the requirement that there is an obligation to
arrest the accused and produce him before the
court.
46. In the case of Satender Kumar Antil
v. CBI, reported as (2022) 10 SCC 51, the
view taken in the case of Siddharth v. State of
U.P. (supra) was reiterated and it was
observed that at the stage of sending an
accused to the Magistrate under Section 170 of
CrPC, where the prosecution does not require
the custody of the accused, there is no need
for an arrest and there is not even a need for
filing a bail application, as the accused is
merely forwarded to the court for framing of
charges and issuance of process for trial and it
was observed that there may be a situation
where the remand may be required, it is only
in such cases that the accused will have to be
heard.
47. Liberty of a person is his most prized
possession. Liberty of an accused gets
curtailed in the case of arrest by police and
also in case of his remand to custody by the
Magistrate/Court. Thus, the effect of arrest or
remand is the same, namely, curtailment of
liberty. Reputation of a person is damaged in
both events, as the society makes no
difference between arrest and remand. Section
438 CrPC also do not make any distinction
between arrest by police or remand by Court.
In the case of Mahdoom Bava (supra), Hon'ble
Supreme Court has taken judicial notice of
practice of remanding accused persons to
custody 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 applicable to persons against
whom charge sheet is filed and cognizance is
taken for offences under category 'A', although
necessary guidelines were issued to protect the
personal liberty of such persons.
50. In view of the legal position as
discussed above, I am of the considered
opinion that an application seeking anticipatory
bail would be maintainable even after filing of
charge sheet in the Court. The reference is
answered accordingly.
51. Let these anticipatory bail
applications be now placed before the
appropriate Bench for further orders.
___________________
MANOJ KUMAR TIWARI, J.
24.8.2023
Pr
Reserved
HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI
AND
HON'BLE SRI JUSTICE RAVINDRA MAITHANI
Anticipatory Bail Application No. 76 of 2021
Saubhagya Bhagat ...Applicant
Versus
State of Uttarakhand And Another ....Respondents
Present:-
Counsel for the applicant : Mr. G.C. Lakhchaura,
Advocate.
Counsel for the State : Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 34 of 2021
Devansh Khandelwal and Another ...Applicants
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Navneet Kaushik,
Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 188 of 2021
Praveen Tyagi ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Parikshit Saini,
Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 215 of 2021
Sudhanshu Mehta ..Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Vipul Sharma, Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Counsel for the informant: Ms. Prabha Naithani,
Advocate.
Anticipatory Bail Application No. 244 of 2021
Prarthana Asthana ...Applicant
Versus
State of Uttarakhand And Another ....Respondents
Present:-
Counsel for the applicant: Mr. Rohit Arora, Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 245 of 2021
Prarthana Asthana ...Applicant
Versus
State of Uttarakhand And Another ....Respondents
Present:-
Counsel for the applicant: Mr. Rohit Arora, Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 256 of 2021
Khimanand Dani ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Dharmendra Barthwal,
Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 259 of 2021
Badri Prasad Arya ...Applicant
Versus
State of Uttarakhand And Another ....Respondents
Present:-
Counsel for the applicant: Mr. Dharmendra Barthwal,
Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 261 of 2021
Vikas Kumar Sharma ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Aditya Singh, Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 268 of 2021
Deepak Kumar Rao ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Ms. Pushpa Joshi, Senior
Advocate assisted by Ms.
Chetna Latwal, Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 281 of 2022
Neeraj Kumar ...Applicant
Versus
State of Uttarakhand and Others ....Respondents
Present:-
Counsel for the petitioner: Mr. Tajhar Qayyum,
Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 29 of 2022
Yogesh Kumar Gautam ...Applicant
Versus
State of Uttarakhand and Another ....Respondents
Present:-
Counsel for the applicant: Mr. Nagesh Aggarwal,
Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 63 of 2022
Rahul Kumar Yadav ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Arvind Vashistha,
Senior Advocate assisted by
Ms. Disha Vashistha and
Mr. Hemant Singh Mahar,
Advocates.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 101 of 2022
Piyush Baliyan and Another ...Applicants
Versus
State of Uttarakhand and Others ....Respondents
Present:-
Counsel for the applicants: Mr. Sandeep Kothari,
Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 150 of 2022
Lal Bahadur Kushwaha ...Applicant
Versus
State of Uttarakhand and Others ....Respondents
Present:-
Counsel for the applicant: Mr. Amit Kapri, Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 156 of 2022
Reshama ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Gaurav Singh, Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 159 of 2022
Bhaguli Devi ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Pooran Singh Rawat,
Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 161 of 2022
Naseem and Another ...Applicants
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicants: Mr. Mohd. Safdar, Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 189 of 2022
Furkan ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Rajveer Singh, Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 195 of 2022
Pranav Obrai and Others ...Applicants
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicants: Mr. Abhishek Verma,
Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 198 of 2022
Neeraj Kumar Loshali ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Ganesh Kandpal,
Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Counsel for the informant: Mr. B.D. Jha, Ms. Preeti Jha
and Ms. Priyanka Jha,
Advocates.
Anticipatory Bail Application No. 213 of 2022
Nayima ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Bhuwnesh Joshi,
Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 219 of 2022
Ranjeet Kaur alias Geeta ...Applicant
Versus
State of Uttarakhand and Another ....Respondents
Present:-
Counsel for the applicant: Mr. Raj Kumar Singh,
Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 253 of 2022
Raja Bhatt and Others ...Applicants
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Vikas Bahuguna,
Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 254 of 2022
Shadab ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Rajat Mittal, Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 256 of 2022
Kamlesh Singh Chauhan ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Rajat Mittal, Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 288 of 2022
Amit Kumar Singh ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Raj Kumar Singh,
Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 304 of 2022
Shubham Kumar ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Gaurav Singh, Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 310 of 2022
Sandeep Singh Kandari and Another ...Applicants
Versus
State of Uttarakhand and Others ....Respondents
Present:-
Counsel for the applicants: Mr. B.S. Adhikari, Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 329 of 2022
Sayyaz ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Bilal Ahmed, Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 348 of 2022
Danish Raza ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Sanjeev Singh,
Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 26 of 2023
Kiran Rana ...Applicant
Versus
State of Uttarakhand and Another ....Respondents
Present:-
Counsel for the applicant: Mr. C.K. Sharma, Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 164 of 2023
Deshraj Saini ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Navneet Kaushik,
Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
Anticipatory Bail Application No. 176 of 2023
Sanjay Bhalla ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Counsel for the applicant: Mr. Abhishek Verma,
Advocate.
Counsel for the State: Mr. J.S. Virk, learned
Deputy Advocate General,
Mr. Rakesh Kumar Joshi,
and Mr. Pankaj Joshi,
learned Brief Holders for
the State.
The Court made the following:
Judgment: ( per: Hon'ble Ravindra Maithani, J.)
INTRODUCTION
I have read the draft judgment authored by Manoj Kumar
Tiwari, J. I regret my inability to agree with it in answering the
present reference.
2. The following question of law has been referred to the
Larger Bench for consideration:-
"Whether an application for anticipatory bail is
maintainable after the charge sheet has been filed
in the court?"
3. Instant reference has been made on the ground that in
the case of Sushila Aggarwal 1, the Constitution Bench of the
Hon'ble Supreme Court has held that the anticipatory bail may be
entertained till the charge sheet has not been filed, but a
Coordinate Bench of this Court had considered anticipatory bail
even after filing of the charge sheet. Initially, the reference was
made on 17.08.2022, by a Single Judge in ABA No.76 of 2021,
Saubhagya Bhagat Vs. State of Uttarakhand and Another, and
connected matters. It was answered by a Division Bench of this
Court on 07.09.2022 holding that an anticipatory bail is
maintainable even after filing of the charge sheet. But, the matter
has further been referred by the Single Judge, on 28.09.2022, to
the Larger Bench observing as follows:-
1 Sushila Aggarwal and others v. State (NCT of Delhi) and another, (2020) 5 SCC 1
"6. This Bench is faced with a difficult situation. On the
one hand, there is answer to the reference and, on the other
hand, there are observations of the Hon'ble Supreme Court
in the case of Sushila Aggarwal (supra). Instead of finding a
way out within the parameters of law, this Court deems it
disciplined action under law to refer the matter to the Larger
Bench, so that the issue may be resolved."
4. Heard learned counsel for the parties and perused the
record.
RIGHT TO LIFE AND PERSONAL LIBERTY
5. The existence of a human being 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."
6. 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.
7. 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 land" as written in the Magna Carta, is
equivalent to the word "procedure established by law", as
mentioned in Article 21 of the Constitution, this Court refrains to
go deeper into that aspect.
8. But, it would be apt to briefly discuss as to how the
liberty clause in Article 21 of the Constitution was debated in our
Constituent Assembly. On 06.12.1948, Article 15 (Article 21 of the
Constitution) was discussed in the Constituent Assembly. This
Article 15 then was in the following words, "No person shall be
deprived of his life or liberty without due process of law." The
Drafting Committee made certain changes in it and in the
discussion that was held on 06.12.1948, one of the Members
argued, ".....the Advisory Committee on Fundamental Rights
appointed by the Constituent Assembly had suggested that no
person shall be deprived of his life or liberty without due
process of law; and I really do not understand how the word
"personal" and "according to procedure established by law"
have been brought into article 15 by the Drafting Committee."
There was a lot of discussion on this Article.
9. On 13.12.1948, finally, the issue was addressed by the
Chairman of the Drafting Committee:-
"One point of view says that "due process of law" must be
there in this article; otherwise the article is a nugatory one.
The other point of view is that the existing phraseology is
quite sufficient for the purpose. Let me explain what exactly
"due process" involves.
The question of "due process" raises, in my judgment, the
question of the relationship between the legislature and the
judiciary. In a federal Constitution, it is always open to the
judiciary to decide whether any particular law passed by the
legislature is ultra vires or intra vires in reference to the
powers of legislation which are granted by the Constitution
to the particular legislature. If the law made by a particular
legislature exceeds the authority of the power given to it by
the Constitution, such law would be ultra vires and invalid.
That is the normal thing that happens in all federal
Constitutions. Every law in a federal Constitution, whether
made by the Parliament at the Centre or made by the
legislature of a State, is always subject to examination by
the judiciary from the point of view of the authority of the
legislature making the law. The 'due process' clause, in my
judgment, would 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."
10. The journey of the interpretation of Article 21 from the
case of A.K Gopalan 2 to Maneka Gandhi 3, 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
2 A.K Gopalan v. State of Madras, 1950 SCC 228
3 Maneka Gandhi v.. Union of India, (1978) 1 SCC 248
construed for all times as if the court was sitting the day it was
enacted.", and (ii) - In re The Central Provinces and Berar Sales of
Motor Spirit and Lubricants Taxation Act, 1938 (Central Provinces
and Berar Act No. XIV of 1938), 1938 SCC OnLine FC 2- "A Federal
Court will not strengthen, but only derogate from, its position; if it
seeks to do anything but declare the law; but it may rightly reflect
that a Constitution of government is living an organic thing, which
of all instruments has the greatest claim to be construed ut res
magis valeat quam pereat."]
11. In the case of A.K. Gopalan (supra), the Hon'ble
Supreme Court then observed that, "No extrinsic aid is needed to
interpret the words of Article 21, which in my opinion, are not
ambiguous. Normally read, and without thinking of other
Constitutions, the expression "procedure established by law"
must mean procedure prescribed by the law of the State. If the
Indian Constitution wanted to preserve to every person the
protection given by the due process clause of the American
Constitution there was nothing to prevent the Assembly from
adopting the phrase, or if they wanted to limit the same to
procedure only, to adopt that expression with only the word
"procedural" prefixed to "law." But, in the case of Maneka
Gandhi (supra), the Hon'ble Supreme Court observed that, "Article
14 strikes at arbitrariness in State action and ensures fairness
and equality of treatment. The principle of reasonableness,
which legally as well as philosophically, is an essential element
of equality or non-arbitrariness pervades Article 14 like a
brooding omnipresence and the procedure contemplated by
Article 21 must answer the test of reasonableness in order to
be in conformity with Article 14. It must be "right and just and
fair" and not arbitrary, fanciful or oppressive; otherwise, it
would be no procedure at all and the requirement of Article 21
would not be satisfied."
12. The "due process of law" clause that was avoided by the
Constituent Assembly has, by interpretation, been read into Article
21 by the Hon'ble Supreme Court in the case of Maneka Gandhi
(supra).
STATUTORY PROVISIONS
13. Code of Criminal Procedure, 1973 ("the Code") provides
procedure for criminal cases unless some specific statutes provide
otherwise. The Code classifies the offences into cognizable and non-
cognizable category as hereunder:-
"2. Definitions.--In this Code, unless the context otherwise
requires,--
(l) "non-cognizable offence" means an offence for which,
and "non-cognizable case" means a case in which, a
police officer has no authority to arrest without
warrant;...................."
14. 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
15. 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).
16. 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 submission to
custody on an oral intimation of arrest shall be presumed
and, unless the circumstances otherwise require or
unless the police officer is a female, the police officer shall
not touch the person of the woman for making her arrest.
(2) If such person forcibly resists the endeavour to arrest
him, or attempts to evade the arrest, such police officer or
other person may use all means necessary to effect the
arrest.
(3) Nothing in this section gives a right to cause the death of
a person who is not accused of an offence punishable with
death or with imprisonment for life.
(4) Save in exceptional circumstances, no woman shall be
arrested after sunset and before sunrise, and where such
exceptional circumstances exist, the woman police officer
shall, by making a written report, obtain the prior
permission of the Judicial Magistrate of the first class within
whose local jurisdiction the offence is committed or the
arrest is to be made.
17. Does it mean that since a police officer has an
authority to arrest without warrant, he should invariably arrest a
person as soon as allegations are levelled against some person for
commission of some cognizable offences? The answer is in
NEGATIVE.
18. In the case of Joginder Kumar 4, the Hon'ble Supreme
Court discussed the law on arrest and observed "The quality of a
nation's civilisation can be largely measured by the methods it
uses in the enforcement of criminal law"....." The horizon of
human rights is expanding." The Hon'ble Supreme Court further
emphasized that "No arrest can be made because it is lawful for
the police officer to do so. The existence of the power to arrest
is one thing. The justification for the exercise of it is quite
another. The police officer must be able to justify the arrest
apart from his power to do so. Arrest and detention in police
lock-up of a person can cause incalculable harm to the
reputation and self-esteem of a person."
19. In the case of Arnesh Kumar 5, also, the Hon'ble
Supreme Court was engaged on the question of arrest, the attitude
of police and observed that "Arrest brings humiliation, curtails
freedom and casts scars forever."
20. In the case of Arnesh Kumar (supra), the Hon'ble
Supreme Court discussed the provisions of Section 41 and 41-A of
the Code. After examining the essence of these two provisions, the
4 Joginder Kumar v. State of U.P., (1994) 4 SCC 260
5 Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
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
21. 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.
22. 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
there are grounds for believing that the accusations are well-
founded, further detention of an accused person may be ordered.
This detention may either be in judicial custody or police custody.
This exercise, which is done by a Magistrate, when an accused is
produced before him for the first time, in real sense is a kind of
judicial scrutiny as to whether accusation or allegation is well
founded or whether further detention is necessary. In fact, remand
is essentially the first judicial scrutiny of arrest.
23. Once arrested, how a person may restore his liberty?
There are provisions in the Code relating to bail. What is bail? What
are bailable and non-bailable offences? The Code classifies the
offences into bailable and non-bailable offences. The Schedule given
in the Code makes the distinction. This categorization is also based
on various factors, predominantly based on gravity of offences, they
are classified as bailable and non-bailable. Heinous offences are
generally classified as a non-bailable offence. It is not that in a non-
bailable offence a person may not be released on bail, but then
such a bail application is considered by the court, whereas in the
case of bailable offences, as a matter of right, bail is claimed by the
arrestee. It is governed by Section 436 of the Code.
24. In non-bailable offences, the bail may be granted.
Sections 437 and 439 of the Code mainly make provisions in this
regard. In non-bailable cases, though bail may not be claimed as a
matter of right.
25. It is settled law that bail is a rule and jail is an
exception. In the case of Moti Ram6, the Hon'ble Supreme Court
traced the history of the concept of bail as follows:-
"9. The concept of bail has a long history briefly set out in
the publication on 'Programme in Criminal Justice Reform':
"The concept of bail has a long history and deep roots
in English and American law. In medieval England, the
6 Moti Ram and Others V. State of Madhya Pradesh, (1978) 4 SCC 47
custom grew out of the need to free untried prisoners
from disease-ridden jails while they were waiting for the
delayed trials conducted by travelling justices. Prisoners
were bailed, or delivered, to reputable third parties of
their own choosing who accepted responsibility for
assuring their appearance at trial. If the accused did not
appear, his bailor would stand trial in his place.
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"
26. 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, if the step you
contemplate is going to be of any use to him." Law, at the
service of life, must respond interpretatively to raw
realities and make for liberties."
27. When an accused is arrested and he seeks bail, what
would be the consideration? In the case of Rao Harnarain Singh 7,
the Court had discussed this concept and observed that, "There
cannot be inflexible rules governing a subject which rests
principally with the Courts discretion in the matter of
allowance or refusal of bail. " Thereafter, the Court has
illustratively enumerated certain factors for consideration of bail.
In the case of State of U.P. through CBI 8, the Hon'ble Supreme
Court discussed the law as to what are the factors that are to be
considered while considering an application for bail.
28. It may be noted that there are other provisions in law,
which relate to grant of bail. For example, under Section 167 of the
Code; if within the stipulated time the investigation has not been
completed, an arrestee becomes entitled to default bail. Such a
provision is contained under Section 167(2) of the Code.
ANTICIPATORY BAIL
29. There is another aspect of the matter. If a person
apprehends his arrest in the non-bailable offences, Section 438 of
the Code provides for filing of an anticipatory bail application.
Section 438 of the Code is as follows:-
"438. Direction for grant of bail to person apprehending
arrest.--(1) When any person has reason to believe that he
may be arrested on an accusation of having committed a
non-bailable offence, he may apply to the High Court or the
Court of Session for a direction under this section; and that
7 Rao Harnarain Singh and Others v. The State, AIR 1958 P&H 123
8 State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21
Court may, if it thinks fit, direct that in the event of such
arrest, he shall be released on bail.
(2) When 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 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)."
30. A bare perusal of Section 438 of the Code reveals that
it does not use the words "anticipatory bail". The only difference
between a regular bail and an anticipatory bail is that whereas the
ordinary bail is granted after arrest and therefore means release
from the custody, an anticipatory bail is granted in anticipation of
arrest and it becomes effective at the very moment of arrest. The
anticipatory bail means "bail in anticipation of arrest".
31. In the case of Balchand Jain 9, the Hon'ble Supreme
Court observed that, "In fact "anticipatory bail" is a misnomer.
It is not as if bail is presently granted by the court in
anticipation of arrest. When the court grants "anticipatory
bail", what it does is to make an order that in the event of
arrest, a person shall be released on bail. Manifestly there is no
question of release on bail unless a person is arrested and,
therefore, it is only on arrest that the order granting
"anticipatory bail" becomes operative."
32. The scope and application of Section 438 of the Code
has come up for interpretation on various occasions before the
Hon'ble Supreme Court. On two points, the discussions have been
made on multiple occasions. They are :-
(i) Whether for anticipatory bail, an accused has to
make out a "special case"?
(ii) What is the life of anticipatory bail? In other
words, whether anticipatory bail may expire the
moment when charge sheet is filed? Or the anticipatory
bail shall continue till the conclusion of trial?
9 Balchand Jain v. State of M.P., (1976) 4 SCC 572
Special Case
33. In the case of Gurbaksh Singh Sibbia 10, the Hon'ble
Supreme Court observed that "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." While observing this, the Hon'ble Supreme Court
in the case of Sibbia (supra) observed that if a person is required to
make out a special case for grant of anticipatory bail, it would
reduce the statutory power conferred by Section 438 to a dead
letter. The Hon'ble Supreme Court observed that "To say that the
applicant must make out a "special case" for the exercise of
the power to grant anticipatory bail is really to say nothing.
The applicant has undoubtedly to make out a case for the grant
of anticipatory bail. But one cannot go further and say that he
must make out a "special case"."
34. In the case of Siddharam Satlingappa Mhetre 11, 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).
10 Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565
11 Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694
Life Of Anticipatory Bail
35. 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
operation of the order to a short period until after the filing of
an FIR in respect of the matter covered by the order. The
applicant may in such cases be directed to obtain an order of
bail under Section 437 or 439 of the Code within a reasonably
short period after the filing of the FIR as aforesaid. But this
need not be followed as an invariable rule. The normal rule
should be not to limit the operation of the order in relation to
a period of time."
36. In the case of Salauddin Abdulsamad Shaikh 12, the
Hon'ble Supreme Court held that "anticipatory bail should be
granted only for limited period and after that it should be left
to the regular court". This was not upheld by the Hon'ble Supreme
Court in the case of Mhetre (supra). In the case of Mhetre (supra)
the Hon'ble Supreme Court observed that, "Section 438 CrPC
does not mention anything about the duration to which a
12 Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996) 1 SCC 667
direction for release on bail in the event of arrest can be
granted......................once the accused is released on bail by
the trial court, then it would be unreasonable to compel the
accused to surrender before the trial court and again apply for
regular bail." The finding, in fact, in the case of Salauddin (supra)
was held in contradiction to the law declared by the Constitution
Bench in the case of Sibbia (supra).
37. In the case of Sushila Aggarwal (supra) also, the
Hon'ble Supreme Court upheld that the anticipatory bail once
granted continues until conclusion of trial, unless otherwise the
duration is restricted by the court.
STAGE OF ANTICIPATORY BAIL
38. In the case of Sibbia(supra), the Hon'ble Supreme
Court discussed the nature of anticipatory bail. The Hon'ble
Supreme Court discussed as to what does "bail" mean and what is
the nature of anticipatory bail. In para 7 of the judgment, the
Hon'ble Supreme Court observed as hereunder:-
"7. The facility which Section 438 affords is generally
referred to as 'anticipatory bail', an expression which was
used by the Law Commission in its 41st Report. Neither the
section nor its marginal note so describes it but, the
expression 'anticipatory bail' is a convenient mode of
conveying that it is possible to apply for bail in anticipation
of arrest. Any order of bail can, of course, be effective only
from the time of arrest because, to grant bail, as stated in
Wharton'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
against police custody following upon arrest for offence
or offences in respect of which the order is issued. In
other words, unlike a post-arrest order of bail, it is a pre-
arrest legal process which directs that if the person in whose
favour it is issued is thereafter arrested on the accusation in
respect of which the direction is issued, he shall be released
on bail. Section 46(1) of the Code of Criminal Procedure
which deals with how arrests are to be made, provides that
in making the arrest, the police officer or other person
making the arrest "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". A direction
under Section 438 is intended to confer conditional
immunity from this 'touch' or confinement."
(emphasis supplied)
39. The above observation of the Hon'ble Supreme Court
makes it abundantly clear that the anticipatory bail is an
apprehension against police custody, which the Hon'ble Supreme
Court recorded as "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."
40. In the same paragraph above, the Hon'ble Supreme
Court also discussed as to what the word "arrest" means. The
Hon'ble Supreme Court in the case of Sibbia (supra), also discussed
the 41st Law Commission Report, which for the first time pointed
out the necessity of introducing a provision in the Code enabling
the High Court and the Court of Sessions to grant "anticipatory
bail". In para 39.9 of the Report, it is observed as follows:-
"The suggestion for directing the release of a person on bail
prior to his arrest (commonly known as "anticipatory bail")
was carefully considered by us. Though there is a conflict of
judicial opinion about the power of a court to grant
anticipatory bail, the majority view is that there is no such
power under the existing provisions of the Code. The
necessity for granting anticipatory bail arises mainly
because sometimes influential persons try to implicate
their rivals in false cases for the purpose of disgracing
them or for other purposes by getting them detained in
jail for some days. In recent times, with the
accentuation of political rivalry, this tendency is
showing signs of steady increase. Apart from false cases,
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)
41. 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
being 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 introducing a provision in the Code enabling the
High Court and the Court of Session to grant "anticipatory
bail". It observed in para 39.9 of its report (Volume I):
"The suggestion for directing the release of a person
on bail prior to his arrest (commonly known as "anticipatory
bail") was carefully considered by us. Though there is a
conflict of judicial opinion about the power of a court to
grant anticipatory bail, the majority view is that there is no
such power under the existing provisions of the Code. The
necessity for granting anticipatory bail arises mainly
because sometimes influential persons try to implicate their
rivals in false cases for the purpose of disgracing them or for
other purposes by getting them detained in jail for some
days. In recent times, with the accentuation of political
rivalry, this tendency is showing signs of steady increase.
Apart from false cases, 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.
We recommend the acceptance of this suggestion. We are
further of the view that this special power should be
conferred only on the High Court and the Court of Session,
and that the order should take effect at the time of arrest or
thereafter.
In order to settle the details of this suggestion, the following
draft of a new section is placed for consideration:
'497-A. (1) When any person has a reasonable
apprehension that he would be arrested on an
accusation of having committed a non-bailable offence,
he may apply to the High Court or the Court of Session
for a direction under this section. That court may, in its
discretion, direct that in the event of his arrest, he shall
be released on bail.
(2) A Magistrate taking cognizance of an offence against
that person shall, while taking steps under Section
204(1), either issue summons or a bailable warrant as
indicated in the direction of the court under sub-section
(1).
(3) If any person in respect of whom such a direction is
made is arrested without warrant by an officer in charge
of a police station on an accusation of having committed
that offence, and is prepared either at the time of arrest
or 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 that he
would be arrested on an accusation of having committed
a non-bailable offence, he may apply to the High Court or
the Court of Session for a direction under this section;
and that court may, if it thinks fit, direct that in the
event of such arrest, he shall be released on bail.
(2) 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 issue in the first instance against that person, he
shall issue a bailable warrant in conformity with the
direction of the court under sub-section (1)."
"6. The Law Commission, in para 31 of its 48th Report
(1972), made the following comments on the aforesaid
clause:
"The Bill introduces a provision for the grant of
anticipatory bail. This is substantially in accordance with
the recommendation made by the previous Commission. We
agree that this would be a useful addition, though we must
add that it is in very exceptional cases that such a power
should be exercised.
We are further of the view that in order to ensure that the
provision is not put to abuse at the instance of
unscrupulous petitioners, the final order should be made
only after notice to the Public Prosecutor. The initial order
should only be an interim one. Further, the relevant section
should make it clear that the direction can be issued only
for reasons to be recorded, and if the court is satisfied that
such a direction is necessary in the interests of justice.
It will also be convenient to provide that notice of the
interim order as well as of the final orders will be given to
the Superintendent of Police forthwith."
Clause 447 of the Draft Bill of 1970 was enacted with
certain modifications and became Section 438 of the Code of
Criminal Procedure, 1973 which we have extracted at the
outset of this judgment."
42. The question that has been posed is with regard to the
stage at which the anticipatory bail application may be entertained.
43. Subsequent to the judgment in the case of Sibbia
(supra), in the cases of Adil 13, Shivam 14 and Dr. Kartikey 15, the
Hon'ble Allahabad High Court entertained the anticipatory bail
application even after filing of the charge sheet.
44. In the case of Shamim Ahmed 16, 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.
45. Not only this, the Hon'ble Supreme Court in the cases
of Bharat Chaudhary 17, Ravindra Saxena 18, Vinod Kumar
Sharma 19, Bhadresh Bipinbhai 20 and Mahdoom Bava 21 considered
anticipatory bail application despite charge sheet having been filed.
46. 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 addressed on behalf of the
learned counsel for the respondent State that the courts
specified in Section 438 of CrPC are denuded of their power
under the said section where either the cognizance is taken by
the court concerned or a charge-sheet is filed before the
appropriate court."
13 Adil v. State of U.P., 2020 SCC OnLine All 1429
14 Shivam v. State of U.P., 2021 SCC OnLine All 264
15 Dr. Kartikeya Sharma v. State, Criminal Misc. Anticipatory Bail Application No.
3107 of 2023
16 Shamim Ahmed v. State, 2003 SCC OnLine Cal 148
17 Bharat Chaudhary v. State of Bihar, (2003) 8 SCC 77
18 Ravindra Saxena v. State of Rajasthan, (2010) 1 SCC 684
19 Vinod Kumar Sharma v. State of Uttar Pradesh, 2021 SCC OnLine SC 3225
20 Bhadresh Bipinbhai Sheth v. State of Gujarat, (2016) 1 SCC 152
21 Mahdoom Bava v. Central Bureau of Investigation, 2023 SCC OnLine SC 299
47. In the case of Ravindra Saxena (supra), the Hon'ble
Supreme Court observed that "In our opinion, the High Court
ought not to have left the matter to the Magistrate only on the
ground that the challan has now been presented."
48. In the case of Vinod Kumar Sharma (supra), 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."
49. In the case of Bhadresh Bipinbhai Sheth (supra), the
Hon'ble Supreme Court, in fact, upheld the grant of anticipatory
bail during trial, when the accused was additionally charged for an
offence under Section 376 IPC.
50. In the case of Mahdoom Bava (supra), the Hon'ble
Supreme Court allowed the anticipatory bail even after filing of a
charge sheet while observing "More importantly, the appellants
apprehend arrest, not at the behest of the CBI but at the
behest of the Trial Court. This is for the reason that in some
parts of the country, there seems to be a practice followed by
Courts to remand the accused to custody, the moment they
appear in response to the summoning order. The correctness of
such a practice has to be tested in an appropriate case."
51. But, in the case of HDFC Bank Limited 22, the Hon'ble
Supreme Court held that after filing of chargesheet, anticipatory
bail may not be entertained. In Para 19 of the judgment, the
Hon'ble Supreme Court observed as follows:-
"19. The object of Section 438 CrPC has been repeatedly
explained by this Court and the High Courts to mean
that a person should not be harassed or humiliated in
order to satisfy the grudge or personal vendetta of the
complainant. But at the same time the provisions of
Section 438 CrPC cannot also be invoked to exempt the
accused from surrendering to the court after the
investigation is complete and if charge-sheet is filed against
him. Such an 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)
52. 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
22 HDFC Bank Limited v. J.J. Mannan alias J.M. John Paul, (2010) 1 SCC 679
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 Sharma (supra) and
Mahdoom Bava (supra), the Hon'ble Supreme Court did
not interpret Section 438 of the Code. In the case of
NHAI 23, the Hon'ble Supreme Court in such situation
observed that, "Likewise, in Hindustan Zinc
Ltd. v. Friends Coal Carbonisation, (2006) 4 SCC
445, the learned Single Judge correctly observed
that the Supreme Court did not specifically address
the issue as to whether the court has the power
under Section 34 to modify the award. In stating
that the Supreme Court affixed a seal of approval
on the decision of the trial court modifying the
award would not be wholly correct. In para 12 only
one ground was argued in the appeal, which ground
found favour with this Court. In any case, a
modification of an award upheld on facts without
any discussion on the law does not carry the matter
very much further."
(iii) In the case of HDFC (supra), the Hon'ble
Supreme Court has held that Anticipatory bail
application may not be entertained post filing of
chargesheet because if it is done, it would amount to
violence to the provisions of Section 438 Cr.P.C.
(iv) In the case of Sushila Aggarwal (supra), in Para
7.1, the Hon'ble Supreme Court categorically observed
that an anticipatory bail application could be moved
during investigation, but till the chargesheet has not
been filed. The Hon'ble Supreme Court, in this context,
observed as hereunder:-
23 NHAI v. M. Hakeem, (2021) 9 SCC 1
"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. Therefore, ultimately it is for the
court concerned to consider the application 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 till the chargesheet has not been
filed.
(vi) It is pertinent to note that in Para 7.1 of the
judgment in the case of Sushila Aggarwal (supra), the
Hon'ble Supreme Court, has also recorded that
anticipatory bail application could be moved at a stage
after the investigation is concluded. But, as stated, the
Court had also observed that such an application could
be moved uptil the stage when the chargesheet has not
been filed. For the following reasons, completion of
investigation, per se, does not mean that the
chargesheet has been filed.
(a) Once chargesheet is filed, the police may not
proceed against the person chargesheeted,
although, further investigation may be done
under Section 173 (8) of the Code.
Investigation is done by the Investigating
Officer. After conclusion of the investigation,
the Investigating Officer, on his own, does
not go to the court to submit the
chargesheet. There are some more stages
after completion of investigation and filing of
the chargesheet. From the Investigating
Officer, the chargesheet moves in the hands
of various persons. In the State of
Uttarakhand, the U.P. Police Regulations
that are applicable, make provisions in that
context. Para 122 of the Regulations, is
important to note in this aspect. It is as
follows:-
"122. (i) An investigation should be completed as
soon as possible and when complete the investigating
officer must comply with the provisions of Section
161-171 and 173 of the Code of Criminal Procedure,
1898. The report prescribed by Section 173 must
under that section be submitted by the officer
incharge of the police station under intimation to
the Superintendent of Police and should be in the
form of charge-sheet (Police Form No.339), if the case
is sent for trial and in the form of final report (Police
Form No.340), if the case is not sent for trial. The
charge-sheet with the final diary in the cases shall
be submitted to the Court through the circle
officer and the public prosecutor and should reach
the Court within four weeks of the date of lodging of
the first information report in summons and warrants
cases and eight weeks in Sessions cases. None of the
circle officer and the public prosecutor should
normally retain the charge-sheet for more than
a week and the latter should submit it to the Court
concerned within the time-limit prescribed. The
prescribed time-limit should 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 various steps. There is a
huge gap in between. Therefore, Para 7.1 of
the judgment in the case of Sushila
Aggarwal (supra) is clear that after
completion of the investigation, an
application for anticipatory bail may be
entertained, but once chargesheet is filed,
an application for anticipatory bail may not
be entertained.
53. In order to ascertain the stage at which an application
for anticipatory bail may be entertained, the scope, meaning and
extent of the word "arrest" in Section 438 of the Code needs to be
examined. The contours of interpreting the word "arrest" as finds
place in Section 438 of the Code is required to be defined. How far
can this Court go to gather its meaning? What Rules have to be
applied? What would be the impact of Law Commission's Report,
statements, objects and reasons of the Act?
INTERPRETATION OF STATUTE
54. The principles of interpretation of statutes are settled
that a section in the statute should not be read in isolation. It
should be read along with other sections of the statute.
55. In the case of Assessing Authority-Cum-Excise and
Taxation Officer, Gurgaon 24, the Hon'ble Supreme Court observed
that "for it is well settled rule of interpretation that not one
section should be construed in isolation, but statute shall be
read as a whole on each part throwing meaning on the other."
56. In the case of Nyadar Singh 25, the Hon'ble Supreme
Court observed as hereunder:-
"23. It is true that where statutory language should be given
its most obvious meaning -- 'to accord with how a man in
the street might answer the problems posed by the words' --
the statute must be taken as one finds it. Considerations
relevant to interpretation are not whether a differently
conceived or worded statute would have yielded results more
consonant with fairness and reasonableness. Consequences
do not alter the statutory language, but may only help to fix
its meaning."
57. The Rule of Interpretation has many facets. The Rule of
Literal Interpretation, Purposive or Harmonious Construction and
Mischief Rule, all are relevant for the purpose of the instant matter.
58. In the case of Gwalior Rayon Silk MFG. (WVG) Co.
Ltd. 26, the Hon'ble Supreme Court 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
24 Assessing Authority-Cum-Excise and Taxation Officer, Gurgaon v. East India
Cotton MFG. Co. Ltd., Faridabad, (1981) 3 SCC 531
25 Nyadar Singh v. Union of India, (1988) 4 SCC 170
26 Gwalior Rayon Silk MFG. (WVG) Co. Ltd. v. Custodian of Vested Forests,
Palghat, 1990 Supp SCC 785
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 come from the
legislative mint with some intrinsic meaning. Sometimes it
remains unchanged. Like currency, words sometimes
appreciate or depreciate in value." The learned Judge further
stated: "Legislation has an aim; it seeks to obviate some
mischief, to supply an inadequacy, to effect a change of
policy, to formulate a plan of government. That aim, that
policy is not drawn, like nitrogen, not of the air; it is evinced
in the language of the statute, as read in the light of other
external manifestations of purpose. That is what the judge
must seek and effectuate."
59. In the case of SP Gupta 27, the Hon'ble Supreme Court,
on that aspect, observed that the Report of Law Commission can be
looked into to understand the history of the legislation, and the
object with which the law was enacted. In Para 1235 of the
judgment, the Hon'ble Supreme Court observed as hereunder:-
"1235. The Report of the Committees of the Law
Commission are entitled to great respect as they are
prepared by experienced persons after taking into
consideration all relevant aspects and sometimes the
evidence collected by them from several sources. If they are
27 SP Gupta v. Union of India, 1981 Supp SCC 87
to be excluded many opinions expressed in many of the
books relied on by the petitioners themselves have to be
excluded. Reports of the Law Commission can be looked into
to understand the history of the legislation, the object with
which certain legal provisions are enacted and what
advantages may be derived by adopting a particular policy.
Reports of the Law Commission have been made use of by
this Court earlier to understand the history of the legislation
which was under consideration and the object with which it
was passed (vide Balchand Jain v. State of M.P., (1976) 4
SCC 572).........."
60. In the case of A. Manjula Bhashini 28, the Hon'ble
Supreme Court observed that, in fact, the statement of object and
reasons can be referred to for understanding the background of the
Act. In Para 40 of the judgment, the Hon'ble Supreme Court
observed as hereunder:-
"40. The proposition which can be culled out from
the aforementioned judgments is that although the
Statement of Objects and Reasons contained in the Bill
leading to enactment of the particular Act cannot 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."
61. 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,
28 A. Manjula Bhashini and Others v. Managing Director, Andhra Pradesh Women's
Cooperative Finance Corporation Limited, (2009) 8 SCC 431
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.
62. In the case of Bengal Immunity Company Limited 29, in
Para 23, the Hon'ble Supreme Court has discussed the Heydon's
case and the Rules of Interpretation, which originated therefrom. It
reads as follows:-
"23. It is a sound rule of construction of a statute firmly
established in England as far back as 1584 when Heydon's
case [3 Co. Rep 7a : 76 ER 637] was decided that--
"... for the sure and true interpretation of all statutes
in general (be they penal or beneficial, restrictive or
enlarging of the common law) four things are to be
discerned and considered:
1st. What was the common law before the making of
the Act.
2nd. What was the mischief and defect for which the
common law did not provide.
3rd. What remedy the Parliament hath resolved and
appointed to cure the disease of the Commonwealth.,
and
4th. The true reason of the remedy; and then the office
of all the Judges is always to make such construction
as shall 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
29 Bengal Immunity Company Limited v. State of Bihar, AIR 1955 SC 661
and remedy, according to the true intent of the makers
of the Act, pro bona publico."
In In re Mayfair Property Company [LR (1898) 2 Ch 28 at
p. 35] Lindley, M.R. in 1898 found the rule "as necessary
now as it was when Lord Coke reported Heydon case".
In Eastman Photographic Material
Company v. Comptroller General of Patents, Designs and
Trade Marks [LR (1898) AC 571 at 576] Earl of Halsbury
reaffirmed the Rule as follows:
"My Lords, it appears to me that to construe the
Statute in question, it is not only legitimate but highly
convenient to refer both to the former Act and to the
ascertained evils to which the former Act had given
rise, and to the later Act which provided the remedy.
These three being compared I cannot doubt the
conclusion."
It appears to us that this rule is equally applicable to the
construction of Article 286 of our Constitution. In order to
properly interpret the provisions of that article it is,
therefore, necessary to consider how the matter stood
immediately before the Constitution came into force, what
the mischief was for which the old law did not provide and
the remedy which has been provided by the Constitution to
cure that mischief."
63. In the case of Attorney General for India 30, 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
30 Attorney General for India v. Satish, (2022) 5 SCC 545
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 intent of the makers of the Act, pro bono
publico. This rule was approved, and its purport explained,
in Kanwar Singh v. Delhi Admn., (1965) 1 SCR 7 : AIR 1965
SC 871 : (1965) 2 Cri LJ 1, thus : Kanwar Singh v. Delhi
Admn., (1965) 1 SCR 7 : AIR 1965 SC 871 : (1965) 2 Cri LJ
1, AIR p. 874, para 10)
"10. ... It is the duty of the court in construing a statute
to give effect to the intention of the legislature. If,
therefore, giving a literal meaning to a word used by the
draftsman, particularly in a penal statute, would defeat
the object of the legislature, which is to suppress a
mischief, the court can depart from the dictionary
meaning or even the popular meaning of the word and
instead give it a meaning which will advance the remedy
and suppress the mischief."
"64. The aim of such statutory construction was put, pithily
and simply in Swantraj v. State of Maharashtra, (1975) 3
SCC 322 : 1974 SCC (Cri) 930: (SCC p. 323, para 1)
"1. Every legislation is a social document and judicial
construction seeks to decipher the statutory mission,
language permitting, taking the one from the rule in
Heydon case, (1584) 3 Co Rep 7a : 76 ER 637, Maxwell
on the Interpretation of Statutes, 12th Edn. (1969) pp.
40, 96. of suppressing the evil and advancing the
remedy."
64. The four steps to understand and interpret the law, as
per the Mischief Rule, is - Firstly, what was the law prior to
introduction of Section 438 of the Code in the statute book?
Secondly, what was the mischief and defect, for which the then
existing law did not provide? Thirdly, the remedy resolved and
appointed to cure the disease plaguing the society and, finally, the
true reasons of the remedy. These all questions are answered in
Para 4, 5 and 6 of the judgment in the case of Sibbia (supra), as
referred hereinabove.
65. In the year 1969, the Law Commission, for the first
time, in its 41st report, recommended for pre-arrest bail, and in
Paragraph 39.9 of the Report, as quoted hereinabove, the Law
Commission noted the reasons that, "The necessity for granting
anticipatory bail arises mainly because sometimes influential
persons try to implicate their rivals in false cases for the
purpose of disgracing them or for other purposes by getting
them detained in jail for some days." It also refers to the false
cases and the report records, "there seems no justification to
require him 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, the Rule of Harmonious Interpretation of the statute shall
also come into play.
"ARREST" IN SECTION 438 OF THE CODE AND
CUSTODY
66. Section 438 of the Code speaks of anticipatory bail in
a situation when arrest is contemplated. Does the word "arrest"
means "custody" or in other words whether "arrest" and "custody"
are synonymous to each other? In the case of Directorate of
Enforcement 31, the Hon'ble Supreme Court observed 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." In para 46 and 48 of the
judgment, the Hon'ble Supreme Court further observed as follows:-
"46. The word 'arrest' is derived from the French word
'Arreter' meaning "to stop or stay" and signifies a restraint of
the person. Lexicologically, the meaning of the word 'arrest'
31 Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440
is given in various dictionaries depending upon the
circumstances in which the said expression is used. One of
us, (S. Ratnavel Pandian, J. as he then was being the Judge
of the High Court of Madras) in Roshan Beevi v. Joint
Secretary, Government of T.N. [1984 Cri LJ 134 : (1984) 15
ELT 289 : 1983 MLW (Cri) 289 (Mad)] had an occasion to go
into the gamut of the meaning of the word 'arrest' with
reference to various textbooks and dictionaries, the New
Encyclopaedia Britannica, Halsbury's Laws of England, A
Dictionary of Law by L.B. Curzon, Black's Law
Dictionary and Words and Phrases. On the basis of the
meaning given in those textbooks and lexicons, it has been
held that:
"[T]he word 'arrest' when used in its ordinary and natural
sense, means the apprehension or restraint or the
deprivation of one's personal liberty. The question whether
the person is under arrest or not, depends not on the
legality of the arrest, but on whether he has been deprived of
his personal liberty to go where he pleases. When used in
the legal sense in the procedure connected with criminal
offences, an arrest 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, 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,1984 Cri LJ 134 :
(1984) 15 ELT 289 : 1983 MLW (Cri) 289 (Mad)."
67. In the case of State of Haryana 32, the Hon'ble Supreme
Court interpreted the words "arrest" and "custody" and in para 27
observed as follows:-
"27. The interpretation of "arrest" and "custody" rendered by
the Full Bench in Roshan Beevi case [1984 Cri LJ 134
(Mad)] may be relevant in the context of Sections 107 and
108 of the Customs Act where summons in respect of an
enquiry may amount to "custody" but not to "arrest", but
such custody could subsequently materialise into arrest.
The position is different as far as proceedings in the court
are concerned in relation to enquiry into offences under the
Penal Code and other criminal enactments. In the latter set
of cases, in order to obtain the benefit of bail an accused
has to surrender to the custody of the court or the police
authorities before he can be granted the benefit thereunder.
In Vol. 11 of the 4th Edn. of Halsbury's Laws of England the
term "arrest" has been defined in Para 99 in the following
terms:
"99. Meaning of arrest.--Arrest consists in the seizure or
touching of a person's body with a view to his restraint;
words may, however, amount to an arrest if, in the
circumstances of the case, they are calculated to bring,
and do bring, to a person's notice that he is under
compulsion and he thereafter submits to the
compulsion."
32 State of Haryana and others v. Dinesh Kumar, (2008) 3 SCC 222
68. According to Section 438 of the Code, anticipatory bail
may be applied by a person who has reason to believe that he may
be arrested in a non-bailable offence. As observed hereinabove,
and as interpreted in the case of Sibbia (supra), arrest has been
defined under Section 46 of the Code. Who can arrest, it has also
been provided in the Code. The arrest may be made by the police,
by a private person or by a Magistrate.
69. Provisions regarding arrest 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.
70. 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 under Section 438 of
the Code? Now there are two kinds of "arrests" that have come up
for the purpose of present discussion:-
(i) Arrest by the police during investigation.
(ii) Appearance of an accused and his submission to
the custody of the Court, after filing of the chargesheet,
in response to the processes issued by the court. In
such case, in view of the case of Deepak Mahajan
(supra), there is implied arrest before such accused is
taken into custody.
71. In case there is an apprehension of arrest by police, in
such matters, definitely an application for anticipatory bail may be
entertained.
72. The question that falls for consideration is whether the
word "arrest" as finds place under Section 438 of the Code also
includes the (ii) situation, as stated hereinabove. It requires
interpretation of Section 438 of the Code.
73. In cases when an accused appears after issuance of
process by a court on chargesheet, the situation is different. After
filing of chargesheet, cognizance is taken and summons or other
processes are issued. Thereafter, the exercise of taking cognizance
is not a mechanical or routine exercise. The court has to apply its
judicial mind before taking cognizance.
74. In the case of Pepsi Foods Ltd. 33, the Hon'ble Supreme
Court, in Para 28 of the judgment, observed that, "Summoning of
an accused in a criminal case is a serious matter. Criminal law
33 Pepsi Foods Ltd. and Another v. Special Judicial Magistrate, (1998) 5 SCC 749
cannot be set into motion as a matter of course .............. The
order of the Magistrate summoning the accused must reflect
that he has applied his mind to the facts of the case and the
law applicable thereto." Similar view has also been expressed in
the cases of Narsingh Das Tapadia 34, S.K. Sinha, Chief
Enforcement Officer 35, Bhushan Kumar 36 and S.R. Sukumar 37.
75. Taking cognizance ensures that the action thereafter is
taken by a court or Magistrate after examining the material before
him.
76. In the case of State of Bihar37, the Hon'ble Supreme
Court discussed the aspects of mala fide and observed that, "an
information is lodged at the police station and an offence is
registered, the mala fide of the informant would be of
secondary importance if the investigation produces
unimpeachable evidence disclosing the offence."
77. 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
34 Narsingh Das Tapadia v. Goverdhan Das Partani, (2000) 7 SCC 183
35 S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd., (2008) 2
SCC 492
36 Bhushan Kumar and Another v. State (NCT of Delhi), (2012) 5 SCC 424
37 S.R. Sukumar v. S. Sunaad Raghuram, (2015) 9 SCC 609
37 State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554
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 appears for surrender before the court of
Magistrate and he is taken into custody, it precedes with arrest.
That arrest is implied. That is not the arrest in apprehension of
which anticipatory bail application may be filed under Section 438
of the Code.
78. Right to Life and Personal Liberty has to be given much
extended meaning, but, as stated, the "Right to Life and Personal
Liberty" as enshrined under Article 21 of the Constitution is not as
such absolute. A person may be deprived of his Right to Life and
Personal Liberty according to the "procedure established by law."
Chargesheet is filed in the court after completion
of an investigation. After filing of the chargesheet/complaint,
the court examines the matter and while taking cognizance
issues process. An accused appears before the Court in
response to such process. This all is according to the "process
established by law." At this stage, it cannot be said that such
person has been falsely implicated for sending him behind
bars by some influential persons. Taking such person
into custody is not "arrest", as used under Section 438 of
the Code. The meaning of "arrest" cannot be construed to bring
such accused within the provisions of Section 438 of the Code.
79. Therefore, in view of the foregoing discussion, this
Court is of the view that the word "arrest", as finds place under
Section 438 of the Code, does not relate to the situation when after
filing of the chargesheet, an accused appears before the Court in
response to the process issued by the Court.
80. The word "arrest", as used under Section 438 of the
Code is not attracted to the cases when an accused appears and
surrenders before the court after filing of the chargesheet. It means
that post filing of a chargesheet, if an accused is summoned or
required to appear before the court by any process of the Code, in
such a situation, the provisions of Section 438 of the Code shall not
be applicable.
81. There is another aspect of the matter. Anticipatory bail,
as such, is not a total substitute of regular bail. It is another
principle of interpretation that the provision of the statute should
not be read in a manner so as to make some other provision of the
statute redundant. There should be harmonious construction of the
different provisions of the enactment. It is the principle of
harmonious construction.
82. In the case of Managing Director, Chhattisgarh State
Co-Operative Bank Maryadit 38, 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 statute to which it may
properly apply."
Where two provisions conflict, courts may enquire which of
the two provisions is specific in nature and whether it was
intended that the specific provision is carved out from the
application of the general provision. The general provision
operates, save and except in situations covered by the
specific provision. The rationale behind this principle of
statutory construction is that were there appears a conflict
between two provisions, it must be presumed that the
legislature did not intend a conflict and a subject-specific
provision governs those situations in exclusion to the
operation of the general provision."
38 Managing Director, Chhattisgarh State Co-Operative Bank Maryadit v. Zila
Sahkari Kendriya Bank Maryadit, (2020) 6 SCC 411
83. As discussed hereinabove, there are various provisions
of bail in the Code. Sections 437 and 439 of the Code are general
and broad principles. Section 438 of the Code comes into play only
when there is apprehension of arrest in a non-bailable offence.
Now, if the word "arrest" as occurs in Section 438 of the Code is
taken to cover all situations of arrest or all situations under which
an accused may be taken into custody by a court, it may make
various other provisions of the Code redundant and may be a kind
of violence to the provisions of Section 438 of the Code.
84. Suppose an accused is facing trial and he does not
repeatedly appear during trial, his bail is cancelled, sureties are
notified and after hearing them, penalties are imposed and non-
bailable warrants are issued against him. In such a situation, if an
application for anticipatory bail is permitted, it would have an
implied impact on the judicial order passed by the court by which
non-bailable warrants were issued against him.
85. In the case of Bhadresh Bipinbhai Sheth (supra), the
Hon'ble Supreme Court though considered anticipatory bail during
the trial when additional charge was framed, but in that case, the
Hon'ble Supreme Court was not invited to discuss the aspect of
"arrest" as occurs in Section 438 of the Code and the proposition of
law, on "arrest", as laid down by the Hon'ble Supreme Court in the
case of Sibbia (supra).
86. If it is construed that the word "arrest", as used under
Section 438 of the Code may include any arrest or any custody
during trial or during appeal, etc., it may definitely bring it in
conflict with Section 389 of the Code. Section 389 of the Code
makes provisions with regard 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.
87. 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.
88. The word "arrest", as used under Section 438 of the
Code, may not be stretched beyond the purpose, for which it was
enacted, i.e., insurance against police custody. It is arrest by police
during investigation alone, not beyond that. If in the name of
personal liberty, the word "arrest", as used under Section 438 of
the Code, is extended to any arrest, it may again create difficult
situations. For example, if on the date of judgment, one of the
accused does not appear and he is convicted with a sentence, in
that eventuality, the Court would issue a non-bailable warrant for
ensuring his presence, so as to serve out the sentence. Can it be
said that because the convict is apprehending his arrest, he may
file an anticipatory bail application? Can an anticipatory bail
application filed by such convict be entertained? Definitely it cannot
be. Section 438 of the Code has not contemplated such a situation.
89. In the case of Sibbia (supra), the Hon'ble Supreme
Court has held that anticipatory bail can be applied so long as the
applicant has not been arrested (Para 38). This arrest is till
chargesheet is filed, as observed by the Hon'ble Supreme Court in
the case of Sushila Aggarwal (supra).
90. In the case of Mahdoom Bava (supra), the Hon'ble
Supreme Court entertained an anticipatory bail application
observing that, " in some parts of the country, there seems to
be a practice followed by Courts to remand the accused to
custody, the moment they appear in response to the
summoning order." This practice of deferring hearing of bail
application by the courts when an accused appears before them in
response to a summoning order, has been streamlined by the
Hon'ble Supreme Court in the case of Satender Kumar Antil 39. In
the case of Satender Kumar Antil (supra), the Hon'ble Supreme
Court laid down the guidelines for hearing of bail application. In
Para 3, 4 and 5, the Hon'ble Supreme Court observed as
hereunder:-
39 Satender Kumar Antil v. Central Bureau of Investigation, (2021) 10 SCC 773
"3. We are inclined to accept the guidelines and make them
a part of the order of the Court for the benefit of the courts
below. The guidelines are as under:
"Categories/Types of Offences
(A) Offences punishable with imprisonment of 7
years or less not falling in Categories B and D.
(B) Offences punishable with death, imprisonment for
life, or imprisonment for more than 7 years.
(C) Offences punishable under Special Acts
containing 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 to appear physically on the next
date/s of hearing.
(e) Bail applications of such accused on appearance
may be decided without the accused being taken
in physical custody or by granting interim bail till
the bail application is decided.
Category B/D
On appearance of the accused in court pursuant to
process issued bail application to be decided on
merits.
Category C
Same as Categories B and D with the additional
condition of compliance of the provisions of bail
under NDPS (Section 37), Section 45 of the PMLA,
Section 212(6) of the Companies Act, Section 43-D(5)
of the UAPA, POCSO, etc."
"4. Needless to say that the Category A deals with both
police cases and complaint cases."
"5. The trial courts and the High Courts will keep in mind
the aforesaid guidelines while considering bail applications.
The caveat which has been put by the learned ASG is that
where the accused have not cooperated in the investigation
nor appeared before the investigating officers, nor answered
summons when the court feels that judicial custody of the
accused is necessary for the completion of the trial, where
further investigation including a possible recovery is needed,
the aforesaid sapproach cannot give them benefit,
something we agree with."
91. This has been further clarified by the Hon'ble Supreme
Court in the case of Satender Kumar Antil (supra) on 21.03.2023,
when the Hon'ble Supreme Court observed that, "we would like to
clarify that what we have enunciated qua bail would equally
apply to anticipatory bail cases. Anticipatory bail is after all
one of the species of bail." It may be noted that in the case of
Satender Kumar Antil (supra) in category-A cases, when an accused
is not arrested during investigation, if such an accused appears
before the court, he is not to be taken into custody. Which means,
by virtue of the directions of the Hon'ble Supreme Court, an
accused falling in category-A cases, does not apprehend his arrest.
The provisions of Section 438 of the Code come into play when a
person apprehends his arrest in non-bailable cases. It means that
for category-A cases, as classified in the case of Satender Kumar
Antil (supra), an application for anticipatory bail may not at all be
entertained because as stated, such a person is not to be taken into
custody. He cannot be said to be carrying any 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.
92. 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
93. An application for anticipatory bail is not maintainable
after the chargesheet has been filed in the Court.
94. The Reference is answered accordingly.
__________________________
RAVINDRA MAITHANI, J.
Avneet/Ravi Bisht
24.08.2023
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
THE HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI
AND
THE HON'BLE SRI JUSTICE RAVINDRA MAITHANI
Reserved on : 05.07.2023
Delivered on : 24.08.2023
Anticipatory Bail Application No. 76 of 2021
Saubhagya Bhagat ... Applicant
Versus
State of Uttarakhand & Anr. ... Respondents
With
Anticipatory Bail Application No. 34 of 2021
Devansh Khandelwal & Anr. ... Applicants
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 188 of 2021
Praveen Tyagi ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 215 of 2021
Sudhanshu Mehta ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 244 of 2021
Prarthana Asthana ... Applicant
Versus
State of Uttarakhand & Anr. ... Respondents
Anticipatory Bail Application No. 245 of 2021
Prarthana Asthana ... Applicant
Versus
State of Uttarakhand & Anr. ... Respondents
Anticipatory Bail Application No. 256 of 2021
Khimanand Dani ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 259 of 2021
Badri Prasad Arya ... Applicant
Versus
State of Uttarakhand & Anr. ... Respondents
Anticipatory Bail Application No. 261 of 2021
Vikas Kumar Sharma ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 268 of 2021
Deepak Kumar Rao ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 29 of 2022
Yogesh Kumar Gautam ... Applicant
Versus
State of Uttarakhand & Anr. ... Respondents
Anticipatory Bail Application No. 63 of 2022
Rahul Kumar Yadav ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 101 of 2022
Piyush Baliyan & Anr. ... Applicants
Versus
State of Uttarakhand & Others ... Respondents
Anticipatory Bail Application No. 150 of 2022
Lal Bahadur Kushwaha ... Applicant
Versus
State of Uttarakhand & Others ... Respondents
Anticipatory Bail Application No. 156 of 2022
Reshma ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 159 of 2022
Bhaguli Devi ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 161 of 2022
Naseem & Anr. ... Applicants
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 189 of 2022
Furkan ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 195 of 2022
Pranav Obrai & Others ... Applicants
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 198 of 2022
Neeraj Kumar Loshali ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 213 of 2022
Nayima ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 219 of 2022
Ranjeet Kaur alias Geeta ... Applicant
Versus
State of Uttarakhand & Anr. ...Respondents
Anticipatory Bail Application No. 253 of 2022
Raja Bhatt & Others ... Applicants
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 254 of 2022
Shadab ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 256 of 2022
Kamlesh Singh Chauhan ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 281 of 2022
Neeraj Kumar ... Applicant
Versus
State of Uttarakhand & Others ... Respondents
Anticipatory Bail Application No. 288 of 2022
Amit Kumar Singh ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 304 of 2022
Shubham Kumar ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 310 of 2022
Sandeep Singh Kandari & Anr. ...Applicants
Versus
State of Uttarakhand & Others ... Respondents
Anticipatory Bail Application No. 329 of 2022
Sayyaz ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 348 of 2022
Danish Raza ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 26 of 2023
Kiran Rana ... Applicant
Versus
State of Uttarakhand & Anr. ... Respondents
Anticipatory Bail Application No. 164 of 2023
Deshraj Saini ... Applicant
Versus
State of Uttarakhand ... Respondent
Anticipatory Bail Application No. 176 of 2023
Sanjay Bhalla ... Applicant
Versus
State of Uttarakhand ... Respondent
Presence:-
Mr. Girish Chandra Lakchaura and Mr. Dushyant Mainali, learned
counsels for the applicant in ABA No. 76 of 2021.
Mr. Arvind Vashistha, learned Senior Counsel assisted by Ms. Disha
Vashistha and Mr. Hemant Singh Mahar, learned counsels for the
applicant in ABA No. 63 of 2022.
Mr. Alok Kumar, learned counsel for the applicants in ABA No. 101 of
2022.
Mr. Amit Kapri, learned counsel for the applicant in ABA No. 150 of
2022.
Mr. Ganesh Kandpal, learned counsel for the applicant in ABA No.
198 of 2022.
Mr. Bhuwnesh Joshi, learned counsel for the applicant in ABA No.
213 of 2022.
Mr. Tajhar Qayyum, learned counsel for the applicant in ABA No. 281
of 2022.
Mr. C.K. Sharma, learned counsel for the applicant in ABA No. 26 of
2023.
Mr. J.S. Virk, learned Deputy Advocate General, Mr. Rakesh Kumar
Joshi and Mr. Pankaj Joshi, learned Brief Holders for the State of
Uttarakhand.
Ms. Prabha Naithani, learned counsel for the complainant in ABA No.
215 of 2021.
Mr. B.D. Jha, Ms. Preeti Jha and Ms. Priyanka Jha, learned counsels
for the complainant in ABA No. 198 of 2022.
The Court made the following:
JUDGMENT: (per Hon'ble The Chief Justice Sri Vipin Sanghi)
I have perused the opinions prepared by my
brothers Manoj Kumar Tiwari, J., and Ravindra Maithani, J.
2) 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.
3) 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
person, guaranteed under Article 21 of the Constitution of
India, and it is one of the most precious and cherished
rights. The said right to life and personal liberty cannot be
curtained, or deprived, except without following the due
process of law.
4) Section 438 of the Code of Criminal Procedure,
which deals with what is popularly known as "anticipatory
bail", seeks to prevent the apprehended infraction of this
right to life and personal liberty of a person, by providing
that where any person has reason to believe that he may
be arrested on accusation of having committed a non-
bailable offence, he may apply to the High Court, or to the
Court of Session, for a direction under the said provision
and the Court may, if it thinks fit, direct that in the event
of such an arrest, he shall be released on bail.
5) In Gurbaksh Singh Sibba and others Vs
State of Punjab, (1980) 2 SCC 565, the Supreme Court
considered the issue - whether the operation of an order
passed under Section 438(1) of the Code should be limited
in point of time. While recognizing the power of the Court
to limit the operation of such an order to a shorter period,
for reasons to be recorded, the Supreme Court observed
that the normal rule should be not to limit the operation of
the order in relation to a period of time.
6) In Sushila Aggarwal and others Vs State
(NCT of Delhi) and another, (2020) 5 SCC 1, the same
view has been taken by the Supreme Court, as noticed by
both my learned brothers.
7) Brother Maithani, J. has also noticed several
judgments of the Supreme Court, in his opinion, wherein
the Supreme Court considered the anticipatory bail
applications moved, despite the charge-sheet having been
filed. These cases are the following:
1. Bharat Chaudhary Vs State of Bihar, (2003) 8
SCC 77
2. Ravindra Saxena Vs State of Rajasthan, (2010)
1 SCC 684
3. Vinod Kumar Sharma Vs State of Uttar Pradesh,
2021 SCC Online SC 3225
4. Bhadresh Bipinbhai Sheth Vs State of Gajarat,
(2016) 1 SCC 152
5. Mahdoom Bava Vs Central Bureau of
Investigation, 2023 SCC Online SC 299?
8) The Law Commission in its 41st report, while
recommending pre-arrest bail, observed that - their seems
to be no justification to require the accused to first submit
to custody, remain in prison for some days, and then apply
for bail.
9) In Mahdoom Bava, the Supreme Court took
notice of the practice being followed by the Courts in some
parts of the country, to remand an accused to custody, the
moment he appeared in response to the summoning order.
10) I agree with the view of my brother Manoj
Kumar Tiwari, J. that the legislation has not imposed any
restriction as regards the stage upto which an application
for anticipatory bail can be entertained.
11) That being the position, an interpretation of
Section 438 Cr.P.C. which curtails the remedy available to
an accused - to preserve his right to life and personal
liberty, should be eschewed.
12) For the aforesaid reasons, I completely agree
with the view taken by my brother Manoj Kumar Tiwari, J.
________________
VIPIN SANGHI, C.J.
Dt: 24TH AUGUST, 2023
Negi
