Courts Should Grant Protection From Arrest Only In Exceptional Circumstances While Rejecting Anticipatory Bail Under S. 438 CrPC: SC


It must be acknowledged that in a significant development with far reaching consequences, the Supreme Court has as recently as on May 28, 2021 ruled explicitly, elegantly and effectively in a learned, laudable and landmark judgment titled Nathu Singh vs State of Uttar Pradesh & Ors. in Criminality Appeal No. 522 of 2021 (Arising out of Special Leave Petition (Crl.) No. 2096 of 2021) and Criminal Appeal No. 523 of 2021 (Arising out of Special Leave Petition (Crl.) 2271of 2021) that though Section 438 of Code of Criminal Procedure on  grant of anticipatory bail by High Court or Sessions Court should be read liberally, courts should not normally grant protection from arrest limited to a particular time period in cases where no ground for anticipatory bail is made out. It must be mentioned here that a three Judge Bench headed by Chief Justice NV Ramana noted that courts are granting protection from arrest to accused for a long period like 90 days though no case for anticipatory bail is made out. It was made clear that such a power can be used only in exceptional circumstances. It was also clarified that such discretionary power cannot be exercised in an untrammelled manner. The three Judge Bench of the Apex Court thus set aside two orders passed by the Allahabad High Court, which had while dismissing the anticipatory bail application of the respondents-accused still amazingly granted them 90 days to surrender before the trial court to seek regular bail.
To start with, this notable judgment authored by CJI NV Ramana for himself, Justice Surya Kant and Justice Aniruddha Bose sets the ball rolling by first and foremost pointing out in para 2 that, “The present Criminal Appeals, by way of Special Leave, raise common question of law and are therefore being disposed of together.”
To put things in perspective, the Bench then puts forth in para 3 that, “In both the impugned orders, the High Court of Judicature at Allahabad, while dismissing the anticipatory bail application of the respondents-accused, granted them 90 days to surrender before the Trial Court to seek regular bail and granted them protection from coercive action for the said period. Aggrieved by the grant of such relief, the complainants on both the matters are currently in appeal before us.”
To set the record straight, the Bench then envisages in para 4 that, “As only a question of law is being raised, it is not necessary for this Court to advert to the facts of both the matters extensively. It is sufficient to point out that in the first case, pertaining to Nathu Singh, the appellant’s daughter was married to respondent no. 2 in that case on 14.02.2014. As she died under suspicious circumstances in her matrimonial home on 02.01.2021, the complainant registered FIR No. 07/2021 at police station Masuri, Ghaziabad under Sections 304B and 498A, IPC read with Sections 3 and 4 of the Dowry Prohibition Act against the respondents nos. 2 to 5.”
Furthermore, the Bench then discloses in para 5 that, “In the second case, the allegations are that the appellant’s brother and the latter’s two sons were attacked by the respondents in that case, due to a dispute between the parties relating to encroachment of land. The two sons were attacked on their vital parts, with one of them suffering a skull fracture as a result of which he was in coma for one week. The other had lacerations on his head. The complainant registered FIR No. 371/20 at police station Thana Bhawan, Shamili under Sections 307, 504 and 34, IPC.”
As it turned out, the Bench then reveals in para 6 that, “The respondents in both the cases approached the High Court under Section 438, Cr.P.C., during ongoing investigation, and sought protection from arrest. Vide the impugned orders dated 08.02.2021 and 28.01.2021, the High Court dismissed the applications of the respondents but granted them the aforementioned relief in identically worded orders. The relevant portion of the order, as extracted from the impugned order dated 08.02.2021, is as. follows:
“…. Having heard learned counsel for the parties and upon perusal of material brought on record as well as complicity of. accused and also judgement of the Apex Court in the case of P. Chidambaram v. Directorate of Enforcement, AIR 2019 SC 4198, this Court does not find any exceptional ground to exercise its discretionary jurisdiction under Section 438 Cr.P.C.
However, in view of the entirety of facts and circumstances of the case and on the request of learned counsel for the applicants, it is directed that in case the applicants appear and surrender before the court below within 90 days from today and apply for bail, their prayer for bail shall be considered and decided as per the settled law laid by this Court in the case of Amrawati and another v. State of U.P. reported in 2004 (57) ALR 390 as well as judgement passed by Hon:ble Apex Court in the case of Lal Kamlendra Pratap Singh v. State of U.P. reported in 2009 (3) ADJ 322 (SC). Till then, no coercive action shall be taken against the applicants…..””
Needless to say, the Bench then mentions in para 7 that, “Aggrieved by the impugned orders, the complainants-appellants have filed the present appeals by way of special leave.”
Without mincing any words, the Bench then remarks in para 11 that, “The sole question to be answered by the Court in the present appeals relates to whether the High Court, while dismissing the anticipatory bail applications of the respondents, could have granted them protection from arrest.”
As we see, the Bench then makes it a point to mention in para 12 that, “The considerations on the basis of which the Court is to exercise its discretion to grant relief under Section 438, Cr.P.C. have been decided by this Court in a catena of judgments and needs no restatement.”
While citing a recent, relevant and remarkable case law, the Bench then waxes eloquent to point out in para 13 that, “A recent Constitution Bench judgment of this Court, in Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1 has clarified the extent of power exercisable by Courts under Section 438 CrPC. The Court ultimately held as follows:
“91.1. Regarding Question 1, this Court holds that the protection granted to a person under Section 438 CrPC should not invariably be limited to a fixed period; it should enure in favour of the accused without any restriction on time. Normal conditions under Section  437(3) read with Section 438(2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event). etc.

91.2. As regards the second question referred to this Court, it is held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.””
To be sure, the Bench then makes  It clear in para 14 that, “The Constitution Bench in Sushila Aggarwal (supra) has authoritatively held that when a Court grants anticipatory bail under Section 438, Cr.P.C., the same is ordinarily not limited to a fixed period and would subsist till the end of the trial. However, it was clarified by the Court that if the facts and circumstances so warranted, the Court could impose special conditions, including limiting the relief to a certain period.”
Quite ostensibly, the Bench then hastens to add in para 15 that, “It is therefore clear that a Court, be it a Sessions Court or a High Court, in certain special facts and circumstances may decide to grant anticipatory bail for a limited period of time. The Court must indicate it’s reasons for doing so, which would be assailable before a superior Court. To do so without giving reasons, would be contrary to the pronouncement of this Court in Sushila Aggarwal (supra). If the High Court had therefore decided to allow the anticipatory bail application of the respondents-accused herein, albeit for a limited period of 90 days, the task before this Court would have been somewhat easier. We would only have had to assess the reasons assigned
by the Court, if any, for the imposition of such special condition in terms of the judgment in Sushila Aggarwal (supra).”
Adding more to it, the Bench then observes in para 16 that, “However, in the present appeals, the High Court, after considering the facts and circumstances of the case, particularly the gravity and severity of the accusations against the respondents, rejected the application of the respondents-accused. It is after rejecting the application that the High Court chose fit to grant some relief to the respondents while directing them to surrender before the Trial  Court to file a regular bail application within 90 days, by protecting them from any coercive action during that period. The appellants-complainants are aggrieved by the same and are challenging the power of the Court to pass such a protective order after the dismissal of the anticipatory bail application.”
To say the least, the Bench then underscored in para 18 that, “The focus of Section 438, Cr.P.C., when read in its entirety, clearly relates to the grant of anticipatory bail by the Court. Section 438(1) explicitly lays down certain factors that need to be considered by the Court before granting the relief sought. Section 438(2) lays down the conditions that may be imposed by the Court while granting the relief. Se tion 438(3) dictates the consequences of the grant of relief under the Section.”
Of course, the Bench then states unequivocally in para 19 that, The only guidance relating to what is to take place once an application under Section 438, Cr.P.C. is rejected is found in the proviso to Section 438(1), Cr.P.C., which specifically provides that once an application is rejected, or the Court seized with the matter refuses to issue an interim order, it is open to the police to arrest the applicant. It is this proviso that the present appellants have relied upon to argue that the High Court, once it rejected the anticipatory bail applications of the respondents-accused, did not have the power to grant any further relief.”
Be it noted, the Bench then observes in para 20 that, “At first blush, while this submission appears to be attractive, we are of the opinion that such an analysis of the provision is incomplete. It is no longer res Integra that any interpretation of the provisions of Section 438, Cr.P.C. has a direct bearing on the fundamental right to life and liberty of an individual. The genesis of this jurisdiction lies in Article 21 of the Constitution, as an effective medium to protect the life and liberty of an individual. The provision therefore needs to be read liberally, and considering its beneficial nature, the Courts must not read in limitations or restrictions that the legislature have not explicitly provided for. Any ambiguity in the language must be resolved in favour of the applicant seeking relief. In this context, this Court, in the Constitution Bench decision of this Court in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, which was recently upheld and followed by this Court in Sushila Aggarwal (supra), held as follows:
“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, BBC of th hee 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 constitútionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficient provision contained in Section 438 must be saved, not jettisoned..,.,””
For the sake of clarity, the Bench then enunciates in para 21 that, “When the proviso to Section 438(1), Cr.P.C. is analyzed in line with the above dictum, it is clear that the proviso does not create any rights or restrictions. Rather, the sole purpose of the proviso appears to be clarificatory in nature. It only restated, inter alia, the obvious proposition that unless an individual has obtained some protection from the Court, the police may arrest them. In line with the ruling in Gurbaksh Singh Sibbia (supra), the proviso cannot be read as constituting a bar on the power of the Court.”
Practically speaking, the Bench then candidly concedes in para 24 that, “We cannot be oblivious to the circumstances that Courts are faced with day in and day out, while dealing with anticipatory bail applications. Even when the Court is not inclined to grant anticipatory bail to an accused, there may be circumstances where the High Court is of the opinion that it is necessary to protect the person apprehending arrest for some time, due to exceptional circumstances, until they surrender before the Trial Court. For example, the applicant may plead protection for some time as he/she is the primary caregiver or breadwinner of his/her family members, and needs to make arrangements for them. In such extraordinary circumstances, when a strict case for grant of anticipatory bail is not made out, and rather the investigating authority has made out a case for custodial investigation, it cannot be stated that the High Court has no power to ensure justice. It needs no mentioning, but this Court may also exercise its powers under Article 142 of the Constitution to pass such an order.”
While striking a note of caution, the Bench then observes in para 25 that, “However, such discretionary power cannot be exercised in an untrammelled manner. The Court must take into account the statutory scheme under Section 438, Cr.P.C., particularly, the proviso to Section 438(1), Cr.P.C, and balance the concerns of the investigating agency, complainant and the soçiety at large with the concerns/interest of the applicant. Therefore, such an order must necessarily be narrowly tailored to protect the interests of the applicant while taking into consideration the concerns of the investigating authority. Such an order must be a reasoned one.”
Most strikingly, the Bench then mines just no words to hold in para 26 that, “The impugned orders passed by the High Court, in the present appeals, do not meet any of the standards as laid out above. We say so for the following reasons: firstly, after the dismissal of the anticipatory bail application, on the basis of the nature and gravity of the offence, the High Court has granted the impugned relief to the respondents without assigning any reasons. Secondly, in granting the relief for a period of 90 days, the Court has seemingly not considered the concerns of the investigating agency, complainant or the proviso under Section 438(1), Cr.P.C., which necessitates that the Court pass such an exceptional discretionary protection order for the shortest duration that is reasonably required. A period of 90 days, or three months, cannot in any way be considered to be a reasonable one in the present facts and circumstances.”
As a corollary, the Bench then holds in para 27 that, “The impugned orders therefore do not withstand legal scrutiny. The resultant effect of the High Court’s orders is that neither are the respondents found entitled to pre-arrest bail, nor can they be arrested for a long duration. During the said duration they can roam freely without being apprehensive of coercive action. We are thus of the view that the High Court committed a grave error in passing such protection to the respondents-accused. Such a direction by the High Court exceeds its judicial discretion and amounts to judicial largesse, which the Courts do not possess.”
Finally, the Bench then holds in the last relevant para 28 that, “For the aforestated reasons, the present appeals are allowed. The impugned order of the High Court dated 08.02.2021 in Criminal Miscellaneous Anticipatory Bail Application No. 2219 of 2021, and order dated 28.01.2021 in Criminal Miscellaneous Anticipatory Bail Application No. 1700 of 2021, to the extent of granting protection for 90 days to the respondents-accused are set aside, leaving it open to the Investigating Agency to proceed in the matters in accordance with law and complete the investigation. If the respondents-accused have been meanwhile sent to judicial custody, their application (s) for regular bail or any request for their police remand made by the Investigating Officer shall be decided by the competent Court, uninfluenced by the observations made hereinabove.”
In a nutshell, this learned judgment makes it amply clear that the High Courts can grant protection to accused while dismissing anticipatory bail plea in exceptional circumstances. The three Judge Bench of the Apex Court headed by CJI NV Ramana also observed most appropriately that such orders should explain the reasons for issuing such protection. When reasons are also provided, it ensures that the judgment is not arbitrary, whimsical or partial as the Judge then is fully answerable for the reasons cited by him/her in writing! So it is a very good judgment which shall certainly serve to make our Judges more accountable!
Sanjeev Sirohi

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