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2018 (11) TMI 1708 - HC - Indian LawsAnticipatory Bail - cognizable non- bailable offence - Whether, in the given facts, this court needs to refer to the order of Hon'ble Delhi High Court rejecting the anticipatory bail application, while considering regular bail application of the accused? HELD THAT - While considering the regular bail application of the accused under Section 437(1) Cr PC, the factum of the rejection or acceptance of the anticipatory bail application, by itself, is not germane. However, the factors which weighed with the court while either rejecting or granting anticipatory bail to the accused, or such of them - as are relevant post the filing of the charge sheet, may be looked at by the Court while dealing with the bail application of the accused under Section 437(1) Cr PC. Since the court is seized of the final report/ charge sheet while dealing with the bail application under Section 437 (1) Cr PC, it would be in a position to make a better assessment and it should not get influenced by the conclusions drawn by the court while - either accepting, or rejecting the anticipatory bail of the accused. Whether this court needs to delve upon the reasons of non- arrest given by investigating agency after rejection of anticipatory bail of the accused by the Hon'ble High Court? - HELD THAT - When the charge sheet is filed before the Court/ Magistrate without arresting the accused, despite the rejection of his anticipatory bail application by the High Court, it is not open to the court to examine whether the exercise of discretion by the Investigating Officer (IO) - not to arrest the accused despite rejection of his anticipatory bail application by this Court, has been properly exercised. The Magistrate/ Court is only concerned with the final report/ charge sheet, as filed. Whether the effect of anticipatory bail application, be it allowed or rejected, stands ceased with the filing of charge-sheet so as to consider the regular bail application without looking into the anticipatory bail application filed during investigation? - Difference of opinion - HELD THAT - Due to difference of opinion the following questions for consideration by a larger bench of the Supreme Court, so that they are authoritatively settled in clear and unambiguous terms Whether the protection granted to a person Under Section 438 Code of Criminal Procedure should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail - and Whether the life of an anticipatory bail should end at the time and stage when the Accused is summoned by the Court? Whether this court can release the accused on bail charge sheeted without arrest under section 376 IPC or any other offence punishable with imprisonment of life or death in view of bar under section 437(1)(i) sic 437(i) Cr. P.C.? - HELD THAT - The accused, who is charge sheeted without arrest under Section 376 IPC or any other offence punishable with imprisonment for life or death, may be released on bail under Section 437(1) Cr PC, provided i) There are no reasonable grounds for the Court to believe that the accused has been guilty of the offence punishable with death or imprisonment for life, or; ii) the accused is under the age of 16 years or a woman or a sick or infirm. The existence of the aforesaid circumstances merely enables the Court to consider the application for grant of bail under Section 437(1) Cr PC. However, the considerations which go into the making of the decision whether to grant bail or not, are those that we have exhaustively considered and set out herein above. Thus, it would depend on the circumstances of the individual case, whether or not the accused should be released on bail by the Court under Section 437(1) Cr PC.
Issues Involved:
1. Consideration of High Court's order rejecting anticipatory bail while deciding regular bail. 2. Examination of reasons for non-arrest by the investigating agency post-rejection of anticipatory bail. 3. Effect of anticipatory bail application on regular bail application post-charge sheet filing. 4. Court's authority to delve into reasons for non-arrest considering the gravity of the offense. 5. Release of accused on bail charge sheeted without arrest under Section 376 IPC or offenses punishable with life imprisonment or death. Issue-wise Detailed Analysis: Issue 1: Consideration of High Court's Order Rejecting Anticipatory Bail The court held that while considering a regular bail application under Section 437(1) CrPC, the fact of rejection or acceptance of anticipatory bail is not germane by itself. However, the factors that influenced the court's decision on the anticipatory bail application, if relevant post-charge sheet filing, may be considered. The court emphasized that it should make an independent assessment based on the final report/charge sheet and not be influenced by prior anticipatory bail decisions. Issue 2: Examination of Reasons for Non-Arrest by Investigating Agency The court reaffirmed that it is not within the magistrate's purview to examine the discretion exercised by the Investigating Officer (IO) in not arresting the accused despite the rejection of anticipatory bail. The magistrate should focus on the charge sheet as filed. This principle was established in "Court on its Own Motion (2)" where the court noted that the investigating agency is not obliged to arrest the accused whenever a cognizable offense is registered, and the discretion lies with the IO. Issue 3: Effect of Anticipatory Bail Application on Regular Bail Application Post-Charge Sheet Filing The court acknowledged the conflicting views in various Supreme Court judgments regarding the duration of anticipatory bail. While some judgments suggest that anticipatory bail should continue till trial, others propose that it should be of limited duration. The Supreme Court has referred this issue to a larger bench in "Sushila Aggarwal v. State (NCT of Delhi)" for authoritative resolution. Therefore, the court refrained from delving into this question. Issue 4: Court's Authority to Delve into Reasons for Non-Arrest Considering the Gravity of the Offense This issue was deemed a paraphrasing of Issue 2. The court reiterated that the magistrate should not delve into the reasons for non-arrest by the IO and should focus on the charge sheet as filed. The answer to this question is covered by the court's decision in "Court on its Own Motion (2)." Issue 5: Release of Accused on Bail Charge Sheeted Without Arrest Under Section 376 IPC The court held that an accused charge sheeted without arrest for offenses under Section 376 IPC or any other offense punishable with life imprisonment or death may be released on bail under Section 437(1) CrPC if: - There are no reasonable grounds to believe that the accused is guilty of the offense, or; - The accused is under 16 years of age, a woman, or sick or infirm. The court emphasized that the decision to grant bail should consider various factors, including the nature and gravity of the offense, the accused's conduct, and the likelihood of the accused fleeing or tampering with evidence. The reference was answered in these terms, highlighting that the decision to grant bail depends on the individual case's circumstances.
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