2023 (8) TMI 1441 - HC - Indian Laws

Maintainability of an application for anticipatory bail after charge sheet has been filed in the Court - question placed for consideration by this Larger Bench. As per Manoj Kumar Tiwari J. - An application seeking anticipatory bail would be maintainable even after filing of charge sheet in the Court. As per Ravindra Maithani J - An application for anticipatory bail is not maintainable after the chargesheet has been filed in the court. As per VIPIN SANGHI C.J. HELD THAT - 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 agreed upon - 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. 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. In GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB 1980 (4) TMI 295 - SUPREME COURT 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. 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. The view of Manoj Kumar Tiwari J. agreed upon that the legislation has not imposed any restriction as regards the stage upto which an application for anticipatory bail can be entertained. 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.

Summary

Issues Involved:
1. Whether an application for anticipatory bail is maintainable after the charge sheet has been filed in the Court?

Summary:

Issue 1: Maintainability of Anticipatory Bail Post Charge Sheet Filing

The core question addressed by the Larger Bench was whether an application for anticipatory bail is maintainable after the charge sheet has been filed in the Court. This question was initially referred to a Larger Bench by a learned Single Judge, which was subsequently answered affirmatively by a Division Bench. However, the Single Judge raised concerns that the issues in the order of reference were not fully considered, leading to a further referral to the Full Bench.

Arguments for Maintainability: Learned Counsel for the applicants argued that the legislature has not imposed any restriction regarding the stage at which an application for anticipatory bail could be entertained. They cited the Constitution Bench judgments in Gurbaksh Singh Sibbia and Sushila Aggarwal, asserting that these judgments do not limit the maintainability of anticipatory bail applications to the pre-charge sheet stage.

Arguments against Maintainability: The State Counsel contended that anticipatory bail is meant to protect a person from arrest by the police. Once the charge sheet is filed, the remedy of anticipatory bail should not be available, and the accused should seek bail under Section 437 CrPC instead.

Legal Precedents and Principles: The judgment discussed various precedents, including the principles laid down in Gurbaksh Singh Sibbia, which emphasized that anticipatory bail can be granted as long as the applicant has not been arrested. The Constitution Bench in Sushila Aggarwal reiterated that anticipatory bail could be sought at different stages, including after the investigation is concluded. The judgment also referenced other cases where the Supreme Court entertained anticipatory bail applications post charge sheet filing, such as Bharat Chaudhary v. State of Bihar and Ravindra Saxena v. State of Rajasthan.

Conclusion by Manoj Kumar Tiwari, J.: The judgment concluded that anticipatory bail applications are maintainable even after the charge sheet is filed. This interpretation aligns with the legislative intent of Section 438 CrPC, which aims to protect personal liberty. The judgment emphasized that the language of Section 438 does not impose any such restriction, and adding such a restriction would be against the purpose of the provision.

Separate Opinion by Ravindra Maithani, J.: Ravindra Maithani, J., dissented, arguing that the term "arrest" in Section 438 CrPC should not include situations where an accused appears before the Court post charge sheet filing. He opined that anticipatory bail should not be applicable after the charge sheet is filed, as the judicial process ensures that the accused is not taken into custody arbitrarily.

Agreement by Vipin Sanghi, C.J.: Vipin Sanghi, C.J., agreed with Manoj Kumar Tiwari, J., highlighting the importance of the right to life and personal liberty under Article 21 of the Constitution. He emphasized that the legislation does not restrict the stage at which anticipatory bail can be sought, and any interpretation curtailing this remedy should be avoided.

Final Decision: The reference was answered affirmatively, concluding that an application for anticipatory bail is maintainable even after the charge sheet has been filed in the Court. The anticipatory bail applications were directed to be placed before the appropriate Bench for further orders.