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TMI Blog2018 (11) TMI 1708X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en charge sheeted under section 406/420/120B IPC without arrest, vide charge sheet/ final report filed on 23.08.2017. Cognizance of the offence was taken by the learned Magistrate on 30.08.2017 qua all the accused, including Nitin Kumar Aggarwal. Once summoned, the accused moved the application to seek bail under Section 437 Cr P.C. The learned CMM was dealing with that application moved by the said accused for release on regular bail under Section 437 Cr.P.C. 3. That aforesaid application for bail was opposed by the complainant. The complainant moved an application for issuance of non bailable warrants, and for a direction to the Investigating Officer (IO) to arrest the accused Nitin Kumar Aggarwal. The court called for a report from the IO, who filed the report dated 21.12.2017. The said report disclosed that two other accused in the case were arrested, but were later released on bail by the court. So far as Nitin Kumar Aggarwal is concerned, he moved an application to seek anticipatory bail under section 438 Cr PC. Vide order dated 04.12.2014, he was granted interim protection against coercive action. By the subsequent order dated 03.07.2015, the said interim order was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the reasons of non- arrest given by investigating agency after rejection of anticipatory bail of the accused by the Hon'ble High Court? C) 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? D) Whether while deciding the bail application of the accused charge-sheeted without arrest, the court can delve into the reasons of non-arrest of the accused, considering the gravity of offence? 8. An additional question of law has been referred to this Court on the ground that the same arises in two other cases pending before the same court, wherein the accused were charge sheeted under section 376 IPC without being arrested. The learned CMM, after making reference of the said two other cases, observed as follows: In the aforesaid two matters pending before this court, the accused persons have been charge sheeted without arrest. After taking cognizance, summons has been issued to the accused persons. On appearance, this court is bound to follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d unprotected against his arrest, but it does not visit the accused with the inevitable consequence of his being taken into custody by the police. The Supreme Court in M.C. Abraham and Ors. v. State of Maharshtra and Ors, (2003)2SCC649 was dealing with a challenge to orders passed by the Nagpur Bench of the High Court of Bombay whereby the High Court, inter alia, directed the State to cause the arrest of the accused and to produce them before the Court. This direction came in a petition raising a grievance that investigation had not made progress on the complaint filed by the Provident Fund Commissioner against the accused, on account of their influence and clout. The Supreme Court set aside the direction issued by the High Court. The Supreme Court observed: 14.......In the first place, arrest of an accused is a part of the investigation and is within the discretion of the investigating officer. Section 41 of the Code of Criminal Procedure provides for arrest by a police officer without an order from a Magistrate and without a warrant. The section gives discretion to the police officer who may, without an order from a Magistrate and even without a warrant, arrest any pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be rejected and ultimately, after investigation, the said person may not be put up for trial as no material is disclosed against him in the course of investigation. The High Court proceeded on the assumption that since petitions for anticipatory bail had been rejected, there was no option open for the State but to arrest those persons. This assumption, to our mind, is erroneous. A person whose petition for grant of anticipatory bail has been rejected may or may not be arrested by the investigating officer depending upon the facts and circumstances of the case, nature of the offence, the background of the accused, the facts disclosed in the course of investigation and other relevant considerations. (emphasis supplied) 13. Thus, as noticed above, the mere rejection of the Anticipatory Bail Application of the accused is no ground to arrest the accused. Considerations for arrest during investigation of the cognizable non- bailable offence by the police are set out in Section 41 of the Cr.P.C. Mere rejection of the Anticipatory Bail Application is not one of them. 14. What follows from the above discussion is that it is not essential that in every case involving a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing articles or weapon of offence or for eliciting some information 16. The learned Single Judge proceeded to issue certain directions to criminal courts. Direction number (v) reads as follows: (v) The Court shall on appearance of an accused in non- bailable offence who has neither been arrested by the police/Investigating agency during investigation nor produced in custody as envisaged in Section 170 Cr.P.C. call upon the accused to move a bail application if the accused does not move it on his own and release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because chargesheet has been filed is against the basic principles governing grant or refusal of bail. 17. This decision of the learned Single Judge was relied upon by the Division Bench while answering the reference in Court on its Own Motion (2) (supra). 18. To answer the reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub- section (1), the Court may impose any condition which the Court considers necessary- (a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c) otherwise in the interests of justice. (4) An officer or a Court releasing any person on bail under sub- section (1) or sub- section (2), shall record in writing his or its1 reasons or special seasons] for so doing. (5) Any Court which has released a person on bail under sub- section (1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. (6) If, in any case triable by a Magistrate, the trial of a person accused of any non- bailable offence is not concluded within a period of sixty days from the first date fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the circumstances set out in the first two proviso of section 437(1) Cr PC are made out. He would be taken into judicial custody, even though, he may not have been arrested or detained by the officer in charge of the police station and he may appear on his own, or may be brought before the Court in response to summons issued to him upon taking of cognizance of the case by the Magistrate. The remedy of such an accused would be to move an application to seek bail under Section 439 Cr P.C. to the Court of Sessions, or to the High Court (which is not the Court under Section 437(1)). Once moved, that application would be considered by the Court of Sessions, or the High Court - as the case may be, by application of the principles for grant/ refusal of bail taken note of hereinafter. 21. Similarly, clause (ii) of Section 437 (1) relates to situations where the accused is a previous convict for an offence punishable with imprisonment for life, or imprisonment for seven years or more. It also relates to cases where the accused has been repeatedly convicted on two or more occasions for commission of cognizable offences punishable with imprisonment for three years or more, but l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt may place in him to turn up to take justice at the hands of the Court. His age, circumstances and social milieu were also considered by the Court while granting him bail, subject to conditions. 27. We may also notice the exhaustive judgment of the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation (2012) 1SCC 40. In this decision the Supreme Court was dealing with a situation where the accused had been denied bail by the High Court under Section 439 Cr.P.C. The Supreme Court observed: 25. The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the most important: the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted. In the present case, the charge is that of wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death. 7. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. 8. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the court to be freed for the time being. 9. Thus the legal principles and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record-- particularly a record which suggests that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able factors, cannot be exhaustively set out. (emphasis supplied) 30. The Supreme Court also considered Babu Singh v. State of U.P. [(1978) 1 SCC 579 : 1978 SCC (Cri) 133]. In Babu Singh (supra), the Supreme Court, inter alia, opined: 17. The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bifocal interests of justice--to the individual involved and society affected. 18. We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. (emphasis supplied) 34. The Supreme Court also noticed its earlier judgment in State of U.P. v. Amarmani Tripathi, [(2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2)], wherein it held: 18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhativ. NCT, Delhi [(2001) 4 SCC 280 : 2001 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court to grant or refuse bail is a discretionary power and the exercise of the said discretion is circumscribed by germane and relevant considerations. The discretion has to be exercised with care and caution by balancing the valuable right of the individual, and the interest of the society in general. (ii) The basic rule in respect of an accused in a cognizable, non-bailable offence, and an under-trial is to grant him bail. The option to commit him to jail is the exception. This is because refusal of bail is a restriction on the personal liberty of the individual, which is guaranteed under Article 21 of the Constitution and, therefore, the personal liberty of the accused/under trial should not be curbed lightly. (iii) Pre-conviction incarceration of the accused/ under trial is a preventive measure, and not a punitive one. Denial of bail in an otherwise deserving case to the accused/ under trial cannot be actuated with the desire to punish the accused/ under trial. (iv) The option of denying bail, and subjecting the accused/ under trial to incarceration would be resorted to by the Court where there are apprehensions that the accused/ under trial may: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from justice; the likelihood of the accused repeating the offence; the likelihood of the accused jeopardizing his own life being faced with a grim prospect of possible conviction in the case; the likelihood of the accused tampering with evidence or influencing witnesses; the history of the case as well as of its investigation, and other relevant grounds which cannot be exhaustively set out. 36. In the light of the aforesaid discussion, we proceed to answer the first question of law referred for our consideration, i.e.: A) 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? 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the investigating agency by applying the principles laid down in the Code itself. 9. The aforesaid position has been reiterated by this Court in Udit Raj Poonia v. State (Govt. of NCT of Delhi), MANU/DE/0371/2017 : 238 (2017) DLT 212; as also in Rajesh Dua v. State, Bail Application No. 778/2017 decided on 9.8.2017. Thus, the Metropolitan Magistrate cannot examine whether the discretion of the IO to arrest, or not to arrest the accused, has been properly exercised. He is only concerned with the chargesheet, as filed. He may return the charge-sheet if he finds that the investigation is not complete, or the charge is not borne out from the evidence collected and filed with the charge-sheet. But he cannot return the same merely because the accused has not been arrested and produced in custody at the time of filing the charge-sheet. The reference stands answered, accordingly. Question (B) stands answered accordingly. 38. Question (C) referred by the learned CMM is as under: C) 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 applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o enable the person to surrender before the Trial Court and seek regular bail. (2) Whether the life of an anticipatory bail should end at the time and stage when the Accused is summoned by the Court . In the light of the aforesaid position, since the issue is still pending consideration before the larger bench of the Supreme Court, we do not consider it appropriate to delve into this question of law referred for our consideration. 39. Question (D) referred for our consideration is the following: D) Whether while deciding the bail application of the accused charge- sheeted without arrest, the court can delve into the reasons of non- arrest of the accused, considering the gravity of offence? The aforesaid question is a mere paraphrasing of Question (B) and, therefore, does not require us to give a separate answer to it. The answer to this question is covered by our decision in Court on its Own Motion (2) (supra). 40. The last question of law referred for our consideration is the following: E) Whether this court can release the accused on bail charge sheeted without arrest under section 376 IPC or any other offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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