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TMI Blog2023 (8) TMI 1441X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been considered and then the question was again referred to Larger Bench vide order dated 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated, 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 &qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." 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 foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 theaforesaidprovisionreveals that legislaturehas notimposed 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 itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l" 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 conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ognizance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto 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. RAVINDRA MAITHANI, J. INTRODUCTION 52. 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. 53. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 59. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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."] 62. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Magistrate). 67. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the police to a permissible limit, which is 24 hours. Thereafter, such person is produced before the Magistrate or court concerned. 73. 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. 74. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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." 78. When an accused is arrested and he seeks bail, what would be the consideration? In the case of Rao Harnarain Singh and Others v. The State, AIR 1958 P&H 123, 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 v. Amarmani Tripathi, (2005) 8 SCC 21, the Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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)." 81. 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". 82. In the case of Balchand Jain v. State of M.P., (1976) 4 SCC 572, 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 rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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." 87. In the case of Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996) 1 SCC 667, the Hon'ble Supreme Court held that "anticipatory bail should be granted only for limited period and after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 abeing 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubtedly, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of Bihar, (2003) 8 SCC 77, Ravindra Saxena v. State of Rajasthan, (2010) 1 SCC 684, Vinod Kumar Sharma v. State of Uttar Pradesh, 2021 SCC OnLine SC 3225, Bhadresh Bipinbhai Sheth v. State of Gujarat, (2016) 1 SCC 152 and Mahdoom Bava v. Central Bureau of Investigation, 2023 SCC OnLine SC 299 considered anticipatory bail application despite charge sheet having been filed. 97. 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." 98. 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." 99. In the case of Vinod Kumar Sharma (supra), the Hon'ble Supreme Court observed that "Merely because it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heth (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 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 v. M. Hakeem, (2021) 9 SCC 1, 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 who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 104. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce 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, 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. 113. In the case of Bengal Immunity Company Limited v. State of Bihar, AIR 1955 SC 661, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stly, what was the common law before the making of the Act; secondly what was the 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 117. 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 v. Deepak Mahajan, (1994) 3 SCC 440, the Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time and in the circumstances to issue a warrant. 121. 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 cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 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. 129. Right to Life and Personal Liberty has to be given much extended mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into custody? If it is answered in affirmative, it would make Section 389 of the Code redundant. 138. 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. 139. 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrested 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Sushila Aggarwal (supra) on anticipatory bail. 143. 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 144. An application for anticipatory bail is not maintainable after the chargesheet has been filed in the Court. 145. The Reference is answered accordingly. VIPIN SANGHI, C.J. 146. I have perused the opinions prepared by my brothers Manoj Kumar Tiwari, J., and Ravindra Maithani, J. 147. 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. 148. 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. 149. Section 438 of the Code of Criminal Procedure, which deals with what i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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