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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 ..... Gaurav Singh, Pooran Singh Rawat, Rajveer Singh, Abhishek Verma, Raj Kumar Singh, Vikas Bahuguna, Rajat Mittal, B.S. Adhikari, Bilal Ahmed, Sanjeev Singh, Navneet Kaushik, Safdar, Advocates For the Respondent : J.S. Virk, Learned Deputy Advocate General, Rakesh Kumar Joshi, Pankaj Joshi, Learned Brief Holders, Prabha Naithani, B.D. Jha, Preeti Jha and Priyanka Jha, Learned Counsels JUDGMENT MANOJ KUMAR TIWARI, J. 1. The question which falls for consideration by this Larger Bench is whether an application for anticipatory bail is maintainable after charge sheet has been filed in the Court? 2. It transpires that a learned Single Judge of this Court had referred the aforesaid question to a Larger Bench vide order dated 17.08.2022. The said question was answered in the affirmative by a Division Bench vide order dated 7.9.2022. Learned Single Judge, however, was of the opinion that the issues raised in the order of reference have 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 Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e court in anticipation of arrest. 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 and the investigation is in progress or at a stage after the investigation is concluded. Power to grant "anticipatory bail" under Section 438 CrPC vests only with the Court of Session or the High Court. .............................." (emphasis supplied) 3. A Division Bench of this Court has answered the reference on 07.09.2022. The Division Bench observed that anticipatory bail application is maintainable even after filing of the charge sheet. While answering, the Division Bench did not make any mention of the judgment in the case of Satender Kumar Antil (supra) and the judgment in the case of Sushila 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the security, known also as the bail, or, more accurately, the bail bond, is set by the court having jurisdiction over the prisoner. The security may be cash, the papers giving title to property, or the bond of private persons of means. Failure of the person released on bail to surrender himself at the appointed time results in forfeiture of the security. 7. The expression "bail" is not defined in the Code of Criminal Procedure. Hon'ble Supreme Court in the case of Vaman Narain Ghiya v. State of Rajasthan, reported as (2009) 2 SCC 281, has discussed the concept and philosophy of bail in para 6, 7 and 8 of the judgment, which are reproduced below: "6. "Bail" remains an undefined term in CrPC. Nowhere else has the term been statutorily defined. Conceptually, it continues to be understood 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 Fren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt." 8. The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail and it is neither punitive nor preventative. In the case of Sanjay Chandra v. C.B.I., reported as (2012) 1 SCC 40, Hon'ble Supreme Court held that deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. Para 40 of the said judgment is reproduced below: "40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, 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 aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy' 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 consequences, vide Roshan Beevi. 49. While interpreting the expression 'in custody' within the meaning of Section 439 CrPC, Krishna Iyer, J. speaking for the Bench in Niranjan Singh v. Prabhakar Rajaram Kharote observed that: (SCC p. 563, para 9) "9. He can be in custody not merely when the police 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 befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of expression "Personal Liberty" as used in Article 21 of the Constitution of India and rejected the argument that the expression "Personal Liberty" must be so interpreted as to avoid overlapping between Article 21 and Article 19(1). In para 5 of the judgment, the following observation was made:- "---The expression "personal liberty" in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. 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, convicted of the 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 constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n FIR is filed, so long as the applicant has not been arrested. 39. Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, insofar as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested." 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. Relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration and thereafter directing the accused to surrender and apply for regular bail is contrary to the legislative intent and also the judgment of the Constitution Bench in Gurbaksh Singh Sibbia. Para 104 of the said judgment is reproduced below: "104. The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail; this is contrary to the basic intention and spirit 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the court; (iv) such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section. (3) 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail is presently granted by the court in anticipation of arrest. 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 and the investigation is in progress or at a stage after the investigation is concluded. Power to grant "anticipatory bail" 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt intended to restrict its operation, either as regards the time period, or in terms of the nature of the offences in respect of which, an applicant had to be denied bail, or which special considerations were to apply. In this context, it is relevant to recollect that the court would avoid imposing restrictions or conditions 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration before the Constitution Bench in the case of Sushila Aggarwal v. State (NCT of Delhi) are as follows: (i) Whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period so as to enable the person to surrender before the trial court and seek regular bail? (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 bai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to grant anticipatory bail in non- bailable offences under Section 438 of CrPC even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the court to do so." 39. Similarly, in the case of Ravindra Saxena v. State of Rajasthan, reported as (2010) 1 SCC 684, Hon'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 salut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Another (Criminal Appeal No. 272-273 of 2021) relied upon the observation made in para 77.3 of the judgment rendered in Sushila Aggarwal (supra) and held that the High Court erred in holding that the anticipatory bail granted to the appellant by the trial court had come to an 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 charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidering these factors and also highlighting the fact that the accused cooperated with the investigation both before 8.8.2022, when no protection was granted to him and after 8.8.2022, when he enjoyed protection till the filing of the charge sheet and the cognizance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for interpreting a provision, when there is no ambiguity in the language of the statute. Law Commission's report, therefore, cannot be pressed into service for restricting the meaning of a statutory provision or for reading some conditions into 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 reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat deliberately "due process of law" has been avoided into it. 58. Right to Life and Liberty may, in fact, be traced back to Magna Carta, wherein it was recorded that No free man shall be seized or 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 Adviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves that the Constitution of India is an organic and dynamic document and it evolves with the change of 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 establ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow 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 police officer shall, by ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 offences. The Schedule given in the Code makes the distinction. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlays 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 discussed the law as to what are the factors that are to be considered while considering an application for bai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting "anticipatory bail" becomes operative." 83. The scope and applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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 that it should be left to the regular court". This was not upheld by the Hon'ble Supreme Court in the case of Mhetre (supra). In the case of Mhetre (supra) the Hon'ble Supreme Court observed that, "Section 438 CrPC does not mention anything about the duration to which a direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 there be a submission to the custody by word or action". A direction under Section 438 is intended to confer conditional immunity from this 'touch' or confinement." (emphasis supplied) 90. The above observation of the Hon'ble Supreme Court makes it abundantly clear that the anticipatory bail is an apprehensi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss 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 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)." "6. The Law Commission, in para 31 of its 48th Report (1972), made the following comments on the aforesaid clause: "The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 chargesheet." 100. In the case of Bhadresh Bipinbhai Sheth (supra), the Hon'ble Supreme Court, in fact, upheld the grant of anticipatory bail during trial, when the accused was additionally charged for an offence under Section 376 IPC. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acting 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 wholly correct. In para 12 only one ground was argued in the appeal, which ground found favour with this Court. In any case, a modification of an award upheld on facts without any discussion on the law does not carry the matter very much further." (iii) In the case of HDFC (supra), the Hon'ble Supreme Court has held that Anticipatory bail application may not be entertained post filing of chargesheet because if it is done, it would amount to violence to the provisions of Section 438 Cr.P.C. (iv) In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 filed. (a) Once chargesheet is filed, the police may not proceed against the person chargesheeted, although, further investigation may be done under Section 173 (8) of the Code. Investigation is done by the Investigating Officer. After conclusion of the investigation, the Investigating Officer, on his own, does not go to the court to submit the chargesheet. There are some more stages after completion of investigation and filing of the chargesheet. From the Investigating Officer, the chargesheet moves in the hands of various persons. In the State of Uttarakhand, the U.P. Police Regulations that are applicable, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 "arrest" as finds place in Section 438 of the Code is required to be defined. How far can this Court go to gather its meaning? What Rules have to be applied? What would be the impact of Law Commission's Report, statements, objects and reasons of the Act? INTERPRETATION OF STATUTE 105. The principles of interpretation of statutes are settled that a section in the statute should not be read in isolation. It should be read along with other sections of the statute. 106. In the case of Assessing Authority-Cum-Excise and Taxation Officer, Gurgaon v. East India Cotton MFG. Co. Ltd., Faridabad, (1981) 3 SCC 531 the Hon'ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the judge must seek and effectuate." 110. In the case of SP Gupta v. Union of India, 1981 Supp SCC 87, the Hon'ble Supreme Court, on that aspect, observed that the Report of Law Commission can be looked into to understand the history of the legislation, and the object with which the law was enacted. In Para 1235 of the judgment, the Hon'ble Supreme Court observed as hereunder:- "1235. The Report of the Committees of the Law Commission are entitled to great respect as they are prepared by experienced persons after taking into consideration all relevant aspects and sometimes the evidence collected by them from several sources. If they are to be excluded many opinions expressed in many of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed 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 considered: 1st. What was the common law before the making of the Act. 2nd. What was the mischief and defect for which the common law did not provide. 3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth., and 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall 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 bona publico." In In re Mayfair Property Company [LR (1898) 2 Ch 28 at p. 35] Lindley, M.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the legislature, which is to suppress a mischief, the court can depart from the dictionary meaning or even the popular meaning of the word and instead give it a meaning which will advance the remedy and suppress the mischief." "64. The aim of such statutory construction was put, pithily and simply in Swantraj v. State of Maharashtra, (1975) 3 SCC 322 : 1974 SCC (Cri) 930: (SCC p. 323, para 1) "1. Every legislation is a social document and judicial construction seeks to decipher the statutory mission, language permitting, taking the one from the rule in Heydon case, (1584) 3 Co Rep 7a : 76 ER 637, Maxwell on the Interpretation of Statutes, 12th Edn. (1969) pp. 40, 96. of suppressing the evil and advancing the remedy." 115. The four steps to understand and interpret the law, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 observed 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 consequences." In para 46 and 48 of the judgment, the Hon'ble Supreme Court further observed as follows:- "46. The word 'arrest' is derived from the French word 'Arreter' meaning "to stop or stay" and signifies a restraint of the person. Lexicologically, the meaning of the word 'arrest' is given in various dictionaries depending upon the circumstances in which the said expression is used. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 consequences, vide Roshan Beevi, 1984 Cri LJ 134 : (1984) 15 ELT 289 : 1983 MLW (Cri) 289 (Mad)." 118. In the case of State of Haryana and others v. Dinesh Kumar, (2008) 3 SCC 222, the Hon'ble Supreme Court interpreted the words "arrest" and "custody" and in para 27 observed as follows:- "27. The interpretation of "arrest" and "custody" rendered by the Full Bench in Roshan Beevi case [1984 Cri LJ 134 (Mad)] may be relevant in the context of Sections 107 and 108 of the Customs Act where summons in respect of an enquiry may amount to "custody" but not to "arrest", but such custody could subsequently materialise into arrest. The position is different as far as proceedings in the court are concerned in relation to enquiry into offences under the Penal Code and other criminal enactments. In the latter set of cases, in order to obtain the benefit of bail an accused has to surrender to the custody of the court or the poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd his submission to the custody of the Court, after filing of the chargesheet, in response to the processes issued by the court. In such case, in view of the case of Deepak Mahajan (supra), there is implied arrest before such accused is taken into custody. 122. In case there is an apprehension of arrest by police, in such matters, definitely an application for anticipatory bail may be entertained. 123. The question that falls for consideration is whether the word "arrest" as finds place under Section 438 of the Code also includes the (ii) situation, as stated hereinabove. It requires interpretation of Section 438 of the Code. 124. In cases when an accused appears after issuance of process by a court on chargesheet, the situation is different. After filing of chargesheet, cognizance is taken and summons or other processes are issued. Thereafter, the exercise of taking cognizance is not a mechanical or routine exercise. The court has to apply its judicial mind before taking cognizance. 125. In the case of Pepsi Foods Ltd. and Another v. Special Judicial Magistrate, (1998) 5 SCC 749, the Hon'ble Supreme Court, in Para 28 of the judgment, observed that, "Summoning of an accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 438 of the Code. 129. Right to Life and Personal Liberty has to be given much extended meaning, but, as stated, the "Right to Life and Personal Liberty" as enshrined under Article 21 of the Constitution is not as such absolute. A person may be deprived of his Right to Life and Personal Liberty according to the "procedure established by law." Chargesheet is filed in the court after completion of an investigation. After filing of the chargesheet/complaint, the court examines the matter and while taking cognizance issues process. An accused appears before the Court in response to such process. This all is according to the "process established by law." At this stage, it cannot be said that such person has been falsely implicated for sending him behind bars by some influential persons. Taking such person into custody is not "arrest", as used under Section 438 of the Code. The meaning of "arrest" cannot be construed to bring such accused within the provisions of Section 438 of the Code. 130. Therefore, in view of the foregoing discussion, this Court is of the view that the word "arrest", as finds place under Section 438 of the Code, does not relate to the situation when after fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general provision operates, save and except in situations covered by the specific provision. The rationale behind this principle of statutory construction is that were there appears a conflict between two provisions, it must be presumed that the legislature did not intend a conflict and a subject-specific provision governs those situations in exclusion to the operation of the general provision." 134. As discussed hereinabove, there are various provisions of bail in the Code. Sections 437 and 439 of the Code are general and broad principles. Section 438 of the Code comes into play only when there is apprehension of arrest in a non-bailable offence. Now, if the word "arrest" as occurs in Section 438 of the Code is taken to cover all situations of arrest or all situations under which an accused may be taken into custody by a court, it may make various other provisions of the Code redundant and may be a kind of violence to the provisions of Section 438 of the Code. 135. Suppose an accused is facing trial and he does not repeatedly appear during trial, his bail is cancelled, sureties are notified and after hearing them, penalties are imposed and non-bailable warrants are issued agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e difficult situations. For example, if on the date of judgment, one of the accused does not appear and he is convicted with a sentence, in that eventuality, the Court would issue a non-bailable warrant for ensuring his presence, so as to serve out the sentence. Can it be said that because the convict is apprehending his arrest, he may file an anticipatory bail application? Can an anticipatory bail application filed by such convict be entertained? Definitely it cannot be. Section 438 of the Code has not contemplated such a situation. 140. In the case of Sibbia (supra), the Hon'ble Supreme Court has held that anticipatory bail can be applied so long as the applicant has not been arrested (Para 38). This arrest is till chargesheet is filed, as observed by the Hon'ble Supreme Court in the case of Sushila Aggarwal (supra). 141. In the case of Mahdoom Bava (supra), the Hon'ble Supreme Court entertained an anticipatory bail application observing that, " in some parts of the country, there seems to be a practice followed by Courts to remand the accused to custody, the moment they appear in response to the summoning order." This practice of deferring hearing of bail applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and D with the additional condition of compliance of the provisions of bail under NDPS (Section 37), Section 45 of the PMLA, Section 212(6) of the Companies Act, Section 43-D(5) of the UAPA, POCSO, etc." "4. Needless to say that the Category A deals with both police cases and complaint cases." "5. The trial courts and the High Courts will keep in mind the aforesaid guidelines while considering bail applications. The caveat which has been put by the learned ASG is that where the accused have not cooperated in the investigation nor appeared before the investigating officers, nor answered summons when the court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a possible recovery is needed, the aforesaid sapproach cannot give them benefit, something we agree with." 142. This has been further clarified by the Hon'ble Supreme Court in the case of Satender Kumar Antil (supra) on 21.03.2023, when the Hon'ble Supreme Court observed that, "we would like to clarify that what we have enunciated qua bail would equally apply to anticipatory bail cases. Anticipatory bail is after all one of the species of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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. 150. In Gurbaksh Singh Sibba and others vs. State of Punjab, (1980) 2 SCC 565, 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. 151. In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the same view has been taken by the Supreme Court, as noticed by both my learned brothers. 152. Brother Maithani, J. has also noticed several judgments of the Supreme Court, in his opinion, wherein the Supreme Court considered the anticipatory bail applications ..... X X X X Extracts X X X X X X X X Extracts X X X X
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