Code of Criminal Procedure, 1973: s.438 – Anticipatory bail – Propriety of protective order after dismissal of anticipatory bail application – High Court while dismissing anticipatory bail application of the respondents-accused granted them 90 days to surrender before trial court to seek regular bail and granted them protection from coercive action for the said period – Aggrieved by such relief, instant appeal filed by the complainant – Held: A Court, be it a Sessions Court or a High Court, in certain special facts and circumstances may decide to grant anticipatory bail for a limited period of time – The Court must indicate its reasons for doing so, which would be assailable before a superior Court – In granting the relief for a period of 90 days, the Court has seemingly not considered the concerns of the investigating agency, complainant or the proviso under s.438(1) which necessitates that the Court pass such an exceptional discretionary protection order for the shortest duration that is reasonably required – A period of 90 days, or three months, cannot in any way be considered to be a reasonable one in the instant facts and circumstances – The resultant effect of the High Court’s orders is that neither are the respondents found entitled to pre-arrest bail, nor can they be arrested for a long duration – During the said duration, they can roam freely without being apprehensive of coercive action – Thus, High Court committed a grave error in passing such protection to the respondents-accused – Such a direction by the High Court exceeded its judicial discretion and would amount to judicial largesse, which the Courts do not possess.
Allowing the appeals, the Court
HELD: 1. The Constitution Bench in Sushila Aggarwal has authoritatively held that when a Court grants anticipatory bail under Section 438, Cr.P.C., the same is ordinarily not limited to a fixed period and would subsist till the end of the trial. However, it was clarified by the Court that if the facts and circumstances so warranted, the Court could impose special conditions, including limiting the relief to a certain period. However, in these appeals, the High Court, after considering the facts and circumstances of the case, particularly the gravity and severity of the accusations against the respondents, rejected the application of the respondents-accused. It is after rejecting the application that the High Court chose fit to grant some relief to the respondents while directing them to surrender before the Trial Court to file a regular bail application within 90 days, by protecting them from any coercive action during that period. [Paras 14, 16][605-D-E, H; 606-A]
Sushila Aggarwal v. State (NCT of Delhi) (2020) 5 SCC
1 : [2020] 2 SCR 1 – relied on.
2.1 The focus of Section 438, Cr.P.C., when read in its entirety, clearly relates to the grant of anticipatory bail by the Court. Section 438(1) explicitly lays down certain factors that need to be considered by the Court before granting the relief sought. Section 438(2) lays down the conditions that may be imposed by the Court while granting the relief. Section 438(3) dictates the consequences of the grant of relief under the Section. The only guidance relating to what is to take place once an application under Section 438, Cr.P.C. is rejected is found in the proviso to Section 438(1), Cr.P.C., which specifically provides that once an application is rejected, or the Court seized with the matter refuses to issue an interim order, it is open to the police to arrest the applicant. [Paras 18, 19][607-B-D]
2.2 Any interpretation of the provisions of Section 438, Cr.P.C. has to take into consideration the fact that the grant or rejection of an application under Section 438, Cr.P.C. has a direct bearing on the fundamental right to life and liberty of an individual. The genesis of this jurisdiction lies in Article 21 of the Constitution, as an effective medium to protect the life and liberty of an individual. The provision therefore needs to be read liberally, and considering its beneficial nature, the Courts must not read in limitations or restrictions that the legislature have not explicitly provided for. Any ambiguity in the language must be resolved in favour of the applicant seeking relief.The proviso does not create any rights or restrictions. Rather, the sole purpose of the proviso appears to be clarificatory in nature. It only restates, inter alia, the obvious proposition that unless an individual has obtained some protection from the Court, the police may arrest them. If the proviso to Section 438(1), Cr.P.C. does not act as a bar to the grant of additional protection to the applicant, the question still remains as to under what provision of law the Court may issue relief to an applicant after dismissing their anticipatory bail application. [Paras 20, 21, 22][607-F-G; 608-D-F]
3. Section 482, Cr.P.C explicitly recognizes the High Court’s inherent power to pass orders to secure the ends of justice. This provision reflects the reality that no law or rule can possibly account for the complexities of life, and the infinite range of circumstances that may arise in the future.Even when the Court is not inclined to grant anticipatory bail to an accused, there may be circumstances where the High Court is of the opinion that it is necessary to protect the person apprehending arrest for some time, due to exceptional circumstances, until they surrender before the Trial Court. For example, the applicant may plead protection for some time as he/she is the primary caregiver or breadwinner of his/her family members, and needs to make arrangements for them. In such extraordinary circumstances, when a strict case for grant of anticipatory bail is not made out, and rather the investigating authority has made out a case for custodial investigation, it cannot be stated that the High Court has no power to ensure justice. The Supreme Court may also exercise its powers under Article 142 of the Constitution to pass such an order.However, such discretionary power cannot be exercised in an untrammeled manner. The Court must take into account the statutory scheme under Section 438, Cr.P.C., particularly, the proviso to Section 438(1), Cr.P.C., and balance the concerns of the investigating agency, complainant and the society at large with the concerns/interest of the applicant. Therefore, such an order must necessarily be narrowly tailored to protect the interests of the applicant while taking into consideration the concerns of the investigating authority. Such an order must be a reasoned one. [Paras 23, 24, 25][608-G; 609-A-E]
Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC
565 : [1980] 3 SCR 383 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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