Law Web: Under which circumstances high court can grant protection to accused from arrest after rejecting anticipatory bail application?

Without going into the question of whether Section 438,

Cr.P.C. itself allows for such a power, as it is not necessary to

undertake such an exercise in the present case, it is clear

that when it comes to the High Court, such a power does

exist. 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.

{Para 23}

24. We cannot be oblivious to the circumstances that Courts

are faced with day in and day out, while dealing with

anticipatory bail applications. 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. It

needs no mentioning, but this Court may also exercise its

powers under Article 142 of the Constitution to pass such an

order.

25. 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.

26. The impugned orders passed by the High Court, in the

present appeals, do not meet any of the standards as laid out

above. We say so for the following reasons: firstly, after the

dismissal of the anticipatory bail application, on the basis of

the nature and gravity of the offence, the High Court has

granted the impugned relief to the respondents without

assigning any reasons. Secondly, 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 Section 438(1), Cr.P.C., 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 present facts and

circumstances.

27. The impugned orders therefore do not withstand legal

scrutiny. The resultant effect of the High Court’s orders is that

neither are the respondents found entitled to prearrest

bail, nor can they be arrested for a long duration. During the said

duration they can roam freely without being apprehensive of

coercive action. We are thus of the view that the High Court

committed a grave error in passing such protection to the

respondentsaccused.

Such a direction by the High Court

exceeds its judicial discretion and amounts to judicial

largesse, which the Courts do not possess.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.522 OF 2021

Nathu Singh Vs State of Uttar Pradesh

Author: N.V. RAMANA, CJI .

Dated: MAY 28, 2021

1. Leave granted.

2. The present Criminal Appeals, by way of Special Leave,

raise common question of law and are therefore being

disposed of together.

3. In both the impugned orders, the High Court of

Judicature at Allahabad, while dismissing the anticipatory

bail application of the respondentsaccused,

granted them 90

days to surrender before the Trial Court to seek regular bail

and granted them protection from coercive action for the said

period. Aggrieved by the grant of such relief, the complainants

in both the matters are currently in appeal before us.

4. As only a question of law is being raised, it is not

necessary for this Court to advert to the facts of both the

matters extensively. It is sufficient to point out that in the

first case, pertaining to Nathu Singh, the appellant’s daughter

was married to respondent no. 2 in that case on 14.02.2014.

As she died under suspicious circumstances in her

matrimonial home on 02.01.2021, the complainant registered

FIR No. 07/2021 at police station Masuri, Ghaziabad under

Sections 304B and 498A, IPC read with Sections 3 and 4 of

the Dowry Prohibition Act against the respondents nos. 2 to

5. In the second case, the allegations are that the

appellant’s brother and the latter’s two sons were attacked by

the respondents in that case, due to a dispute between the

parties relating to encroachment of land. The two sons were

attacked on their vital parts, with one of them suffering a

skull fracture as a result of which he was in a coma for one

week. The other had lacerations on his head. The complainant

registered FIR No. 371/20 at police station Thana Bhawan,

Shamili under Sections 307, 504 and 34, IPC.

6. The respondents in both the cases approached the High

Court under Section 438, Cr.P.C., during ongoing

investigation, and sought protection from arrest. Vide the

impugned orders dated 08.02.2021 and 28.01.2021, the High

Court dismissed the applications of the respondents but

granted them the aforementioned relief in identically worded

orders. The relevant portion of the order, as extracted from

the impugned order dated 08.02.2021, is as follows:

“…. Having heard learned counsel for the

parties and upon perusal of material

brought on record as well as complicity

of accused and also judgement of the

Apex Court in the case of P.

Chidambaram v. Directorate of

Enforcement, AIR 2019 SC 4198, this

Court does not find any exceptional

ground to exercise its discretionary

jurisdiction under Section 438 Cr.P.C.

However, in view of the entirety of facts

and circumstances of the case and on

the request of learned counsel for the

applicants, it is directed that in case the

applicants appear and surrender before

the court below within 90 days from

today and apply for bail, their prayer for

bail shall be considered and decided as

per the settled law laid by this Court in

the case of Amrawati and another v.

State of U.P. reported in 2004 (57) ALR

290 as well as judgement passed by

Hon’ble Apex Court in the case of Lal

Kamlendra Pratap Singh v. State of

U.P. reported in 2009 (3) ADJ 322 (SC).

Till then, no coercive action shall be

taken against the applicants....”

(emphasis supplied)

7. Aggrieved by the impugned orders, the complainantsappellants

have filed the present appeals by way of special

leave.

8. Heard the learned counsel for the appellants, the

respondentState

and the respondentsaccused

at length.

9. The learned counsel for the appellants, supported by the

learned State counsel, urged that once the High Court

declined the final relief of prearrest

to the respondents, it

could not grant them any further protection. The learned

counsel submitted that Section 438, Cr.P.C. does not

contemplate the grant of any such protection on the dismissal

of the application filed by an accused. Rather, the proviso to

Setion 438(1), Cr.P.C. specifically provides for the arrest of the

accused on a rejection of the relief sought in their application.

The impugned orders, wherein the High Court granted

protection to the respondents subsequent to the dismissal of

their application, was therefore passed in excess of the High

Court’s jurisdiction under Section 438, Cr.P.C. The learned

State counsel further submitted that the High Court’s orders

have hampered the ongoing investigation as the police have

been denied custodial interrogation of the accused,

notwithstanding the fact that the nature of offences in both

cases is grave and heinous.

10. On the contrary, learned counsel for the respondentsaccused

justified the discretion exercised by the High Court

and submitted that the High Court has the power to pass

such orders, in the interest of justice.

11. The sole question to be answered by the Court in the

present appeals relates to whether the High Court, while

dismissing the anticipatory bail applications of the

respondents, could have granted them protection from arrest.

12. The considerations on the basis of which the Court is to

exercise its discretion to grant relief under Section 438,

Cr.P.C. have been decided by this Court in a catena of

judgments and needs no restatement.

13. A recent Constitution Bench judgment of this Court, in

Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1

has clarified the extent of power exercisable by Courts under

Section 438, Cr.P.C. The Court ultimately held as follows:

“91.1. Regarding Question 1, this

Court holds that the protection

granted to a person under Section

438 CrPC should not invariably be

limited to a fixed period; it should

enure in favour of the accused

without any restriction on time.

Normal conditions under Section

437(3) read with Section 438(2)

should be imposed; if there are

specific facts or features in regard

to any offence, it is open for the

court to impose any appropriate

condition (including fixed nature of

relief, or its being tied to an event),

etc .

91.2. As regards the second

question referred to this Court, it is

held that the life or duration of an

anticipatory bail order does not end

normally at the time and stage

when the accused is summoned by

the court, or when charges are

framed, but can continue till the

end of the trial. Again, if there are

any special or peculiar features

necessitating the court to limit the

tenure of anticipatory bail, it is

open for it to do so.”

(emphasis supplied)

14. The Constitution Bench in Sushila Aggarwal (supra)

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.

15. It is therefore clear that 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. To do so without

giving reasons, would be contrary to the pronouncement of

this Court in Sushila Aggarwal (supra). If the High Court

had therefore decided to allow the anticipatory bail

application of the respondentsaccused

herein, albeit for a

limited period of 90 days, the task before this Court would

have been somewhat easier. We would only have had to

assess the reasons assigned by the Court, if any, for the

imposition of such special condition in terms of the judgment

in Sushila Aggarwal (supra).

16. However, in the present 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 respondentsaccused.

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. The appellantscomplainants

are aggrieved by the same and are challenging

the power of the Court to pass such a protective order after

the dismissal of the anticipatory bail application.

17. To determine whether the Court can pass such orders, it

is necessary to first analyze the relevant provision, viz.,

Section 438, Cr.P.C. The relevant portion of Section 438,

Cr.P.C. 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

an accusation of having committed

a nonbailable

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:xxx

either reject the application

forthwith or issue an interim order

for the grant of anticipatory bail:

Provided that, where the High

Court or, as the case may be, the

Court of Session, has not passed

any interim order under this subSection

or has rejected the

application for grant of anticipatory

bail, it shall be open to an officer

incharge of a police station to

arrest, without warrant, the

applicant on the basis of the

accusation apprehended in such

application.

xxx

(2) When the High Court or the

Court of Session makes a direction

under subsection

(1), it may

include such conditions in such

directions in the light of the facts of

the particular case, as it may think

fit, including xxx

(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 subsection

(1).

(emphasis supplied)

18. 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.

19. 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. It is this proviso

that the present appellants have relied upon to argue that the

High Court, once it rejected the anticipatory bail applications

of the respondentsaccused,

did not have the power to grant

any further relief.

20. At first blush, while this submission appears to be

attractive, we are of the opinion that such an analysis of the

provision is incomplete. It is no longer res integra that 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. In this context, this Court, in the Constitution

Bench decision of this Court in Gurbaksh Singh Sibbia v.

State of Punjab, (1980) 2 SCC 565, which was recently

upheld and followed by this Court in Sushila Aggarwal

(supra), held as follows:

“26. We find a great deal of

substance in Mr Tarkunde's

submission that since denial of bail

amounts to deprivation of personal

liberty, the court should lean

against the imposition of

unnecessary restrictions on the

scope of Section 438, especially

when no such restrictions have

been imposed by the legislature in

the terms of that section. 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 overgenerous

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…”

(emphasis supplied)

21. When the proviso to Section 438(1), Cr.P.C. is analyzed

in line with the above dictum, it is clear that 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. In line with the ruling in Gurbaksh

Singh Sibbia (supra), the proviso cannot be read as

constituting a bar on the power of the Court.

22. 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.

23. Without going into the question of whether Section 438,