Sunday, 6 April 2025

Supreme Court: Procedure the High court or Session Court must follow while entertaining Anticipatory bail application

We may remind the High Court of what this Court observed

in the case of Srikant Upadhyay & Ors. v. State of Bihar &

Anr., reported in 2024 INSC 202. We quote the relevant

observations as under:

“… A bare perusal of Section 438(1), Cr.PC, would

reveal that taking into consideration the factors

enumerated thereunder the Court may either reject

the application forthwith or issue an interim order

for the grant of anticipatory bail. The proviso

thereunder would reveal that if the High Court or,

the Court of Sessions, as the case may be, did not

pass an interim order under this Section or has

rejected the application for grant of anticipatory

bail, it shall be open to an officer in-charge of a

police station to arrest the person concerned

without warrant, on the basis of the accusation

apprehended in such application. In view of the

proviso under Section 438(1), Cr.PC, it cannot be

contended that if, at the stage of taking up the

matter for consideration, the Court is not rejecting

the application, it is bound to pass an interim

order for the grant of anticipatory bail. In short,

nothing prevents the court from adjourning such an

application without passing an interim order. This

question was considered in detail by a Single Bench

of the High Court of Bombay, in the decision in

Shrenik Jayantilal Jain and Anr. v. State of

Maharashtra through EOW Unit II, Mumbai 2014 SCC

Online Bom 549 and answered as above and we are in

agreement with the view that in such cases, there

will be no statutory inhibition for arrest. Hence,

the appellants cannot be heard to contend that the

application for anticipatory bail filed in November,

2022 could not have been adjourned without passing

interim order.…

We have already held that the power to grant

anticipatory bail is an extraordinary power. Though

in many cases it was held that bail is said to be a

rule, it cannot, by any stretch of imagination, be

said that anticipatory bail is the rule. It cannot

be the rule and the question of its grant should be

left to the cautious and judicious discretion by the

Court depending on the facts and circumstances of

each case. While called upon to exercise the said

power, the Court concerned has to be very cautious

as the grant of interim protection or protection to

the accused in serious cases may lead to miscarriage

of justice and may hamper the investigation to a

great extent as it may sometimes lead to tampering

or distraction of the evidence. We shall not be

understood to have held that the Court shall not

pass an interim protection pending consideration of

such application as the Section is destined to

safeguard the freedom of an individual against

unwarranted arrest and we say that such orders shall

be passed in eminently fit cases. At any rate, when

warrant of arrest or proclamation is issued, the

applicant is not entitled to invoke the

extraordinary power. Certainly, this will not

deprive the power of the Court to grant pre-arrest

bail in extreme, exceptional cases in the interest

of justice. …”{Para 16}

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.5456 OF 2024

DEEPAK AGGARWAL  Vs  BALWAN SINGH & ANR.

Dated: 18th December, 2024.

1. Since the issues raised in all the captioned petitions

are same and they all arise from a self same First

Information Report those were taken up for hearing

analogously and are being disposed of by this common order.

2. For the sake of convenience, the Special Leave Petition


(Crl.) No.17504 of 2024 is treated as the lead matter. The

order passed in this matter shall govern the disposal of the

other connected petitions.

3. Leave granted.

4. This appeal arises from the order passed by the High

Court of Punjab and Hayana at Chandigarh dated 08.11.2024 in

CRM-M No. 52981/2024 by which the High Court in an

application seeking anticipatory bail in connection with FIR

No. 239 dated 11.07.2024 registered with police station

Sohna, District Gurugram, Haryana for the offences punishable

under Sections 409, 420, 467, 468, 471 and 120 B of the

Indian Penal Code, 1860 and Sections 7 and 13(1) (b) of the

Prevention of Corruption Act, 1988 (for short the “1988

Act”), issued notice to the State and in the meantime granted

ad interim relief saying that the accused shall join the

investigation and in the event of his arrest, he shall be

released on interim bail to the satisfaction of the

investigation officer subject to the conditions as provided

under Section 482(2) of the Bhartiya Nagrik Suraksha Sanhita,

2023 (for short the “BNSS, 2023”),

5. The Original first informant being aggrieved by the grant

of ad-interim relief is here before this Court seeking to

challenge the impugned order passed by the High Court.

6. This Court issued notice vide order dated 09-12-2024 and

stayed the operation of the impugned order passed by the High

Court granting ad-interim protection to the accused.

7. We have heard Mr. Neeraj Kishan Kaul and Mr. Naveen

Pahwa, the learned senior counsel appearing for the

appellant(original first informant/complainant). On the other

hand, we have heard Mr.Paramjit Singh Patwalia, Mr. Sham

Diwan, Ms. Vibha Dutta Makhija and Mr. Atmaram NS Nadkarni,

the learned senior counsel appearing for the respondents

(accused persons).

8. It appears that a first information report came to be

lodged at the police station, referred to above for the

offences as alleged. It also appears that some public

servants have also been arrayed as accused in the F.I.R. We

do not propose to look into the nature of the allegations

levelled in the FIR or to put in other words even the exact

case of the prosecution as the matter is at large before the

High Court.

9. At the same time, we should also not overlook the fact

that there are allegations of criminal misappropriation,

cheating and forgery.

10. The matter seems to be at the stage of investigation. As

the accused persons named in the F.I.R. apprehended arrest,

they all prayed for anticipatory bail first before the

Sessions Court and on being denied anticipatory bail, they

are now before the High Court.

11. The High Court has issued notice to the State and has

passed an ad-interim order which reads thus”-

“In the meantime, the petitioner is directed to

join the investigation. In the event of arrest, he

shall be on ad interim bail to the satisfaction of

the arresting/investigating officer subject to the

conditions as provided under Section 482(2) of the

BNNS, 2023.”

12. We take notice of the fact that in all other connected

matters the High Court has said that till the anticipatory

bail applications are decided the accused persons shall not

be arrested.

13. What weighed with us in issuing notice and staying the

operation of the impugned order referred to above was the

nature of the ad interim relief the High Court thought fit to

grant.


14. Ordinarily, when the High Court takes up anticipatory

bail application for hearing it has three options. Either it

may reject it on the very first day or it may issue notice to

the State but would not grant any ad-interim protection or in

a given case may issue notice and may even deem fit to grant

appropriate protection. The aforesaid is of course the

discretion of the Court concerned having regard to the merits

of the matter. However, what we disapprove in the present

case is the nature of the ad-interim relief granted. The

same is practically in the nature of granting the final

relief.

15. There is no point in asking the accused to go before the

investigating officer pending the final disposal of the

anticipatory bail application before the High Court and

further saying that in the event of arrest he shall be

released on ad-interim bail. Such ad-interim reliefs have

their own legal implications.

16. We may remind the High Court of what this Court observed

in the case of Srikant Upadhyay & Ors. v. State of Bihar &

Anr., reported in 2024 INSC 202. We quote the relevant

observations as under:

“… A bare perusal of Section 438(1), Cr.PC, would

reveal that taking into consideration the factors

enumerated thereunder the Court may either reject

the application forthwith or issue an interim order

for the grant of anticipatory bail. The proviso

thereunder would reveal that if the High Court or,

the Court of Sessions, as the case may be, did not

pass an interim order under this Section or has

rejected the application for grant of anticipatory

bail, it shall be open to an officer in-charge of a

police station to arrest the person concerned

without warrant, on the basis of the accusation

apprehended in such application. In view of the

proviso under Section 438(1), Cr.PC, it cannot be

contended that if, at the stage of taking up the

matter for consideration, the Court is not rejecting

the application, it is bound to pass an interim

order for the grant of anticipatory bail. In short,

nothing prevents the court from adjourning such an

application without passing an interim order. This

question was considered in detail by a Single Bench

of the High Court of Bombay, in the decision in

Shrenik Jayantilal Jain and Anr. v. State of

Maharashtra through EOW Unit II, Mumbai 2014 SCC

Online Bom 549 and answered as above and we are in

agreement with the view that in such cases, there

will be no statutory inhibition for arrest. Hence,

the appellants cannot be heard to contend that the

application for anticipatory bail filed in November,

2022 could not have been adjourned without passing

interim order.…

We have already held that the power to grant

anticipatory bail is an extraordinary power. Though

in many cases it was held that bail is said to be a

rule, it cannot, by any stretch of imagination, be

said that anticipatory bail is the rule. It cannot

be the rule and the question of its grant should be

left to the cautious and judicious discretion by the

Court depending on the facts and circumstances of

each case. While called upon to exercise the said

power, the Court concerned has to be very cautious

as the grant of interim protection or protection to

the accused in serious cases may lead to miscarriage

of justice and may hamper the investigation to a

great extent as it may sometimes lead to tampering

or distraction of the evidence. We shall not be

understood to have held that the Court shall not

pass an interim protection pending consideration of

such application as the Section is destined to

safeguard the freedom of an individual against

unwarranted arrest and we say that such orders shall

be passed in eminently fit cases. At any rate, when

warrant of arrest or proclamation is issued, the

applicant is not entitled to invoke the

extraordinary power. Certainly, this will not

deprive the power of the Court to grant pre-arrest

bail in extreme, exceptional cases in the interest

of justice. …”

(Emphasis supplied)

17. Having said the aforesaid, we would like to dispose of

all the appeals in the following terms:-

(i) The High Court shall pre-pone the hearing

of all the bail applications to 7th January,

2025.

(ii) On the date of hearing of all the

anticipatory bail applications, the respective

applicants (original accused persons) shall

personally remain present before the High

Court. Upon conclusion of the hearing of all

the anticipatory bail applications, if the High

Court deems fit to reserve the order then till

the pronouncement of the order that the Court

may pass the accused persons shall not be

arrested.

(iii) We clarify that we have otherwise not

expressed any opinion worth the name on the

merits of the case of the prosecution. We had

to intervene only because of the peculiar

nature of the ad-interim protection which the

High Court thought fit to grant.

(iv) All the anticipatory bail applications

shall be decided by the Court on their own

merits without being influenced by any of the

developments that have taken place between the

date of grant of the ad-interim relief and the

date of passing of this order by this Court.

(v) In the event, if the accused persons

seeking anticipatory bail do not remain present

personally before the High Court, their

applications shall not be taken up for hearing

and it shall be open to the Investigating

Officer to proceed to arrest the accused

persons.

18. With the aforesaid, all the appeals stand disposed

of.

19. Pending application(s), if any, stand disposed of.

……………………………………………J.

 [J.B. PARDIWALA]

……………………………………………J.

 [R. MAHADEVAN]

New Delhi

18th December, 2024.


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