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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