On 28/05/2021, a full bench of Hon'ble Supreme Court of India in Criminal Appeal Nos. 522-523 of 2021, titled Nathu Singh Vs. State of Uttar Pradesh & Ors. and Ompal Singh Vs. State of Uttar Pradesh & Ors., has decided a substantial question of law relating to anticipatory bail Under Section 438 of CrPC, wherein, Hon'ble Allahabad High Court dismissed the applications for anticipatory bail but granted 90 days relief from any coercive action. Appeals were preferred before Hon'ble Supreme Court of India assailing the impugned orders of Hon'ble High Court granting 90 days relief from any coercive action.
It was argued on behalf of the appellants that once the High Court declined the final relief of pre-arrest to the respondents, it could not grant them any further protection. Further, Section 438 of CrPC does not contemplate the grant of any such protection on the dismissal of the application filed by an accused. Rather, the proviso to Section 438(1) of CrPC 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.
It was argued on behalf of the respondents that High Court has the power to pass such orders, in the interest of justice.
The sole question to be answered by the Hon'ble Court relates to whether the High Court while dismissing the anticipatory bail applications of the respondents, could have granted them protection from arrest?
Hon'ble Court has referred to its judgment in the matter of Sushila Aggarwal Vs. State (NCT of Delhi), (2020) 5 SCC 1, wherein, it was held that "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 avert), 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."
Hon'ble Court has observed that "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)."
Hon'ble Supreme Court has further observed that "it is no longer res integra that any interpretation of the provisions of Section 438, CrPC has to take into consideration the fact that the grant or rejection of an application Under Section 438, CrPC has a direct bearing on the fundamental rights 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 legislature have not explicitly provided for. Any ambiguity in the language must be resolved in favour of the applicant seeking relief."
At this stage, Hon'ble Court has referred to its judgment in Gurbaksh Singh Sibbia Vs. State of Punjab, (1980) 2 SCC 565, wherein, it was held that "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..."
Hon'ble Court has held that "without going into the question of whether Section 438, CrPC 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, CrPC 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."
Hon'ble Court has further held that "we cannot be oblivious to the circumstances that courts are faced with day in 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 needs no mentioning, but this court may also exercise its powers under Article 142 of the Constitution to pass such an order."
Hon'ble Court has held that "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 applications, 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), CrPC which necessitates that the Court passes such an exceptional discretionary protection order to 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."
Hon'ble Supreme Court, while setting aside the impugned orders, has held that "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 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. We are thus of the view that the High Court committed a grave error in passing such protection to the respondents-accused. Such a direction by the High Court exceeds its judicial discretion and amounts to judicial largesse, which the Courts do not possess."
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