Himachal Pradesh High Court
Crmp(M) No.484/2022 vs Ramprasad Vishwanath Gupta & on 30 March, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 30TH DAY OF MARCH, 2022
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
.
CRIMINAL MISC. PETITIONS (MAIN) No.484 & 555 OF 2022
1. CRMP(M) NO.484/2022
Between
PAWAN KUMAR
S/O SHRI LEKH RAM
R/O VILLAGE BARMANA, PO BARMANA
TEHSIL SADAR, DISTRIC BILASPUR
HIMACHAL PRADESH.
.....PETITIONER
(BY MR. RAJIV RAI & MR. GURDEV NEGI, ADVOCATES)
AND
STATE OF HIMACHAL PRADESH
THROUGH SECRETARY (HOME) TO THE
GOVERNMENT OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. HEMANT VAID, ADDITIONAL ADVOCATE
GENERAL & MS DIVYA SOOD, DEPUTY ADVOCATE
GENERAL)
2. CRMP(M) NO.555/2022
Between
SANJEEV KUMAR
S/O SHRI DHIAN SINGH
R/O VILLAGE SUDHWAN, PO SUDHIAL
TEHSIL NADAUN, DISTRIC HAMIRPUR
HIMACHAL PRADESH.
.....PETITIONER
(BY MR. NIMISH GUPTA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
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(BY MR. HEMANT VAID, ADDITIONAL ADVOCATE
GENERAL & MS DIVYA SOOD, DEPUTY ADVOCATE
GENERAL)
(INSPECTOR/SHO KAMLESH KUMAR, PSI RAJAT RANA AND
.
HC ROOP LAL, POLICE STATION BALH, DISTRICT MANDI,
HIMACHAL PRADESH, ALONGWITH RECORD)
Decided on : March 30, 2022
Whether approved for reporting? Yes.
Theses petitions coming on for orders this day, the Court
passed the following:
ORDER
Both these Petitions are being disposed of by this common order, as they arise out of the same FIR and involve similar questions of fact and law.
2. Petitioners Pawan Kumar (Cr.MP(M) No.484 of 2022) and Sanjeev Kumar (Cr.MP(M) No.555 of 2022) have filed the present Petitions, under Section 438 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.'), for grant of bail, in case FIR No.73 of 2022, dated 27.2.2022, registered under Sections 420, 120B of the Indian Penal Code (hereinafter referred to as 'IPC') and 5,6 of the Prize and Money Circulation Schemes (Banking) Act, 1978, in Police Station Balh, District Mandi, Himachal Pradesh.
3. Status Report stands filed and placed on the file of Cr.MP(M) No.484/2022. Record has also been produced.
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4. Prosecution case is that on 27.2.2022, complainant Manoj Kumar submitted a complaint in Police Station Balh, stating therein that in August 2020 his friend Pawan .
Sankhyan had introduced him with a person Sushil Jaryal, and Sushil Jaryal had stated that with a Plan in Crypto Currency an US Company ONYX Trading was there which had its browser registered as OFS Trading.com. Thereafter, he had demonstrated in his Mobile Phone by logging in his ID-
ONYXHP04. He had told that there was a 105-days Plan through which on investments there will be 1½ times return within 4½ months and for that he had told about four types of investment Plans, i.e. 100 US Dollar (`8,000), 500 US Dollar (`41,000), 1000 US Dollar (`82,000/- and 5000 US Dollar (`4,10,000). Apart from it, Sushil Jaryal had also told that this amount was invested in Share Market, wherein there was hundred percent risk but the Company was extending guarantee to return the principal amount. Sushil Jaryal had also told that investment in Plan was to be made in cash and return thereof would be in Crypto Currency Exchange as BTC Dollar (Bitcoin). After telling that, Sushil Jaryal had shown receipt of BTC in Block Chain. Complainant was impressed by Sushil Jaryal to create 500 US Dollar ID-
Manoj121, below Pawan Sankhyan, for confirmation whereof ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...4...
complainant received a Mail from [email protected].
After confirmation, complainant started working in the Company and arranged meetings in Balh and Sundernagar .
area for convincing people for investment and in those meetings, head of the Company Birender Preet Singh alongwith his associates Sushil Jaryal and Pawan Sankhyan started to attend these meetings and in every meeting he had duped the people by assuring that their money shall be safe and in case of closure of Company he shall inform them six months in advance so as to enable them to withdraw their money and not to invest further. Complainant started working on the aforesaid investment Plan and created 650 IDs whereby people invested about `5 crore. Most of the people gave cash for creating IDs and some amount was deposited in accounts. Cash was taken by Birender Preet Singh himself mostly and sometimes complainant had visited to hand over the cash to him. As per complainant, about `2 crore was received by people in the shape of BTC or cash and complainant had also received `15 Lakhs, which was invested by him in the same Company and thereafter Birender Preet Singh started direct communication with the complainant, who, in March 2021, told that there was some problem in the Company, resulting into closure of BTC, which ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...5...
will be started during next month. Upon this, complainant continued to arrange meetings and investment from people in the Company, but people started to make telephonic calls .
continuously with complaint that amount was not returning but as complainant was assured by Birender Preet Singh, he continued to respond by saying that they will get money during next month and by saying so he continued to assure persons on every date. Thereafter, in August 2021, Birender Preet Singh conducted a meeting in Nangal and told that there was no return of the amount and advised to generate a ticket through the ID of the persons for withdrawal of principal amount, whereupon within two months principal amount will be received in Crypto Exchange Wallet. After one month of generating the ticket, 30% people received 5% principal amount in Crypto Exchange Wallet as BTC, but thereafter people started to complain telephonically to the complainant that they were not getting principal amount. On asking Birender Preet Singh, he conducted a meeting in the month of November at Ropar and told that in the Plan of previous Company, there was some shortcoming and told that he was coming with different Plan of one Company namely RFX Trading wherein 50% shall be invested by the people and 50% by the Company and investment shall be ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...6...
doubled within 9 months. Thereafter, persons who had invested in new Company received 5% of previous investment and two additional installments from new .
Company. It has been stated in the complaint that persons, who had invested in RFX Trading, had received a confirmation Mail from [email protected] and thereafter their ID was started. After 18.1.2022, nobody received any installment upon which complainant started calling Birender Preet Singh, on telephone, who for sometime attended his calls but thereafter stopped to receive his calls and switched off his phone.
r Lastly, prayer was made to take action against Birender Preet Singh. Upon this, FIR under Section 420 IPC has been registered.
5. Learned counsel for the petitioners have submitted that petitioners are not accused but victims in present case and they are on the same footing as the complainant is, as they were introduced with the Plan of the Company by main accused Birender Preet Singh and they were investing their amount like complainant Manoj Kumar, who, admittedly, has received amount of `15 Lakh in return from the Company and petitioners have also received return of some amount and not of the entire amount invested by them, and, therefore, they are not accused in present case but for their ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...7...
names in the complaint, submitted by complainant, they are apprehending their arrest in the present case. Further that, after grant of anticipatory bail they have joined the .
investigation and are cooperating with the Investigating Agency, rather have explained their position as victims and they are not having any role in commission of offence but they have also invested money in the Plan introduced by Birender Preet Singh, like other investors innocently.
Therefore, prayer for enlarging the petitioners on bail has been made by referring the principle "bail is rule and jail is exception".
According to them, keeping in view right to personal liberty guaranteed under Article 21 of the Constitution of India, petitioners are entitled to be enlarged on bail.
6. Referring Status Report, learned counsel for the petitioners have submitted that the petitioners were only Up-
liners, like the complainant, having no control on the money, and entire business was being controlled by Birender Preet Sngh and petitioners were not having any role in creation of Software.
7. In the Status Report, it has been stated that petitioner Sanjeev Kumar (in Cr.MP(M) No.555/2022) and Pawan Kumar (Cr.MP(M) No.484/2022) are main accused with Birender ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...8...
Preet Singh and Sanjeev Kumar was top Up-liner of MLM Plan, who, in connivance with Birender Preet Singh, had allured persons to invest in www.ofstrading.com and had .
given guarantee of return of principal amount. When there were losses to the people from investment in OFS Tading, they had allured people to invest in RFX Trading by telling the people that it was an US Company, whereas Sanjeev Kumar alongwith Birender Preet Singh had developed MLM Software at Panchkula in the Office of Wave Info Tech and as a result thereof people were made to invest `1.24 Crore.
Petitioner Sanjeev Kumar had collected money in cash from Rajeev Verma, which was collected by Rajeev Verma from the people for trading. He had been assuring the people about return of double money within 9 months whereas that amount was being used for trading in RFX Trading wherein people have been duped for `56 Lakh and during this period `90 Lakh have been found to be deposited in the account of petitioner Sanjeev Kumar, but, as of now, there is no amount in the account of petitioner Sanjeev Kumar. Lastly, it has been stated in the Status Reprot that petitioner Sanjeev Kumar has invested his amount in some Trading Platform but he is neither disclosing his Password nor registered Mail ID ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...9...
and 1/4th of `56 Lakh is to be recovered from petitioner Sanjeev Kumar.
8. According to Status Report, petitioner Pawan Sankhyan .
(in Cr.MP(M) No.484/2022) is Up-liner of complainant, in whose account `31 Lakh have been found, which were collected by him by duping Down-liners and out of that `8 Lakh have been withdrawn and `23 Lakh are yet to be recovered from him, which is money of poor people and there are `7 Lakh available in WazirX Trading Platform of the petitioner. It has been further stated that as per complaint, petitioner was active partner of main accused Birender Preet Singh to dupe the public at large and for that purpose he had introduced the complainant with Sushil Jaryal.
9. Learned Additional Advocate General has submitted that keeping in view the fact that petitioners are involved in duping large number of people for Crores of rupees and that the investigation is at initial stage, petitioners are not entitled for anticipatory bail and the bail petitions deserve to be rejected.
10. Learned Additional Advocate General has further submitted that petitioner Pawan Kumar claims himself to be a victim but till date he has not filed any complaint against the person who is real culprit according to him.
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11. There was no specific provision in Code of Criminal Procedure, 1898 empowering the Court to grant bail to the person apprehending arrest. This provision was introduced, .
for the first time, in Cr.P.C. in 1973 on the basis of recommendations of Law Commission, urging necessity of such provision.
12. This Court in Freed and other connected matters v.
State, reported in 2020(4) Shim. LC 1614, has observed as under:
"8. Section 438 of the Cr.P.C. is a right provided for a person to approach the trial Court or the Court of Session, seeking direction to enlarge him on bail, in the event of his arrest, in a case wherein he apprehends his arrest on accusation of having committed a non-bailable offence.
9. Commenting upon the right provided under Section 438 of the Cr.P.C., the Supreme Court in State of M.P. & another v. Ram Kishna Balothia & another, (1995) 3 SCC 221, has observed that it is essentially a statutory right conferred long after the coming into force of the Constitution, but with clarification that it cannot be considered as an essential ingredient of Article 21 of the Constitution.
10. Dealing with a case under unamended Section 438, a five-Judges Constitution Bench of the Apex Court in Gurbaksh Singh Sibbia & others v. State of Punjab, (1980) 2 SCC 565, has clarified few points as under:
"35. Section 438 (1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe' that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...11...
which reason it is not enough for the applicant to show that he has somesort of a vague apprehension that 'some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the .
applicant is based that he may be arrested for a non-
bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested S. 438 (1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.
36. Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for grant-in such relief. It cannot leave the question for the decision of the Magistrate concerned under S. 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.
37. Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under S. 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F. I. R. is not yet filed.
38. Fourthly, anticipatory bail can be granted even after in F. I. R. is filed, so long as the applicant has not been arrested.
39. Fifthly, the provisions of S. 438 cannot be invoked after the arrest of the accused. The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so far as the offences for which he is arrested, are concerned. After ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...12...
arrest, the accused must seek his remedy under S. 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested."
.
11. The Apex Court in Savitri Agarwal and others v. State of Maharashtra and another, (2009) 8 SCC 325, dealing with a post-amendment case, referring Constitution Bench Judgment passed in Gurbaksh Singh Sibbia's case has observed as under:
"24. While cautioning against imposition of unnecessary restrictions on the scope of the Section, because, in its opinion, over generous infusion of constraints and conditions, which were not to be found in Section 438 of the Code, could make the provision constitutionally vulnerable, since the right of personal freedom, as enshrined in Article 21 of the Constitution, cannot be made to depend on compliance with unreasonable restrictions, the Constitution Bench laid down the following guidelines, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail:
(i) Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise.
(ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere "fear" is not belief, for which reason, it is not enough for the applicant to ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...13...
show that he has some sort of vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that .
he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section.
(iii) The observations made in Balchand Jain v.
State of M.P., (1976) 4 SCC 572, regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be r read into Section 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.
(iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One such condition can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...14...
the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could .
not possibly be predicated when the order was passed.
(v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.
(vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.
(vii) The provisions of Section 438 cannot be r invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
(viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad-interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage.
(ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...15...
bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR."
12. In Siddharam Satlingappa Mhetre v. State of .
Maharashtra and others, (2011) 1 SCC 694, following Gurbaksh Singh Sibbia's case, the Supreme Court has pointed out the following factors and parameters, which can be taken into consideration at the time of dealing with anticipatory bail:
"(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or the other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the accused very carefully.
The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
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(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full .
investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of r events, the accused is entitled to an order of bail."
13. In Bhadresh Bipinbhai Sheth v. State of Gujarat and another, (2016) 1 SCC 152, the Supreme Court, in addition to reiterating the factors and parameters, delineated in the judgment in Siddharam Satlingappa Mhetre's case, has further culled out the following principles for the purpose of dealing with a case of anticipatory bail under Section 438 of the Cr.P.C.:
"25.1 The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.::: Downloaded on - 31/03/2022 20:11:46 :::CIS
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25.2 The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons .
could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
25.3 It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided.
A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.
25.4 There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.
25.5 The proper course of action on an application for anticipatory bail ought to be that after evaluating ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...18...
the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the .
anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.
25.6 It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.
25.7 In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.
25.8 Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.
25.9 No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...19...
refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case."
.
14. A three Judges Bench of the Supreme Court of India, for two divergent views in various judgments of the Supreme Court, on the issue that as to whether an anticipatory bail should be for a limited period of time or not, vide judgment in Sushila Aggarwal & Others v. State (NCT of Delhi) & another, reported in (2018) 7 SCC 731, had referred the matter to Larger Bench of the Supreme Court for authoritative decision.
15. In Special Leave Petition (Criminal) Nos.7281 of 2017 and 7282 of 2017, decided on 19.1.2020, titled as Sushila Aggarwal & Others v. State (NCT of Delhi) & another, {2020 SCC Online SC 98}, a five-Judges Bench (Constitution Bench) of the Supreme Court of India, at the time of deciding matter referred to Larger Bench of the Supreme Court for authoritative decision, has finally concluded as under:
"FINAL CONCLUSIONS:
139. In view of the concurring judgments of Justice M.R. Shah and of Justice S. Ravindra Bhat with Justice Arun Mishra, Justice Indira Banerjee and Justice Vineet Saran agreeing with them, the following answers to the reference are set out:
(1) Regarding Question No. 1, this court holds that the protection granted to a person under Section 438 Cr. PC should not invariably be limited to a fixed period; it should inure 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. (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 ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...20...
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.
140. This court, in the light of the above discussion in the two judgments, and in the light of the answers to the reference, hereby clarifies that the following need to be kept in mind by courts, dealing with applications under Section 438, Cr. PC:
(1) Consistent with the judgment in Shri Gurbaksh Singh Sibbia and others v. State of Punjab, (1980) 2 SCC 565 , when a person complains of apprehension of arrest and approaches for order, the application should be based on r concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.
(2) It may be advisable for the court, which is approached with an application under Section 438, depending on the seriousness of the threat (of arrest) to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail. (3) Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...21...
police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of .
investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified - and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of r anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.
(4) Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.
(5) Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.
(6) An order of anticipatory bail should not be "blanket" in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...22...
for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.
.
(7) An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail.
(8) The observations in Sibbia regarding "limited custody" or "deemed custody" to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e deemed custody). In such event, r there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that "if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya, AIR 1960 SC 1125."
(9) It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, noncooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...23...
(10) The court referred to in para (9) above is the court which grants anticipatory bail, in the first instance, according to prevailing authorities.
.
(11) The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam & Etc. Etc vs Ramprasad Vishwanath Gupta & Anr, (2011) 6 SCC 189; Jai Prakash Singh (supra) State through C.B.I. vs. Amarmani Tripathi, (2005) 8 SCC 21. This does not amount to "cancellation" in terms of Section 439 (2), Cr. PC.
(12) The observations in Siddharam Satlingappa r Mhetre v. State of Maharashtra & Ors, (2011) 1 SCC 694 (and other similar judgments) that no restrictive conditions at all can be imposed, while granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996) 1 SCC 667 and subsequent decisions (including K.L. Verma v. State & Anr, (1998) 9 SCC 348 ; Sunita Devi v. State of Bihar & Anr, (2005) 1 SCC 608 ; Adri Dharan Das v. State of West Bengal, (2005) 4 SCC 303 ; Nirmal Jeet Kaur v. State of M.P. & Anr, (2004) 7 SCC 558 ; HDFC Bank Limited v. J.J. Mannan, (2010) 1 SCC 679 ; Satpal Singh v. the State of Punjab, 2018 SCC Online (SC) 415 and Naresh Kumar Yadav v Ravindra Kumar, (2008) 1 SCC 632 which lay down such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled.
16. It is also settled that for granting or rejecting anticipatory bail, assigning reason(s) for that is must. The Supreme Court has set aside the anticipatory bail granted/ rejected without assigning any reason. {See: Fekan Yadav v. Satendr Yadav alias Boss Yadav alias Satendra Kumar and ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...24...
others, (2017) 16 SCC 775; Prem Giri v. State of Rajasthan, (2018) 6 SCC 571; and Prem Giri v. State of Rajasthan, (2018) 12 SCC 20}.
17. Fundamental of criminal jurisprudence postulates .
'presumption of innocence', meaning thereby that a person is believed to be innocent until found guilty and grant of bail is the general rule and putting a person in jail or in prison or in correction home, during trial, is an exception and bail is not to be withheld as a punishment and it is also necessary to consider whether the accused is a first time offender or has been accused of other offences and, if so, nature of such offence and his or her general conduct also requires consideration. Character of the complainant and accused is also a relevant factor. Reiterating these principles, the Apex Court in Dataram Singh v. State of Uttar Pradesh and another, (2018) 3 SCC 22, has also observed that however it should not be understood to mean that bail should be granted in every case, and the grant or refusal of bail is entirely within the discretion of the Judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately.
18. While consideration a bail application, it would be necessary on the part of the Court to see culpability of the accused and his involvement in the commission of organized crime, either directly or indirectly, and also to consider the question from the angle as to whether applicant was possessed of the requisite mens rea. Interim bail, pending investigation, can be granted, keeping in view the facts and circumstances of the case.
.......... ............... ............
22. Section 438 of the Cr.P.C. in itself provides certain factors, referred supra, for taking into consideration at the time of deciding bail applications under this Section, which are inclusive in nature. Some of other such principles, factors and parameters to be taken into consideration by the Court at the time of adjudicating an application under Section 438 of the Cr.P.C. have been elaborated and explained in pronouncements referred supra."
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13. In Pokar Ram v. State of Rajasthan and others, (1985) 2 SCC 597, the Supreme Court had observed that relevant considerations governing the court's decision in granting .
anticipatory bail under Section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher Court and bail is sought during the pendency of the appeal.
These situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the Courts would exercise its discretion, one way or the other, are substantially different from each other.
Observations in Para-6, based on Gurbaksh Singh Sibbia, (1980) 2 SCC 565, are as under:
"6. The decision of the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565: (AIR 1980 SC 1632) clearly lays down that 'the. distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.' Unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued he shall be released on bail. A direction under S. 438 is intended to confer conditional immunity from the touch as envisaged by S. 46(1) or confinement. In Para 31, Chandrachud, CJ clearly demarcated the distinction between the relevant considerations while examining an application ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...26...
for anticipatory bail and an application for bail after arrest in the course of investigation. Says the learned Chief Justice that 'in regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object .
being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant, on bail in the event of his arrest would generally be made. It was observed that 'it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no. fear that the applicant will abscond.' Some of the relevant considerations which govern the discretion, noticed therein are the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the State", are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.' A caution was voiced that 'in the evaluation of the consideration whether the applicant is likely to abscond, there can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it'."
14. In P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24, the Supreme Court has observed as under:
"Grant of anticipatory bail in exceptional cases
69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...27...
application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and .
hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.
70. On behalf of the appellant, much arguments were advanced contending that anticipatory bail is a facet of Article 21 of the Constitution of India. It was contended that unless custodial interrogation is warranted, in the facts and circumstances of the case, denial of anticipatory bail would amount to denial of the right conferred upon the appellant under Article 21 of the Constitution of India.
71. rArticle 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law. However, the power conferred by Article 21 of the Constitution of India is not unfettered and is qualified by the later part of the Article i.e. "....except according to a procedure prescribed by law."
In State of M.P. and another v. Ram Kishna Balothia, (1995) 3 SCC 221, the Supreme Court held that the right of anticipatory bail is not a part of Article 21 of the Constitution of India and held as under: (SCC p.226, para 7) "7. ........We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed:
'We agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised.' In the light of this recommendation, Section 438 was incorporated, for the first time, in the Criminal ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...28...
Procedure Code of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially .
a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article
21." (emphasis supplied)
72. We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights -
safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India.
73. The learned Solicitor General has submitted that depending upon the facts of each case, it is for the investigating agency to confront the accused with the material, only when the accused is in custody. It was submitted that the statutory right under Section 19 of PMLA has an in-built safeguard against arbitrary exercise of power of arrest by the investigating officer. Submitting that custodial interrogation is a recognised mode of interrogation which is not only permissible but has been held to be more effective, the learned Solicitor General placed reliance upon State v. Anil Sharma, (1997) 7 SCC 187; Sudhir v. State of Maharashtra, (2016) 1 SCC 146; and Directorate of Enforcement v. Hassan Ali Khan, (2011) 12 SCC 684.
74. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...29...
information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused .
as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State v. Anil Sharma, (1997) 7 SCC 187, the Supreme Court held as under: (SCC p.189, para 6) "6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation- oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."
75. Observing that the arrest is a part of the investigation intended to secure several purposes, in Adri Dharan Das v. State of W.B., (2005) 4 SCC 303, it was held as under: (SCC p.313, para 19) "19. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...30...
circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with .
the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code."
76. In Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, the Supreme Court laid down the factors and parameters to be considered while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made and that the court must evaluate the available material against the accused very carefully. It was also held that the court should also consider whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
77. After referring to Siddharam Satlingappa Mhetre and other judgments and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar, (2012) 4 SCC 379, the Supreme Court held as under: (SCC p.386, para 19) "19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...31...
in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran, (2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Husain .
Mohd. S. Husain, (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal, (2008) 13 SCC 305.)""
Economic offences
78. Power under Section 438 Cr.P.C. being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain, (1998) 2 SCC 105, it was held that in economic offences, the accused is not entitled to anticipatory bail.
79. The learned Solicitor General submitted that the "Scheduled offence" and "offence of money laundering" are independent of each other and PMLA being a special enactment applicable to the offence of money laundering is not a fit case for grant of anticipatory bail. The learned Solicitor General submitted that money laundering being an economic offence committed with much planning and deliberate design poses a serious threat to the nation's economy and financial integrity and in order to unearth the laundering and trail of money, custodial interrogation of the appellant is necessary.
80. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community, in State of Gujarat v.
Mohanlal Jitamalji Porwal and others, (1987) 2 SCC 364, it was held as under:-
"5. .....The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...32...
community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even- handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye .
unmindful of the damage done to the national economy and national interest......"
81. Observing that economic offences constitute a class apart and need to be visited with different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439, the Supreme Court held as under:-
"34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep- rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.
35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations."
82. Referring to Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria, (1998) 1 SCC 52, in Enforcement Officer, Ted, Bombay v. Bher Chand Tikaji Bora and others, (1999) 5 SCC 720, while hearing an appeal by the Enforcement Directorate against the order of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail.
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83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he .
is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent-
Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail."
15. In Mangal Singh Negi v. Central Bureau of Investigation, reported in 2021(2) Shim. LC 860 : 2021(2) Him L.R. (HC) 917, this Court observed as under:
"19. Provisions related to information to the Police and their powers to investigate have been incorporated in Sections 154 to 176 contained in Chapter-XII of the Code of Criminal Procedure ('Cr.P.C.' for short).
20. Section 156 Cr.P.C. empowers Police Officer to investigate in cognizable offences without order of the Magistrate and Section 157 prescribes procedure for investigation, which also provides that when an Officer Incharge of a Police Station has reason to suspect the commission of an offence, which he is empowered to investigate under Section 156, he, after sending a report to the Magistrate, shall proceed in person or shall depute one of his subordinate Officers as prescribed in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender.
21. Chapter V of the Cr.P.C. deals with provisions related to arrest of persons, wherein Section 41 also, inter alia, provides that any Police Officer may, without an order from Magistrate, and without a warrant, arrest any person against whom reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...34...
punishable with imprisonment which may be less than seven years or may extend to seven years, subject to condition that he has reason to believe, on the basis of such complaint, information, or suspicion, that such person has committed the said offence and also if the Police Officer is .
satisfied of either of the conditions provided under Section 41(1)(b)(ii), which also include that if such arrest is necessary "for proper investigation of the offence".
Whereas Section 41(1)(ba) empowers the Police Officer to make such arrest of a person against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years or with death sentence and the Police Officer has reason to believe, on the basis of that information, that such person has committed the said offence, and for commission of such offence no further condition is required to be satisfied by the Police Officer. Therefore, Police Officer/Investigating Officer is empowered to arrest the offender or the suspect for proper investigation of the offence as provided under Section 41 read with Section 157 Cr.P.C.
22. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Arrest of an offender during investigation, as discussed supra, is duly prescribed in Cr.P.C.
23. At the same time, Cr.P.C. also contains Chapter XXXIII, providing provision as to bail and bonds, which empowers the Magistrate, Sessions Court and High Court to grant bail to a person arrested by the Police/Investigating Officer in accordance with provisions contained in this Chapter. This Chapter also contains Section 438 empowering the Court to issue directions for grant of bail to a person apprehending his arrest. Normally, such bail is called as "Anticipatory Bail". Scope and ambit of law on Anticipatory Bail has been elucidated by the Courts time and again.
24. Initially, provision for granting Anticipatory Bail by the court was not in the Cr.P.C., but on the recommendation of the Law commission of India in its 41st Report, the Commission had pointed out necessity for introducing a set provision in the Cr.P.C. enabling the High Court and Court of ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...35...
Session to grant Anticipatory Bail, mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. It was also observed by the Commission that with the .
accentuation of political rivalry, this tendency was showing signs and steady increase and further that where there are reasonable grounds for holding that the person accused of an offence is not likely to abscond or otherwise misuse his liberty, while on bail, there seems no justification to require him to submit to custody, remain in prison for some days and then apply for bail. On the basis of these recommendations, provision of Section 438 Cr.P.C. was included in Cr.P.C. as an antidote for preventing arrest and detention in false case. Therefore, interpretation of Section 438 Cr.P.C., in larger public interest, has been done by the Courts by reading it with Article 21 of the Constitution of India to keep arbitrary and unreasonable limitations on personal liberty at bay. The essence of mandate of Article 21 of the Constitution of India is the basic concept of Section 438 Cr.P.C.
25. Section 438 Cr.P.C. empowers the Court either to reject the application forthwith or issue an interim order for grant of Anticipatory Bail, at the first instance, after taking into consideration, inter alia, the factors stated in sub-section (1) of Section 438 Cr.P.C. and in case of issuance of an interim order for grant of Anticipatory Bail the application shall be finally heard by the Court after giving reasonable opportunity of being heard to the Police/ Prosecution.
Section 438 Cr.P.C. prescribes certain factors which are to be considered at the time of passing interim order for grant of Anticipatory Bail amongst others, but no such factors have been prescribed for taking into consideration at the time of final hearing of the case. Undoubtedly, those factors which are necessary to be considered at the time of granting interim bail are also relevant for considering the bail application at final stage.
26. A balance has to be maintained between the right of personal liberty and the right of Investigating Agency to investigate and to arrest an offender for the purpose of investigation, keeping view various parameters as elucidated by the court in Gurbaksh Singh Sibbia v. State of ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...36...
Punjab, (1980) 2 SCC 565 and Sushila Aggarwal & others v. State (NCT of Delhi) & another, (2018) 7 SCC 731 cases and also in other pronouncements referred by learned counsel for CBI.
.
27. The Legislature, in order to protect right of the Investigating Agency and to avoid interference of the Court at the stage of investigation, has deliberately provided under Section 438 Cr.P.C. that High Court and the Court of Session are empowered to issue direction that in the event of arrest, an offender or a suspect shall be released on bail. The Court has no power to issue direction to the Investigating Agency not to arrest an offender. A direction under Section 438 Cr.P.C. is issued by the Court, in anticipation of arrest, to release the offender after such arrest. It is an extraordinary provision empowering the Court to issue direction to protect an offender from detection. Therefore, this power should be exercised by the Court wherever necessary and not for those who are not entitled for such intervention of the Court at the stage of investigation, for nature and gravity of accusation, their antecedents or their conduct disentitling them from favour of Court for such protection.
28. Where right to investigate, and to arrest and detain an accused during investigation, is provided under Cr.P.C., there are provisions of Articles 21 and 22 of the Constitution of India, guaranteeing protection of life and personal liberty as well as against arrest and detention in certain cases. It is well settled that interference by the Court at the investigation stage, in normal course, is not warranted. However, as discussed supra, Section 438 Cr.P.C. is an exception to general principle and at the time of exercising power under Section 438 Cr.P.C., balance between right of Investigating Agency and life and liberty of a person has to be maintained by the Courts, in the light of Fundamental Rights guaranteed under Articles 21 and 22 of the Constitution of India, but also keeping in mind interference by the Court directing the Investigating Officer not to arrest an accused amounts to interference in the investigation.
29. Though bail is rule and jail is exception. However, at the same time, it is also true that even in absence of necessity of custodial interrogation also, an accused may not be ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...37...
entitled for anticipatory bail in all eventualities. Based on other relevant factors, parameters and principles enumerated and propounded by Courts in various pronouncements, some of which have also been referred by learned counsel for CBI, anticipatory bail may be denied to .
an accused. Requirement of custodial interrogation is not only reason for rejecting bail application under Section 438 Cr.P.C.
30. Nature and gravity of offence, extent of involvement of petitioners, manner of commission of offence, antecedents of petitioners, possibility of petitioners fleeing from justice and impact of granting or rejecting the bail on society as well as petitioner, are also amongst those several relevant factors which may compel the Court to reject or accept the bail application under Section 438 Cr.P.C. It is not possible to visualize all factors and enlist them as every case is to be decided in its peculiar facts and circumstances."
16. At this stage, learned counsel for petitioner Sanjeev Kumar has submitted that the petitioner has also filed a complaint with SHO, Police Station Hamirpur, Himachal Pradesh, on 28.2.2022, but till date FIR has not been registered in that complaint. Copy of the complaint has been annexed with the present petition.
17. Learned Additional Advocate General is directed to supply a copy of the complaint to the Police Officer present in the Court, enabling him to verify and deal with the same in accordance with law.
18. SHO, Police Station Hamirpur, is also directed to take appropriate necessary action on the complaint filed by the petitioner, as according to law on receipt of a complaint, the ::: Downloaded on - 31/03/2022 20:11:46 :::CIS Cr.MPs(M) No.484&555/2022 ...38...
police has only two options either to record it in Daily Diary Register or to register FIR. No third way is there for keeping it in file or pending. Therefore, learned Additional Advocate .
General is directed to communicate this order to the SHO, Police Station Hamirpur, Himachal Pradesh, directing him to take appropriate action, in accordance with law, on the complaint, if any, submitted by petitioner Sanjeev Kumar.
19. Without commenting upon the merits of the rival contentions, but taking into consideration nature and gravity of offence, initial stage of investigation, and the factors and parameters to be considered at the time of adjudicating an application for anticipatory bail, as propounded by the Courts, including the Supreme Court, balancing the personal interest vis-à-vis public interest, I am of the opinion that no case for grant of anticipatory bail is made out.
Hence, in view of the above discussion, the bail petitions are dismissed and disposed of.
( Vivek Singh Thakur )
March 30, 2022(sd) Judge.
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