Allahabad High Court
Satyendra Kumar Verma vs State Of U.P. And Another on 25 January, 2021
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgement Reserved on 06.01.2021 Judgement Delivered on 25.01.2021 Court No. - 76 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 5805 of 2020 Applicant :- Satyendra Kumar Verma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anil Kumar,Mohit Singh Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri V.P. Srivastava, learned Sr. counsel assisted by Sri Mohit Singh, learned counsel for the applicant and Sri Rishi Chaddha, learned A.G.A. for the State.
2. This is second Anticipatory Bail Application moved by the applicant with a prayer to release the applicant on anticipatory bail in CNR (UPBR01-003150-2020) in Case No. 259 of 2020 (State Vs. Satyendra Kumar Verma) arising out of Case Crime No. 0493 of 2019 under Section 7 of Prevention of Corruption Act, 1988, P.S. Kotwali, District, Bareilly. The first Anticipatory Bail Application was allowed by this Court vide order dated 13.11.2019 passed in Crl. Misc. Bail Application No. 48764 of 2019 whereby the applicant was directed to be released on Anticipatory Bail till submission of police report, if any, under Section 173 (2) Cr.P.C. before the Competent Court on his furnishing a personal bond of Rs. 50,000/- and two sureties each in the like amount to satisfaction of S.H.O. of police station concerned with the conditions mentioned in the said order.
3. It is submitted by learned counsel for the applicant in the Affidavit filed in support of this Application that the Investigating Officer without investigating the case properly, has submitted charge-sheet against the applicant and the trial court after taking cognizance, has issued summons against him, hence he apprehends his arrest on accusation of aforesaid non bailable offence. The apprehended accusation does not fall under the offences provided under sub-section 6 of Section 438 Cr.P.C. Second Anticipatory Bail Application is maintainable on behalf of applicant as there is a change in fact situation as well as situation of law. The first Anticipatory Bail Application was filed by the applicant after registration of F.I.R. while the present application is being filed after submission of charge-sheet by the I.O. and after cognizance having been taken by the court below. Further it is mentioned that when the order dated 13.11.2019 was passed, question with regard to the life of an order passed in respect of Anticipatory Bail was not decided by Hon'ble Apex Court as judgement of the Constitution Bench which answered the aforesaid question was reserved. However, the High Court as well as Courts of Sessions throughout India were passing orders granting Anticipatory Bail till conclusion of the investigation i.e. till submission of police report under Section 173(2) Cr.P.C., in view of the judgement of the three judge Bench of the Supreme Court in Crl. Appeal No. 462 of 2018 (Satpal Singh Vs. State of Punjab) dated 27.03.2018 reported in (2018) SCC Online SC 415. The aforesaid view has been followed by this Court in Crl. Misc. Bail Application No. 53729 of 2019 (Vinod Kumar Vs. State of U.P. and another). Copies of the orders passed by the Hon'ble Apex Court dated 15.05.2018 and 23.10.2019, whereby questions for Constitution Bench were framed and the judgement was reserved, have been collectively annexed as Annexure-2. The said full Bench decided the question and laid down that an order whereby Anticipatory Bail was granted, cannot be restricted or limited except for special reason. It was held that general rule is that an order whereby anticipatory bail is granted, should not limit the period of bail, the Court can limit the aforesaid period for reasons to be assigned. The Constitution Bench has in the said order dated 29.01.2020, reiterated the version of earlier Constitutional Bench of Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565. The order dated 13.11.2019 does not assign any reason for limiting the Anticipatory Bail order till submission of police report under Section 173 (2) Cr.P.C. The Constitutional Bench has further held that the Anticipatory Bail Application can be filed at any stage, hence on the aforesaid ground, the instant second Anticipatory Bail Application is being moved. Further it is mentioned that the full Bench of Rajasthan High Court rendered judgement in Case of Ganesh Raj Vs. State of Rajasthan and others reported in 2005 CRLJ 2086 (FB) deciding question as to when second or subsequent Anticipatory Bail Application is maintainable and it was held that the second and subsequent Bail Application under Section 438 Cr.P.C. can be filed if there is a change in fact situation or in law, which requires the earlier view being interfered with or where the earlier finding has become obsolete. The applicant is approaching this Court directly as full Bench of Rajasthan High Court held that second or subsequent Anticipatory Bail Application is maintainable rider being that under no circumstance, the second or subsequent Anticipatory Bail Application would be entertained by Sessions Court or Additional Sessions Judge. In the present case, the first Anticipatory Bail Application was rejected by Sessions Court but the Anticipatory Bail Application is allowed by this Court.
4. Further it is mentioned that in the instant case, the incident is said to have taken place on 20.09.2019 at 12:40 p.m. for which F.I.R. was lodged on the same day at 07:02 p.m. According to prosecution case, co-accused, Rajiv Kumar Saxena was arrested by officials of the Anti-Corruption Bureau, Bareilly while he was allegedly accepting Rs. 15000/- from complainant, Kunal Rai. After the arrest of co-accused, Rajiv Kumar Saxena, the I.O. recovered file pertaining to the complainant, Kunal Rai from the table of Rajiv Kumar Saxena but nothing was found from the house of Rajiv Kumar Saxena, thereafter statement of Rajiv Kumar Saxena was allegedly recorded by the I.O. which was in contradiction with the averments made in the F.I.R. In the F.I.R. it was the applicant who was said to have called the complainant whereas in the statement of Rajiv Kumar Saxena, it was stated that it was the complainant who had met the co-accused. Statements of all the police witnesses, who are witnesses of the alleged recovery-memo, are not filed as they have given the same version and seek liberty to file them, if directed by Court. The relevant statements of complainant and other witnesses have been annexed. I.O. has recorded the information submitted by Regional Manager, Bareilly to the effect that according to service book of the applicant, no punishment was awarded to the applicant and that applicant was transferred from Bareilly to Nichlaul Depot, Gorakhpur region on 27.09.2019 and was relieved on 30.09.2019. Investigating Officer concluded investigation against the co-accused, Rajiv Kumar Saxena on 4.11.2019 and submitted charge-sheet against him keeping the investigation pending against the applicant. The investigation was continued against the applicant and on 26.11.2019, Investigating Officer recorded that reply to his notice dated 21.10.2019 had been received vide letter dated 11.11.2019 to the effect that applicant had not joined at the place of his positing. Thereafter, he contacted Regional Manager, Gorakhpur on his mobile and came to know that applicant had been transferred from Nichlaul to Noida depot and then notice was sent to Regional Manager, Noida for recording statement of the applicant. The I.O. had received a letter from Regional Manager, Noida to the effect that he had directed the applicant to get his statement recorded. On 28.12.2019, I.O. reached the office of Regional Manager, Noida but nothing could be found about applicant, however it was informed that applicant was on medical leave since 18.12.2019. On 14.01.2020, Investigating Officer received orders dated 13.11.2019 and 7.01.2020 passed by this Court, then the applicant appeared before the I.O. on 23.01.2020 and his statement was allegedly recorded in which he did not confess his guilt and I.O. on the said date did not examine the applicant and recorded his statement on his own. On 10.02.2020, applicant was summoned by I.O. along with two sureties to P.S., Kotwali, Bareilly where he has submitted his personal bond and sureties and was released on Anticipatory Bail. The sanction to prosecute the applicant was granted vide order dated 20.02.2020 in an illegal manner, copy of sanction order dated 20.02.2020 is annexed as Annexure-21. After the so called investigation, the I.O. submitted charge-sheet against the applicant bearing no. 8A of 2020 on 5.03.2020, which is Annexure-22 and the Magistrate took cognizance thereon vide order dated 20.03.2020 and summons were issued against him. Pursuant to the said order dated 20.03.2020, applicant is required to appear before the court below. Since the order dated 13.11.2019 passed by this Court was for a limited period up to the submission of police report, the applicant would be taken into custody as and when he appears before the court below. On account of lockdown, due to Covid Pandemic, the trial court did not proceed against the applicant, however cognizance has been taken and summons has already been issued against the applicant. He would be required to appear before the trial court in near future and when he appears, he would be asked to obtain bail. Since the offence alleged against the applicant is Non Bailable, he would be sent to jail, hence he has serious apprehension for being sent to jail because of which this instant Anticipatory Bail has been moved. Further he has mentioned the grounds which were available at the time of consideration of his first Anticipatory Bail Application were still available to him. The evidence and the material which was available against the applicant when this Court passed order dated 13.11.2019, is the same evidence and material which was available on record against the applicant. Applicant did not misuse the liberty granted to him and cooperated with the investigation. Moreover, the I.O. did not apply for N.B.W. against him although the I.O. has observed at few places in the case-diary that the applicant was not cooperating with the investigation but the said observations are not based on material. On the contrary, the material and records show that the applicant was transferred twice during investigation and was not well and it has also come in evidence that he was pursuing his legal remedies, therefore, it is apparent that he has participated with the investigation and submitted himself before the I.O. on two occasions. I.O. has not recorded in case-diary that he tried to contact the applicant on his mobile and no response was received.
5. Prosecution case is to the effect that co-accused, Rajiv Kumar Saxena was arrested while accepting bribe of Rs. 15000/- purportedly to be given to the applicant. However, on behalf of co-accused, Rajiv Kumar Saxena, it was specifically stated before the court below that his application could tell that complainant, Kunal Rai had repaid the loan taken by him. Co-accused did not make any allegation against the applicant while putting his case before the court below. Co-accused, Rajiv Kumar Saxena has been bailed out by this Court. The said co-accused has also not made any allegation against the applicant in his statement recorded by the enquiry officer in departmental proceedings., I.O. did not fairly investigate the case nor did he try to find out the truth. No recovery has been made from the applicant. False allegation has been levelled against the applicant that he was asking for bribe to exonerate the complainant from the departmental proceedings. As a matter of fact, the inquiry had not commenced and even enquiry officer was not appointed on the date when the complaint was made as such there was no occasion for the applicant to demand any illegal money from the complainant.
6. The independent witnesses did not see the applicant asking for money to be given by the complainant. There is no requirement of any custodial interrogation as investigation is complete. Applicant has no criminal antecedents. There are no chances of his absconding. So far, there is no proclamation issued against him under Section 82 Cr.P.C. and he is ready to furnish bail bonds and sureties to the satisfaction of this Court. There is no apprehension that applicant would tamper with the prosecution witnesses as he belongs to a reputed family having good social standing. Departmental proceeding against the applicant is still pending in which he is cooperating.
7. Learned A.G.A. has vehemently opposed the maintainability of second Anticipatory Bail Application and has placed reliance upon judgement delivered by Patna High Court reported in 2011 SCC Online Pat 851 in case of Bishundeo Sahu Vs. State of Bihar and Others delivered on 20.01.2011 in which the matters were referred by the Hon'ble Single Judge for deciding the issue as to whether, if, the previous Anticipatory Bail order was for a limited period till submission of charge-sheet and the accused after grant of Anticipatory Bail had surrendered before the Court for furnishing bail bonds, whether in such cases, on submission of charge-sheet, second Anticipatory Bail Application is maintainable, or the applicant will have to surrender and obtain an order of bail under Section 437 or 439 Cr.P.C. and the opinion expressed in this case was that in no case, second Anticipatory Bail Application at the instance of the same accused person is maintainable.
8. Learned A.G.A. has vehemently argued that the reliance is placed heavily by the learned counsel for the applicant upon the judgement of Single Judge of this Court passed in Crl. Misc. Bail Application No. 8285 of 2020 (Adil Vs. State of U.P.) on 8.12.2020, which is per incuriam, in which Hon'ble Single Judge has held in para 11 that "if the facts of the given case make the applicant entitled for grant of Anticipatory Bail, even after submission of charge-sheet against him and cognizance of the same by the Court, the second Anticipatory Bail would be maintainable before the High Court even though the applicant was earlier granted Anticipatory Bail till the submission of charge-sheet by the High Court". The said finding appears to have been given based on judgement passed by Patna High Court in Anirudh Prasad @ Sadhu Yadav Vs. State of Bihar 2016 SCC OnLine Pat 5149 dated 22.05.2006 which was set-aside by the Division Bench of Patna High Court vide judgement and order dated 20.01.2011 passed in Bishundeo Sahu's case (Supra). He has drawn attention of the Court towards para 42 of the said judgement of the Division Bench in which it has observed " in my considered view, the judgement in Anirudh Prasad Yadav @ Sadhu Yadav (Supra) rendered by learned single Judge was not laying down the correct proposition of law and appears a thoroughly bad law which is hereby overruled". He has further emphasised that without referring the said judgement of Division Bench of Patna High Court dated 20.01.2011 passed in Bishundeo Sahu's case (Supra), the learned Single Judge of this Court has gone on to rely upon the judgement delivered in Anirudh Prasad's case (Supra), therefore, the same should be held to be per incuriam. Further it was argued by learned A.G.A. that in the same judgement, learned single Judge has also referred to the judgment of Apex Court passed in Bharat Chaudhary and Another Vs. State of Bihar and another (2003) 8 SCC page 77 dated 8.10.2003 in which case, the question as to whether second Anticipatory Bail Application after allowing the first Anticipatory Bail Application granting relief till submission of police report under Section 173 (2) Cr.P.C. would lie or not subsequent to submission of charge-sheet by investigating agency, was not involved. In this case, the appellants before the Apex Court were husband and wife who were made accused by their daughter-in-law of offences punishable under Sections 504, 498-A and 406 I.P.C. and Section ¾ of Dowry Prohibition Act, their Anticipatory Bail Application under Section 438 Cr.P.C. was rejected by Patna High Court. They filed the Appeal before the Apex Court by Special Leave. After hearing the parties, the Apex Court was inclined to grant Anticipatory Bail but the respondent State raised legal objection that since the trial court has taken cognizance of the offence, Section 438 Cr.P.C. could not be used for granting Anticipatory Bail even by the Supreme Court and the only remedy available to the appellants was to approach the trial court and surrender and, thereafter apply for regular bail under Section 439 Cr.P.C. Rejecting the State's objection and allowing the Appeal, the Apex Court held that the object of Section 438 I.P.C. is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of Anticipatory Bail and the fact of taking cognizance of filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of Anticipatory Bail. The Courts i.e. Court of Sessions, High Court or Supreme Court have the necessary power vested in them to grant Anticipatory Bail in Non Bailable Offences under Section 438 Cr.P.C. even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the Courts to do so.
9. Now in view of the above objection by learned A.G.A. and the law cited by him, this Court has to analyse the position of law viz-a-viz the judgements relied upon by the learned counsel for the applicant in order to reach the correct position of law and to see as to whether in the present case, second Anticipatory Bail Application would be entertainable/maintainable.
10. First of all, reliance placed by learned counsel for the applicant on the Adil's case (Supra) is being taken into consideration.
11. Learned Single Judge of this Court has referred to the legal position in para nos. 6, 7, 8, 9, 10 and 11 which are reproduced for the sake of convenience herein below as it is:
"6. Learned Senior Counsel for the applicant has relied upon the judgment of the Patna High Court in the case of Anirudh Prasad @ Sadhu Yadav vs. The State of Bihar dated 22, May, 2006 wherein the Patna High Court had earlier granted anticipatory bail to the applicant till the submission of police report. Later when the charge sheet was filed against him he moved second anticipatory bail application for granting him anticipatory bail till the conclusion of trial. The prayer was turned down by Patna High Court but the Apex Court did not agreed to the same and directed the Patna High Court to consider the bail application of the applicant afresh. The Patna High Court found that the power to grant anticipatory bail does not comes to an end by mere submission of charge sheet against the applicant. After considering the merits of the case anticipatory bail was granted to the applicant by the Patna High Court till the conclusion of trial.
7. Next reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Bharat Chaudhary & Another vs. State of Bihar & Another (2005) 8 SCC 77 dated 08.10.2003 wherein the Apex Court held that there is no restriction on the power of the courts empowered to grant anticipatory bail under Section 438 Cr.P.C to prevent undue harassment of accused persons by pre-trial arrest and detention. It can be granted even when cognizance on charge sheet has been taken.
8. Learned Senior Counsel for the applicant has further relied upon the judgment of Madhya Pradesh High Court in the case of Imratlal Vishwakarma and Others vs. State of Madhya Pradesh dated 09.12.1996, 1996(0) MPLJ 662 and the judgment of the Supreme Court in the case of Ravindra Saxena vs. State of Rajasthan (2010) 1 SCC 684 dated 15.12.2009 where the second anticipatory bail application of the applicant was dismissed by the High Court but the Apex Court disapproved the same and granted liberty to the applicant to make third anticipatory bail application before the High Court. The anticipatory bail application of the applicant in that case was rejected only because challan was presented against him before the court.
9. Final reliance has been placed on the judgment of the Apex Court of Jagmohan Bahl and Another vs. State (NCT of Delhi) and Another (2014) 16 SCC 501 which does not addresses the controversy involved in the present bail application.
10. Learned A.G.A has relied upon the case of Salauddin Abdul Samad Shaikh vs. State of Maharashtra (1996) VI SCC 667 wherein the Apex Court held that when the anticipatory bail is granted by the court of Session or the High Court, it is at the stage of incomplete investigation. The nature of offence against the offender is not before the court, therefore, anticipatory bail order should be of limited duration only and after the aforesaid duration expires the matter should be left for the regular court to deal with it and the court granting anticipatory bail should not substitute itself for the original court. He has also relied upon the judgment of this court in Vinod Kumar vs. State of U.P. & Another 2019 (12) ADJ 495 and has submitted that this court has mandated that interim bail would continue only till submission of charge sheet before the court.
11. After considering the rival contentions this court finds that the Apex Court in the case of Bharat Chaudhary and Another vs. State of U.P. and Another (Supra) has considered the judgment of Salauddin Abdul Samad Shaikh (supra) and has held that it does not imposes any restriction or absolute bar on the court granting anticipatory bail even in cases where either cognizance has been taken or a charge sheet has been filed. The Apex Court has found that it only lays down a guideline that while considering prima facie case against an accused, the factum of cognizance having been taken and filing of charge sheet would be of some assistance for coming to the conclusion whether the accused is entitled for anticipatory bail or not. Now this judgment stands overruled by the judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98. Regarding the judgment of this court in Vinod Kumar (Supra) the observations were that till such time this issue is decided by the larger Bench the anticipatory bails shall continue till summoning of accused on the basis of police report submitted under Section 173(2) Cr.P.C. The issue stands decided 5 Judge Bench of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98. The Apex Court has settled the controversy finally by holding the anticipatory bail need not be of limited duration invariably. In appropriate case it can continue upto conclusion of trial. Therefore after considering the authorities cited on behalf of the learned Senior Counsel for the applicant this court is of the view that power to grant anticipatory bail vested in High Court does not comes to an end after submission of charge sheet. If the facts of the given case make the applicant entitled for grant of anticipatory bail, even after submission of charge sheet against him and cognizance of the same by the Court, the second anticipatory bail would be maintainable before the High Court even though the applicant was earlier granted anticipatory bail till the submission of charge sheet by the High Court."
12. Since the above-mentioned judgement has reference of Anirudh Prasad's Case (Supra) which has also been discussed and taken into consideration by Hon'ble Division Bench of Patna High Court in Bishundeo Sahu's case (Supra), it would be pertinent here to see the reasoning adopted by the Division Bench in not finding the law laid down in Anirudh Prasad's Case (Supra) to be a good law, and the reasoning also requires to be seen as to why they have arrived on conclusion that in case first Anticipatory Bail Application is allowed to an accused granting relief of anticipatory bail only up to the period of submission of police report under Section 173 (2) Cr.P.C. and, thereafter when charge-sheet is submitted by the I.O., why the said Court found that the Second Anticipatory Bail Application would not be entertainable.
13. In the said Division Bench Judgement, first Judge has given the reasoning in para nos. 16 to 19 and also has issued direction as to what was required to be done by the petitioners in that case. For the ready reference, the same are being reproduced herein below.
"16. On account of certain changes and amendment brought in Section 438 Cr.P.C. in case of grant of anticipatory bail, the petitioners-accused has to surrender before the Court concerned. In case where anticipatory bail has been granted for a limited period, till submission of the charge-sheet, the petitioner again has to make a fresh prayer for bail, since, already on earlier occasion he had to surrender before the concerned Court and had furnished bail bond, so on submission of charge-sheet, the first prerequisite for grant of anticipatory bail i.e. the person concerned must not have been arrested or surrendered before any Court, is not available to him. He has lost the requisite criteria of granting anticipatory bail, in that case except the surrendering before the competent court for grant of regular bail, he is left with no other option.
17. A similar matter was considered in case of bailable offence. A person who is named as accused for bailable offences and granted bail by the police on execution of bail bond. Subsequently on completion of investigation, if the charge-sheet is submitted for non-bailable offence or despite submission of charge-sheet for bailable offence, cognizance is taken by the Magistrate for non-bailable offence, which he can make prayer for anticipatory bail. This issue was considered and decided in the case of Mahendra Pd. Singh v. State of Bihar [2004 (3) PLJR 491]. In this decision it was held that once the bail had been granted and bail bond executed, at a later stage, if the offence is treated as non-bailable, the applicant cannot file his application for grant of anticipatory bail. The only remedy available to him is to surrender before the concerned Court. The Court concerned will grant him bail without taking into custody, considering his conduct while on police bail and also that he has not misused the privilege of bail.
18. In case of non-bailable offences also, similar view can be taken, in case anticipatory bail was granted for a limited period till submission of the charge-sheet. Since the accused has already surrendered before the Court below for grant of anticipatory bail and has executed bail bond, as such at his instance another anticipatory bail application cannot be maintainable. He will have to surrender and pray for regular bail under Section 439 of the Code of Criminal Procedure. The Court concerned, instead of taking him into custody, considering the previous order of anticipatory bail passed in his favour and also that he has not misused the privilege or his conduct is such that despite submission of charge-sheet or order taking cognizance, he is capable of granting bail, will grant him bail. In case where the anticipatory bail granted for limited period has been misused, the concerned Court will have discretion, either to grant or refuse the bail. In case of non-bailable offence, anticipatory bail, if granted for limited period, the Court concerned will pass order in similar manner as laid down in the case of Mahendra Pd. Singh (supra). In no case, second anticipatory bail application at the instance of such accused person is maintainable.
19. So far petitioners in these Criminal Miscellaneous Applications are con cerned, they are also directed to surrender before the concerned Court within four weeks from the date of this order. In case these petitioners will surrender and file their applications for bail under Section 439 of the Code of Criminal Procedure, the concerned Court will pass an order in the similar manner as has been decided in the case of Mahendra Prasad Singh v. State of Biharreported in 2004 (3) PLJR 491."
14. The perusal of the above reasoning would show that learned Judge has found that when Anticipatory Bail is allowed to an accused for a limited period i.e. till submission of charge-sheet, he has to make a fresh prayer for regular bail, since, already on earlier occasion, he had to surrender before the concerned court and furnish bail bonds, so on submission of charge-sheet, the first requisite for grant of Anticipatory Bail i.e. the person concerned must not have been arrested or surrendered before any Court is not available to him, therefore, he lost the requisite criteria of Anticipatory Bail being granted, and he has no option available except to surrender before the competent Court for grant of regular bail.
15. It is also clear from the reading of this para cited above that the learned Judge has held that since the accused earlier had already surrendered before the Court below for grant of Anticipatory Bail and had executed bail bonds, as such, at his instance, another Anticipatory Bail Application cannot be maintainable.
16. Now the second Hon'ble Judge of this Bench has also held the same opinion that second Anticipatory Bail Application in such a situation is not maintainable but has written his own judgement in which he has expressed his logic/reasoning as to why he was having that opinion which is contained mainly in para 38, 39, 40, 41 and 42 which are quoted below for the sake of convenience:-
38. Thus, the bond has to be executed by the accused after appearing and undertaking before the court that he shall attend the court at the time and place mentioned in the bond and shall continue to so attend until otherwise directed by the Police Officer or court, as the case may be. It hardly requires to be noted that the accused could execute the bond only when he had appeared before the court and had submitted himself to its custody. The word ''custody' does not appear either in the provision of Section 438 Cr.P.C. or under Section 441 Cr.P.C. extracted above. However, the same appears in Sections 437 and 439. Cr.P.C. The very Section 441 presupposes that no bond could be executed by an accused unless he appears before the court to execute the bond which has to be accepted by it. Not only that, the very provision also indicates that the accused shall have to put down the conditions which might have been imposed upon him for hrs release on bail in the very bond to be executed by him. The provision of Section 441 Cr.P.C. itself indicates that before the accused is released on bail on his bond, the bond has to be executed before the court. Therefore, I have noted that such an accused who has been ordered to be released on bail even under Section 438 Cr.P.C. shall have to appear before a court for executing the bond. In other words, what is meant by the above is that the accused has to submit himself to the custody of the court for executing the bond.
39. The word ''custody' has not been defined in the Cr.P.C. though this has some vital importance as regards the chapter of bail. The Supreme Court in Niranjan Singh v. Prabhakar Rajaram Kharote reported in (1980) 2 SCC 559 : A.I.R. 1980 S.C. 785 was considering and indicating its import. In that case the accused had been summoned for committing offences under Section 302, etc., of the Penal Code, 1860 and his prayer for bail had been refused by the Magistrate. The refusal was without surrender of the accused and the Magistrate also stayed the warrant of arrest which had been issued by him for appearance of the accused. The Sessions Judge was approached by the accused before whom later, he surrendered too, and the Sessions Judge without satisfying that the accused was in custody of the Magistrate who refused his prayer, admitted the accused to bail which order was challenged before the High Court and the High Court also upheld the order of the Sessions Judge by putting certain conditions in its order of bail. Niranjan Singh, the complainant, challenged the order before the Apex Court. This is how the Apex Court was considering the issue as to when a person could be said to be in ''custody' in the light of Section 439 Cr.P.C. It was held as follows:
"When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of S. 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubiotics are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit be-fore the Sessions Judge and the jurisdiction to grant bail thus arose.
Custody, in the context of S. 439, (we are not, be it noted, dealing with anticipatory bail under S. 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court.
He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions."
40. Thus, if an accused puts himself in the control of the court even after surrendering himself or even, in my opinion, appearing before it for the purposes of fulfilling formalities of executing a bail bond directed to be executed by him by an order under Section 438 Cr.P.C. then he could be said to have offered himself to the courts' jurisdiction and have further submitted himself to its orders by his physical presence in court. Is not it even in case of an order under Section 438 Cr.P.C. that the accused has to execute a bond and as I have just noticed, only when he had executed a bond he is legally and truly released on bail? Further, from where he is said to be released on bail as per the provision of Section 441 Cr.P.C? He has definitely to be from the custody of the court. When we consider the provision of Section 441 and Form. No. 45 which is the form created by the Legislature for executing a bond by the accused in pursuance to an order of bail in his favour then it may be more clear that as soon as he appears before a court, he submits himself to its jurisdiction and custody and, thus, undertakes to it to remain present before it as and when the court requires him to. Thus, what appears from the above discussion is that as soon as an accused appears and goes into the custody of the court so as to observing the legal obligation cast upon him by Section 441 Cr.P.C. he is in custody of the court and that custody in spite of his release, is subject to the terms of the bond and those terms are further creating perennial and permanent constructive custody of the court in which the accused puts himself and could be said to be lying in spite of having got an order of bail. Thus, as soon as an accused appears before a court and executes a bond in terms of Section 441 Cr.P.C. and Form No. 45 appended to its II Schedule, he could remain very well in the constructive custody of the court and, as such, there could not be any question of any statutory right being vested in him for filing yet another application for bail under Section 438 Cr.P.C.
41. The learned Judge who passed the judgment in Anirudh Prasad Yadav alias Sadhu Yadav v. State of Bihar reported in 2006 (2) P.L.J.R. 676 was simply extracting a single line from the decision of the Supreme Court in Bharat Chaudhary reported in (2003) 8 SCC 77 which is as under:
"This judgment in our opinion does not support the extreme argument addressed on behalf of the learned counsel for the respondent State that the courts specified in Section 438 of Cr. P.C. are denuded of their power under the said section where either the cognizance is taken by the court concerned or a charge-sheet is filed before the appropriate court."
42. I have already referred to the case of Bharat Chaudhary (supra) and I have already held that it never fell for consideration by the Apex Court in that case as to whether an accused who had been admitted to anticipatory bail till submission of the charge-sheet could prefer yet another anticipatory bail petition after submission of the charge-sheet and passing of cognizance order. In my considered view., the judgment in Anirudh Prasad Yadav alias Sadhu Yadav (supra) rendered by the learned Single Judge was not laying down the correct proposition of law and appears a thoroughly bad law which is hereby overruled. My esteemed Sister has issued certain directions in such cases of granting anticipatory bail up to a particular stage as may appear from paragraph 19 of the order of her Lordship for guidance of the courts which could be approached by such accused after expiry of the period of anticipatory bail. I simply want to add that in all such cases, in which charge sheet is submitted and the period of bail comes to an end, the only course left to the accused has to pray for regular bail before the original courts of jurisdiction which shall have the advantage of perusing and considering the materials which had been collected by the investigating agency during the investigation and could, thus, come to a conclusion as to whether his liberty, should be protected further or it be cut down; on account of commission of some serious offence. In all such cases, the original courts must consider some important factors, like, that the accused was granted anticipatory bail after considering some material by the competent court and that he had enjoyed that liberty. If the material as against him remains the same or almost the same, and there is no complain of tampering, etc. then his liberty must not be put to jeopardy. The court, in such case, may have to undertake hearing which may spill over a few days. In all such cases, the court should not send the accused into custody, rather allow him to remain on bail till the court finds, for definite reasons, it no more permissible in the facts of the case as presented before it. One has hardly to be worried about circumstances under which anticipatory bail maybe granted as the same appears very much restricted to the newly incorporated provision of Section 438 Cr.P.C. which has made it compulsory for considering many factors as may appear from the newly amended provision. The court which has to consider the prayer for anticipatory bail, has to consider the nature and gravity of the accusation, antecedents of the accused including the instance of his previous conviction and imprisonment by a court in respect of any cognizable offence, the possibility of the accused running away from justice and, lastly, whether the accusation had been made with the object of injuring or humiliating the applicant by having him arrested. One aspect of the matter which is often confronted by us in Court is that in spite of having been granted anticipatory bail, sometimes the accused may be remanded to custody as he had not furnished the bail bond. It is expected that the courts below shall consider proceeding under Section 438(3) Cr.P.C. and act in that light in all such cases.
17. From the close look of the said observation by the learned Judge, it is apparent that when the accused is released on Anticipatory Bail, he is required to execute a bond only after when he appears before the Court and has submitted himself to its custody and that custody does not merely mean when he is arrested by police rather when he produces himself before the magistrate, he can be stated to be in judicial custody, when he surrenders before the Court and submits to its directions. Hon'ble Judge has held that in his opinion appearing before the Court for the purposes of fulfilling formalities of executing a bail bond directed to be executed by him by order passed under Section 438 Cr.P.C., then he could be said to have offered himself to Court's jurisdiction. He undertakes to remain present before the Court as and when required, therefore as soon as accused appears and goes into the custody of the Court for observing illegal obligation caste upon him by Section 441 Cr.P.C, he is in custody of Court, and that custody, in-spite of his release, is subject to the terms of the bonds and those terms are further creating perennial and permanent constructive custody of Court in which accused puts himself and in such a situation, there can't be any statutory right having been vested in him for filing yet another application for Bail under Section 438 Cr.P.C.
18. The reasoning given above appears to have force because once the accused after the Anticipatory Bail order having been passed in his favour, produces himself before the Court for the purposes of filling up bond, it is clear that he would be submitting to the Court's authority and its directions to be obeyed. It is also clear that the order under Section 438 Cr.P.C. is passed stipulating in the bail order that in case accused is arrested, he would be released on anticipatory bail subject to his filing bonds, therefore, arrest is definitely implied in a case when anticipatory bail has been granted, therefore the apprehension of arrest being the preliminary condition for grant of Anticipatory Bail would not be available in the case of second Anticipatory Bail Application being moved by the accused and hence in such a situation it is found by the Patna High Court that the second Anticipatory Bail Application would not be admissible, arguments appear to have strong force, which does not appear to have been taken into consideration by the learned Judge of this Court in Adil's case (Supra) therefore, this Court deems it proper that an authoritative law should be laid down in this case by having a reference to larger Bench so that, once for all, it is decided as to whether the second Anticipatory Bail Application would be admissible or not in case, charge-sheet has been submitted after investigation and relief of Anticipatory Bail Application having been allowed to the accused up to the period of filing of police report under Section 173(2) Cr.P.C./Charge-sheet while allowing first anticipatory bail application.
19. Other judgements which finds mention in the Adil's Judgement (Supra) of this Court do not involve the point as to whether the second Anticipatory Bail Application is admissible or not when the first has already been allowed because there is no dispute that once the first Anticipatory Bail Application has been rejected, then second would be admissible but when the first is allowed only for a limited period i.e. till submission of police report/charge-sheet and subsequently police submits charge-sheet whether the second would be admissible or not, has not been taken into consideration in these judgements, hence I do not find them appropriate to refer in my judgement.
20. It may also be mentioned that authoritative decision of Hon'ble Supreme Court has come in case of Sushila Aggarwal v. State (NCT of Delhi) 2020 SCC OnLine SC 98 at page 29 and Another which has been relied upon by the learned counsel for the applicant and has drawn attention of the Court towards para 7.6, relevant portion of which is quoted here-in-below:-
"............. We are of the opinion that the conditions can be imposed by the court concerned while granting pre-arrest bail order including limiting the operation of the order in relation to a period of time if the circumstances so warrant, more particularly the stage at which the "anticipatory bail" application is moved, namely, whether the same is at the stage before the FIR is filed or at the stage when the FIR is filed and the investigation is in progress or at the stage when the investigation is complete and the charge-sheet is filed. However, as observed hereinabove, the normal rule should be not to limit the order in relation to a period of time."
21. Citing that it was argued that there is no prohibition to moving an Anticipatory Bail Application by an accused at any stage whether before the F.I.R. is filed or at the stage when the F.I.R. is filed and the investigation is in progress or at the stage when the investigation is complete and charge-sheet is filed. And also that normal rule should be not to limit the extent till when the relief for Anticipatory Bail would continue as the same should normally continue till the the end of trial but this judgement in Sushila's case (Supra) does give direction to the Courts dealing with Anticipatory Bail to limit the said relief of Anticipatory Bail up to a particular period for special reasons. Therefore, in the instant case, it is clear that the relief was given after thorough consideration only for a limited period till the submission of police report under Section 173 (2) Cr.P.C./Charge-sheet, and therefore, whether the second Anticipatory Application would be maintainable or not after submission of charge-sheet is a debatable point and the Hon'ble Apex Court has not clarified in the said Judgement of Sushila's Case (Supra) as to whether the said second Anticipatory Bail Application would be maintainable in such a situation.
22. In Sushila's case (Supra), the points of reference were:-
(i) Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fix period so as to enable the person to surrender before the trial court and seeks regular bail.
(ii) Whether the life of an Anticipatory Bail should end at the time and stage when the accused is summoned by the Court.
23. These two points have been answered by the Hon'ble Apex Court in para nos. 91 and 92 of Sushila's case (Supra) which are reproduced herein below:
"91. In view of the concurring judgments of M.R. Shah, J. and of S. Ravindra Bhat, J. with Arun Mishra, Indira Banerjee and Vineet Saran, JJ. agreeing with them, the following answers to the reference are set out:
91.1. Regarding Question 1, this Court holds that the protection granted to a person under Section 438 CrPC should not invariably be limited to a fixed period; it should enure in favour of the accused without any restriction on time. Normal conditions under Section 437(3) read with Section 438(2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event), etc. 91.2. As regards the second question referred to this Court, it is held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.
92. 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 CrPC:
92.1. Consistent with the judgment in Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] , when a person complains of apprehension of arrest and approaches for order, the application should be based on 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.
92.2. 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.
92.3. Nothing in Section 438 CrPC, 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 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) CrPC [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 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.
92.4. 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.
92.5. Anticipatory bail granted can, depending on the conduct and behaviour of the accused, continue after filing of the charge-sheet till end of trial.
92.6. 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, 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.
92.7. 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.
92.8. The observations in Sibbia [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] 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, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] had observed that : (SCC p. 584, para 19) "19. ... 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 [State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125 : (1961) 1 SCR 14 : 1960 Cri LJ 1504] ."
92.9. 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, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. 92.10. The court referred to in para 92.9 above is the court which grants anticipatory bail, in the first instance, according to prevailing authorities.
92.11. 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 v. Ramprasad Vishwanath Gupta [Prakash Kadam v. Ramprasad Vishwanath Gupta, (2011) 6 SCC 189 : (2011) 2 SCC (Cri) 848] ; Jai Prakash Singh [Jai Prakash Singh v. State of Bihar, (2012) 4 SCC 379 : (2012) 2 SCC (Cri) 468]; State of U.P. v. Amarmani Tripathi [State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2)] .) This does not amount to "cancellation" in terms of Section 439(2) CrPC.
92.12. The observations in Siddharam Satlingappa Mhetre v. State of Maharashtra[Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 : (2011) 1 SCC (Cri) 514] (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 [Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996) 1 SCC 667 : 1996 SCC (Cri) 198] and subsequent decisions (including K.L. Verma v. State [K.L. Verma v. State, (1998) 9 SCC 348 : 1998 SCC (Cri) 1031], Sunita Devi v. State of Bihar [Sunita Devi v. State of Bihar, (2005) 1 SCC 608 : 2005 SCC (Cri) 435], Adri Dharan Das v. State of W.B. [Adri Dharan Das v. State of W.B., (2005) 4 SCC 303 : 2005 SCC (Cri) 933], Nirmal Jeet Kaur v. State of M.P. [Nirmal Jeet Kaur v. State of M.P., (2004) 7 SCC 558 : 2004 SCC (Cri) 1989], HDFC Bank Ltd. v. J.J. Mannan [HDFC Bank Ltd. v. J.J. Mannan, (2010) 1 SCC 679 : (2010) 1 SCC (Cri) 879], Satpal Singh v. State of Punjab [Satpal Singh v. State of Punjab, (2018) 13 SCC 813 : (2019) 1 SCC (Cri) 424] and Naresh Kumar Yadav v. Ravindra Kumar [Naresh Kumar Yadav v. Ravindra Kumar, (2008) 1 SCC 632 : (2008) 1 SCC (Cri) 277] ) which lay down such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled."
24. Looking to the fact that in accordance with the law laid down by Hon'ble Apex Court, position of law is very clear that while hearing Anticipatory Bail, a Court can limit the extent to which the relief of Anticipatory Bail can be given for a limited period, the judgement passed by this Court dated 13.11.2019 appears to be in accordance with the said law because in this order, this Court had granted relief to the applicant only for a limited period i.e. up to the submission of police report under Section 173 (2) Cr.P.C.
25. A close look of the above decision of Hon'ble Apex Court would also indicate that no opinion has been expressed by the Hon'ble Apex Court with respect to the fact as to whether in a case wherein the Anticipatory Bail Application has been allowed to an accused for a limited period i.e. till submission of police report under Section 173 (2) Cr.P.C. and subsequently charge-sheet is submitted, whether another application for the Anticipatory Bail would be permissible or not by the same accused, therefore, this point needs clarification particularly in view of the conflicting judgement of Patna High Court in Bishundeo Sahu's case (Supra) which is in conflict with the judgement of this Court passed by Single Bench of this Court.
26. Office is directed to lay this matter before the Hon'ble the Chief Justice for nominating a Bench of appropriate strength for deciding this issue at the earliest.
Order Date:- 25.01.2021 A. Mandhani