ROMIT N. SAHAI breaks down the Supreme Court’s order yesterday in the case of Satender Kumar Antil vs. Central Bureau of Investigation & Anr. in which it laid down guidelines for grant of bail to an accused after the filing of the chargesheet.
The guidelines issued came as voluntary suggestions from Additional Solicitor General S.V. Raja and Senior Advocate Sidharth Luthra, who were representing the CBI and the petitioner, respectively, in the matter before the apex court.
The guidelines were issued to fill the lacuna in the intervening period between the completion of investigation and the initiation of trial, that is, the stage when investigation has concluded and chargesheet has been filed, but the accused was not arrested during the investigation.
The guidelines not only lays down the considerations to be borne in mind by the courts but also provides a sequential procedure to be followed when the chargesheet is filed, but the accused is not arrested, with the object of ensuring that the accused is not unnecessarily harassed.
These guidelines have stemmed from observations made in a slew of cases recently decided by the Supreme Court where it was irked on the routine default approach of investigating officers and judicial magistrates to arrest the accused who, during the course of an entire investigation, was not arrested at all, and at the same time was also cooperative with the entire investigation.
The bench of Justices S.K. Kaul and M.M. Sundresh, while hearing the instant matter in July, had remarked: “Prima-facie, we cannot appreciate why in such a scenario is there a requirement for the petitioner being sent to custody. Be that as it may, it will be appropriate to lay down some principles in this behalf.”
In the present case, after the charge-sheet was filed, the accused did not appear before the court that took cognizance of the charge-sheet and instead had filed an anticipatory bail application. Due to his non-appearance, the anticipatory bail application was rejected, and non-bailable warrants were issued.
Aggrieved by the rejection of his anticipatory bail application, a Special Leave to Appeal Petition was filed before the Supreme Court wherein the apex court asked for an explanation for the petitioner’s unusual behaviour of deliberately avoiding appearance and filing an anticipatory bail application, especially when there was no immediate apprehension for his arrest as he had not been arrested for the entire duration of the investigation.
The counsel for the-accused stated that as a matter of routine by lower-courts, once the chargesheet is filed, the accused is arrested by the Investigating-Officers or sent to custody by the courts themselves even if a person is not arrested during investigation; thus he was constrained to defy the summon and apply for anticipatory-bail.
Earlier this year, in its orders in the cases of Siddharth vs. State of UP (heard by a two-judge bench comprising of Justice Kaul) and Aman Preet vs. CBI (heard by the bench of Justices Kaul and Sundresh as well), the Supreme Court, whilst frowning upon the unwarranted and groundless act of arresting an accused at the time of filing of charge-sheet only for the reason of formalizing the charges framed, decided that the same was completely misplaced and contrary to Section 170 of the Code of Criminal Procedure (CrPC), and that the first plan of action of the lower courts must always be to issue summons and avoid an arbitrary order of arrest.
The Delhi High Court had held in a 2004 judgment that in ordinary course, the police should always avoid arresting the accused whenever possible. This was affirmed as correct by the Supreme Court in Pankaj Jain v. Union of Indian (2018).
Earlier, in M.C. Mehta (Taj Corridor Scam) vs. Union of India (2006) had held that the purpose of section 170 of CrPC is the ascertainment of facts and circumstances of the case so as to form an opinion whether on the material collected, there is a case to place the accused for trial.
The Supreme Court has laid that the foremost conditions precedent for these guidelines to-be applicable are:
(1) The Accused was not arrested during the investigation and,
(2) That, the accused cooperated throughout the investigation, including appearing before the concerned investigating officer whenever called.
If these requisite conditions are not met, then these guidelines will not be applicable when the bail application is being considered.
For the purposive application of these guidelines, the Court has also classified the offences by type into four broad categories:
Category A (General Offences)
– Offences punishable with imprisonment of 7 years or less.
– The offence itself is not punishable with death, life-imprisonment or imprisonment of more than 7 years.
– The offence is not an economic offence.
Category B (Heinous Offences)
– Offence is punishable with death or life-imprisonment or imprisonment of more than 7 years.
Category C (Special Offences)
– Offences punishable under Special Acts.
– The Act should contain stringent or special provisions for bail like the Narcotic Drugs and Psychotropic Substances Act (Section 37), the Prevention of Money Laundering Act (Section 45), the Unlawful Activities (Prevention) Act (Section 43D(5)), and Companies Act (Section 212(6)).
Category D (Economic Offences)
– Economic Offences which are not covered by any Special Act.
The category specific guidelines and procedure laid down by the Supreme Court is as follows:
After the charge-sheet is filed or the cognizance of complaint has been taken as the case may be (police cases or complaint cases):-
- Court will first issue an ordinary summons at the first instance (including permitting appearance through lawyer).
- If after service of the summons, the accused does not appear, then an available warrant for physical appearance may be issued.
- If the accused still fails to appear, then a non-bailable warrant may be issued.
- If, however, the accused moves an application before the non-bailable warrant is executed with the undertaking in the application that the accused will appear physically on the next date(s) of hearing, then the court may cancel the non-bailable warrant or convert it into either a bailable warrant or a summons, and no insistence on physical appearance of the accused.
- The court may also decide the bail application of such accused on appearance without taking the accused in physical custody or by granting interim bail till the bail application is decided.
Categories B and D
On appearance of the accused in Court pursuant to any process issued, the bail application of the accused is to be decided on merits.
The same condition as that for Categories B and D, along with an additional condition, i.e., after the appearance of the accused in Court, their bail application is to be decided on merits and in compliance of the specific conditions/provisions of bail provided under the Special Act.
Non-Cooperation of Accused or Exigency Situations
The above issued guidelines will not give benefit to the accused in the following situations:
– Situations where the accused did not cooperate in the investigation nor appeared before the investigating officers nor answered summons or
– Situations where the Court feels that judicial custody is necessary for the completion of trial, or where further investigation including a possible recovery, is required.
While the court is considering the bail application of the accused charged with offence of any of the above categories, the court is empowered to grant interim bail by taking into considerations of the accused during the investigation where his arrest was not warranted. but the ultimate bail application is to be considered as per the specific guidelines issued.
The Court also clarified that the settled view in Sanjay Chandra vs. SBI (2012) continue to hold, that is, the determining considerations for grant of bail do not take economic offences out of its purview, and that the only bearing the court has to have is the seriousness of the charge itself and the simultaneous severity of its punishment.
The guidelines issued are a much needed direction for lower courts, which are ordinarily reluctant when it comes to grant of bail but hasty when it comes to ordering arrest of the accused, even when the latter have been cooperative during the investigation.
(Romit Nandan Sahai is a third-year undergraduate law student of Vivekananda Institute of Professional Studies. The views expressed are personal.)