Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 269

SUPREME COURT OF INDIA
N.V. RAMANA, CJI., SURYA KANT, ANIRUDDHA BOSE, JJ.
NATHU SINGH - APPELLANT
VERSUS
STATE OF UTTAR PRADESH & ORS. - RESPONDENTS
CRIMINAL APPEAL NO.522 OF 2021 [ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 2096 OF 2021],
WITH
OMPAL SINGH - APPELLANT
VERSUS
STATE OF UTTAR PRADESH & ORS. - RESPONDENTS
CRIMINAL APPEAL NO.523 OF 2021 [ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 2271 OF 2021]
Decided on : 28-05-2021

Advocates appeared:
For the Petitioners:Charu Ambwani, Advocates
For Respondent(s):Sarvesh Singh Baghel, Kausar Raza Faridi, Advocates

IMPORTANT POINTS
(1) Any interpretation of provisions of Section 438, Cr.P.C. has to take into consideration fact that grant or rejection of application under Section 438, Cr.P.C. has direct bearing on fundamental right to life and liberty of an individual.
(2) Once an application is rejected, or Court seized with matter refuses to issue an interim order, it is open to police to arrest applicant. Any interim relief must necessarily be narrowly tailored to protect interests of applicant while taking into consideration concerns of investigating authority.

Headnote:
(A) Criminal Procedure Code, 1973 – Section 438(1), Proviso – Constitution of India – Article 21 – Anticipatory bail – Any interpretation of provisions of Section 438, Cr.P.C. has to take into consideration fact that grant or rejection of application under Section 438, Cr.P.C. has direct bearing on fundamental right to life and liberty of an individual – Genesis of this jurisdiction lies in Article 21 of Constitution, as an effective medium to protect life and liberty of an individual – Provision needs to be read liberally and considering its beneficial nature, Courts must not read in limitations or restrictions that legislature have not explicitly provided for – Any ambiguity in language must be resolved in favour of applicant seeking relief – Once an application is rejected, or Court seized with matter refuses to issue an interim order, it is open to police to arrest applicant – Proviso does not create any rights or restrictions – Rather, sole purpose of proviso appears to be clarificatory in nature – It only restates obvious proposition that unless an individual has obtained some protection from Court, police may arrest them. (Paras 20 and 21)
(B) Criminal Procedure Code, 1973 – Section 438 – Anticipatory bail – Protection from arrest – Court, be it a Sessions Court or a High Court, in certain special facts and circumstances may decide to grant anticipatory bail for a limited period of time – Court must indicate its reasons for doing so which would be assailable before a superior Court – In present case, it is after rejecting application that High Court chose fit to grant some relief to respondents while directing them to surrender before Trial Court to file a regular bail application within 90 days, by protecting them from any coercive action during that period – Such an order must necessarily be narrowly tailored to protect interests of applicant while taking into consideration concerns of investigating authority – Such an order must be a reasoned one – After dismissal of anticipatory bail application, on the basis of nature and gravity of offence, High Court has granted impugned relief to respondents without assigning any reasons – In granting relief for a period of 90 days, Court has seemingly not considered concerns of investigating agency, complainant or proviso under Section 438(1), Cr.P.C., which necessitates that Court pass such an exceptional discretionary protection order for shortest duration that is reasonably required – A period of 90 days, or three months, cannot in any way be considered to be a reasonable one in present facts and circumstances – Impugned orders do not withstand legal scrutiny – Impugned order of High Court set aside – If respondents-accused have been meanwhile sent to judicial custody, their application(s) for regular bail or any request for their police remand made by Investigating Officer shall be decided by competent Court. (Paras 15, 16, 19, 25, 26, 27 and 28)
Facts of the case:
High Court of Judicature at Allahabad, while dismissing the anticipatory bail application of the respondents-accused, granted them 90 days to surrender before the Trial Court to seek regular bail and granted them protection from coercive action for the said period. Aggrieved by the grant of such relief, the complainants in both the matters are currently in appeal. Sole question to be answered by the Court in present appeals relates to whether the High Court, while dismissing the anticipatory bail applications of respondents, could have granted them protection from arrest.
Findings of Court:
Resultant effect of the High Court’s orders is that neither are the respondents found entitled to pre-arrest bail, nor can they be arrested for a long duration. During the said duration they can roam freely without being apprehensive of coercive action. High Court committed a grave error in passing such protection to respondents-accused. Such a direction by the High Court exceeds its judicial discretion and amounts to judicial largesse, which the Courts do not possess.
Result : Appeals allowed.

JUDGMENT :

N.V. RAMANA, CJI.

1. Leave granted.

2. The present Criminal Appeals, by way of Special Leave, raise common question of law and are therefore being disposed of together.

3. In both the impugned orders, the High Court of Judicature at Allahabad, while dismissing the anticipatory bail application of the respondents-accused, granted them 90 days to surrender before the Trial Court to seek regular bail and granted them protection from coercive action for the said period. Aggrieved by the grant of such relief, the complainants in both the matters are currently in appeal before us.

4. As only a question of law is being raised, it is not necessary for this Court to advert to the facts of both the matters extensively. It is sufficient to point out that in the first case, pertaining to Nathu Singh, the appellant’s daughter was married to respondent no. 2 in that case on 14.02.2014. As she died under suspicious circumstances in her matrimonial home on 02.01.2021, the complainant registered FIR No. 07/2021 at police station Masuri, Ghaziabad under Sections 304B and 498A, IPC read with Sections 3 and 4 of the Dowry Prohibition Act against the respondents nos. 2 to 5.

5. In the second case, the allegations are that the appellant’s brother and the latter’s two sons were attacked by the respondents in that case, due to a dispute between the parties relating to encroachment of land. The two sons were attacked on their vital parts, with one of them suffering a skull fracture as a result of which he was in a coma for one week. The other had lacerations on his head. The complainant registered FIR No. 371/20 at police station Thana Bhawan, Shamili under Sections 307, 504 and 34, IPC.

6. The respondents in both the cases approached the High Court under Section 438, Cr.P.C., during ongoing investigation, and sought protection from arrest. Vide the impugned orders dated 08.02.2021 and 28.01.2021, the High Court dismissed the applications of the respondents but granted them the aforementioned relief in identically worded orders. The relevant portion of the order, as extracted from the impugned order dated 08.02.2021, is as follows:

“…. Having heard learned counsel for the parties and upon perusal of material brought on record as well as complicity of accused and also judgment of the Apex Court in the case of P. Chidambaram v. Directorate of Enforcement, AIR 2019 SC 4198, this Court does not find any exceptional ground to exercise its discretionary jurisdiction under Section 438 Cr.P.C.

However, in view of the entirety of facts and circumstances of the case and on the request of learned counsel for the applicants, it is directed that in case the applicants appear and surrender before the court below within 90 days from today and apply for bail, their prayer for bail shall be considered and decided as per the settled law laid by this Court in the case of Amrawati and another v. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon’ble Apex Court in the case of Lal Kamlendra Pratap Singh v. State of U.P. reported in 2009 (3) ADJ 322 (SC). Till then, no coercive action shall be taken against the applicants....” (emphasis supplied)

7. Aggrieved by the impugned orders, the complainants appellants have filed the present appeals by way of special leave.

8. Heard the learned counsel for the appellants, the respondent-State and the respondents-accused at length.

9. The learned counsel for the appellants, supported by the learned State counsel, urged that once the High Court declined the final relief of pre-arrest to the respondents, it could not grant them any further protection. The learned counsel submitted that Section 438, Cr.P.C. does not contemplate the grant of any such protection on the dismissal of the application filed by an accused. Rather, the proviso to Section 438(1), Cr.P.C. specifically provides for the arrest of the accused on a rejection of the relief sought in their application. The impugned orders, wherein the High