2022 Supreme(SC) 588

SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, M.M. SUNDRESH, JJ.
Satender Kumar Antil – Appellant
Versus
Central Bureau of Investigation and Another – Respondents
Miscellaneous Application No. 1849 of 2021, Miscellaneous Application Diary No. 29164 of 2021, Special Leave Petition (Crl.) No. 5191 of 2021
Decided On : 11-07-2022

IMPORTANT POINTS
(1) Bail has to be considered on acceptable legal parameters – It confers adequate discretion on Court to consider enlargement on bail of which unreasonable delay is one of grounds.
(2) Arrest and bail – Even for a cognizable offense, an arrest is not mandatory – A police officer is duty-bound to record reasons for arrest in writing – Similarly, police officer shall record reasons when he/she chooses not to arrest.
(3) Persons accused with same offense shall never be treated differently either by same court or by same or different courts.
(4) Bail applications ought to be disposed of within a period of two weeks except if provisions mandate otherwise, with exception being an intervening application – Applications for anticipatory bail are expected to be disposed of within a period of six weeks with exception of any intervening application.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 439 – Constitution of India – Article 21 – Bail – Meaning – It is a set of pre-trial restrictions imposed on a suspect while enabling any interference in judicial process – It is a conditional release on solemn undertaking by suspect that he would cooperate both with investigation and trial – Innocence of a person accused of an offense is presumed through a legal fiction, placing onus on prosecution to prove guilt before Court – It is for that agency to satisfy Court that arrest made was warranted and enlargement on bail is to be denied – Bail has to be considered on acceptable legal parameters – It confers adequate discretion on Court to consider enlargement on bail of which unreasonable delay is one of grounds. (Paras 9, 13, 16 and 18)

(B) Criminal Procedure Code, 1973 – Sections 41, 41A and 439 – Arrest and bail – Even for a cognizable offense, an arrest is not mandatory – A police officer is duty-bound to record reasons for arrest in writing – Similarly, police officer shall record reasons when he/she chooses not to arrest – There is no requirement of the procedure when offense alleged is more than seven years, among other reasons – Consequence of non-compliance with Section 41 shall certainly inure to benefit of person suspected of offense – While considering application for enlargement on bail, courts will have to satisfy themselves on due compliance of this provision – Any non-compliance would entitle accused to a grant of bail – It is appropriate to direct all State Governments and Union Territories to facilitate standing orders while taking note of Standing Order issued by Delhi Police (Standing Order No. 109 of 2020), to comply with mandate of Section 41A – This would certainly take care of not only unwarranted arrests, but also clogging of bail applications before various Courts as they may not even be required for offences up to seven years. (Paras 21, 22 and 29)

(C) Criminal Procedure Code, 1973 – Section 167(2) – Default bail – This is also another limb of Article 21 – Presumption of innocence is also inbuilt in this provision – Duty is enjoined upon agency to complete investigation within time prescribed and a failure would enable release of accused – Right enshrined is an absolute and indefeasible one, inuring to benefit of suspect – Such a right cannot be taken away even during any unforeseen circumstances, such as recent pandemic – It is not only duty of investigating agency but also courts to see to it that an accused gets benefit of Section 167 (2). (Paras 34 and 35)

(D) Criminal Procedure Code, 1973 – Section 170 – Forwarding of accused to Magistrate – This is a procedural compliance from point of view of court alone and investigating agency has got a limited role to play – In a case where prosecution does not require custody of accused, there is no need for an arrest when a case is sent to Magistrate under Section 170 of Code – There is not even a need for filing a bail application, as accused is merely forwarded to court for framing of charges and issuance of process for trial – If court is of the view that there is no need for any remand, then court can fall back upon Section 88 of Code and complete formalities required to secure presence of accused for commencement of trial. (Para 36)

(E) Criminal Procedure Code, 1973 – Sections 389 and 436A – Suspension of sentence and release on bail – “Presumption of innocence” and “bail is rule and jail is exception” may not be available to appellant who has suffered conviction – Mere pendency of an appeal per se would not be a factor – Though delay in taking up main appeal would certainly be a factor and benefit available under Section 436A would also be considered, Courts will have to see relevant factors including conviction rendered by trial court – Delay in taking up main appeal or revision coupled with benefit conferred under Section 436A of Code among other factors ought to be considered for a favourable release on bail – In a case where an appeal is pending for a longer time, to bring it under Section 436A, period of incarceration in all forms will have to be reckoned, and so also for revision. (Paras 42, 43, 44 and 46)

(F) Criminal Procedure Code, 1973 – Sections 439 and 437 read with Sections 88, 170, 204 and 209 – Bail – Section 439 confers a power upon the High Court or a Court of Sessions regarding bail – This power is to be exercised against order of Judicial Magistrate exercising power under Section 437 of the Code or in a case triable by Court of Sessions exclusively – There cannot be a divided application of proviso to Section 437, while exercising the power under Section 439 – Gravity of offence, object of Special Act, and attending circumstances are a few of factors to be taken note of, along with period of sentence – It is not advisable on part of court to categorise all offences into one group and deny bail on that basis – Persons accused with same offense shall never be treated differently either by same court or by same or different courts – Government of India may consider introduction of a separate enactment in nature of a Bail Act so as to streamline grant of bails – There need not be any insistence of a bail application while considering application under Sections 88, 170, 204 and 209 of Code – High Courts are directed to undertake exercise of finding out undertrial prisoners who are not able to comply with bail conditions – After doing so, appropriate action will have to be taken in light of Section 440 of Code, facilitating release – Bail applications ought to be disposed of within a period of two weeks except if provisions mandate otherwise, with exception being an intervening application – Applications for anticipatory bail are expected to be disposed of within a period of six weeks with exception of any intervening application. (Paras 56, 58, 66, 71 and 73)

Facts of the case:

Taking note of the continuous supply of cases seeking bail after filing of the final report on a wrong interpretation of Section 170 of the Code of Criminal Procedure, an endeavour was made by this Court to categorize the types of offenses to be used as guidelines for the future.

Findings of Court:

Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.

Result : Directions issued.