Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SC) 672

SUPREME COURT OF INDIA
S. RAVINDRA BHAT, ARAVIND KUMAR, JJ.
Md. Asfak Alam - Appellant
Versus
The State Of Jharkhand & Anr. – Respondent
Criminal Appeal No(S). 2207 of 2023 [Arising Out Of Special Leave Petition (Crl.) No. 3433 of 2023]
Decided on : 31-07-2023

Advocates appeared:
For the Petitioner(s): Mr. Smarhar Singh, AOR Ms. Shweta Kumari, Adv. Mr. Chinmay Kumar, Adv. Mr. Mohd. Asim, Adv. Mr. Manoj Kumar, Adv. Mr. Rishi Raj, Adv.
For the Respondent(s): Mr. Vishnu Sharma, Adv. Ms. Madhusmita Bora, AOR Mr. Pawan Kishore Singh, Adv. Mr. Dipankar Singh, Adv. Mrs. Anupama Sharma, Adv. Mr. Rajesh Singh Chauhan, AOR

IMPORTANT POINTS
(1) Bail – Ordinarily, bail ought to be granted and in serious cases court should be circumspect in exercising discretion.
(2) Police officers not to automatically arrest when a case under Section 498-A, IPC is registered but to satisfy themselves about necessity for arrest under parameters flowing from Section 41 of Cr.P.C.

Headnote:
(A) Criminal Procedure Code, 1973 – Section 438 – Indian Penal Code, 1860 – Sections 498A, 323/504/506 and Sections 3 and 4 of the Dowry Prohibition Act, 1961 – Anticipatory bail – Denial – Ordinarily, bail ought to be granted and in serious cases which are specified in provisions of Section 437 of Cr.P.C. which involve allegations relating to offences carrying long sentences or other special offences, court should be circumspect and careful in exercising discretion – Paramount considerations in cases where bail or anticipatory bail is claimed are nature and gravity of offence, propensity or ability of accused to influence evidence during investigation or interfere with trial process by threatening or otherwise trying to influence witnesses; likelihood of accused to flee from justice and other such considerations – In present case, there are no startling features or elements that stand out or any exceptional fact disentitling appellant to grant of anticipatory bail – Once charge-sheet was filed and there was no impediment, at least on part of accused, court having regard to nature of offences, allegations and maximum sentence of offences they were likely to carry, ought to have granted bail as a matter of course – Impugned order of rejecting bail and directing appellant to surrender and later seek bail, cannot stand and hereby set aside – Bail granted – Directions issued to all courts ceased of proceedings to strictly follow safeguards laid down in Arnesh Kumar, [2014] 8 SCR 128. (Paras 9, 12 and 13)
(B) Criminal Procedure Code, 1973 – Section 41 – Arrest – Safeguards – All State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A, IPC is registered but to satisfy themselves about necessity for arrest under parameters flowing from Section 41 of Cr.P.C. – Magistrate while authorizing detention of accused shall peruse report furnished by police officer and only after recording its satisfaction, Magistrate will authorize detention – Decision not to arrest accused, be forwarded to Magistrate within two weeks from date of institution of case with a copy to Magistrate which may be extended by Superintendent of Police of district for reasons to be recorded in writing – Notice of appearance in terms of Section 41-A, Cr.P.C. be served on accused within two weeks from date of institution of case which may be extended by Superintendent of Police of district for reasons to be recorded in writing – Such directions shall not only apply to cases under Section 498-A IPC or Section 4 of Dowry Prohibition Act but also such cases where offence is punishable with imprisonment for a terms which may be less than seven years or which may extend to seven years, whether with or without fine – High Court shall frame directions in form of notifications and guidelines to be followed by Sessions courts and all other and criminal courts dealing with various offences. (Para 12)
Facts of the case:
Appellant is aggrieved by the denial of anticipatory bail and a further direction to surrender before the Court and seek regular bail.
Findings of Court:
Appellant is directed to be enlarged on bail subject to such terms and conditions that Trial Court may impose. High Courts and the Police Authorities in all States are required to comply with directions in the manner spelt out here, within time frame mentioned.
Result : Appeal allowed.

JUDGMENT :

S. RAVINDRA BHAT, J.

1. On the previous date of hearing, i.e., on 26.07.2023, this Court heard the counsel for the parties to the Special Leave Petition. But having regard to the peculiar nature of the impugned order, kept this matter back for orders to be pronounced today.

2. Special leave granted. The appellant is aggrieved by the denial of anticipatory bail and a further direction to surrender before the Court and seek regular bail.

3. The necessary facts are that the appellant and the second respondent (hereafter referred to as “husband and wife”, respectively) were married on 5.11.2020. The appellant alleges that the respondent-wife was not happy and her father used to interfere and pressurize him and his family. This led to complaints lodged against the wife’s family for threatening the appellant’s family. It is alleged that on 02.04.2022, without complying with the directions of Five Judge Bench in Lalita Kumari vs. Govt. of UP & Ors., [2013] 14 SCR 713 the concerned Police Station, Gumla Mahila P.S. in Case No. 07/2022, registered the First Information Report (FIR) against the appellant and his brother and others, complaining of commission of offences under Section 498A, 323/504/506 of the Indian Penal Code, 1860 (IPC) and Section 3 & 4 of the Dowry Prohibition Act.

4. The appellant apprehended arrest and applied for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) before the Sessions Judge, Gumla, Jharkhand; that application was dismissed on 28.06.2022. The appellant then approached the Jharkhand High Court seeking anticipatory bail on 05.07.2022. All this while, the appellant cooperated with the investigation, and after its completion, a charge-sheet was filed before the Sessions Judge.

5. Cognizance was taken on 01.10.2022 by the Sessions Court. The Sessions Court noted in this order that on 08.08.2022, the High Court had protected the appellant with the interim order directing that he may not be arrested. When the application was heard by the High Court next on 18.01.2023, without adverting, the pending anticipatory bail was rejected, and the High Court went on to direct the appellant to surrender before the competent Court and seek regular bail. The relevant extracts of the High Court impugned order³[ A.B.A. No. 5771 of 2022 dated 18.01.2023] read as follows:

“Considering the facts and circumstances of the case and rival contentions of the learned counsel, I found that there are serious allegations against the petitioner that the informant is also being subjected to cruelty by lodging criminal cases against the family members just after institution of this case.

Considering the rival submission of learned counsels and materials available against petitioner as well as gravity of allegations, I am not inclined to grant privilege of anticipatory bail to the petitioner, which stands rejected.

Petitioner is directed to surrender before the court below and pray for regular bail, the learned court below shall consider the same on its own merits, without being prejudiced by this order.”

6. The appellant contends that importance has been placed by the Constitution on the value of personal liberty, the necessity for arrest before filing of the charge sheet occurs when the accused’s custodial investigation or interrogation is essential or in certain cases involving serious offences where the accused’s possibility of influencing witnesses cannot be ruled out. Learned counsel contends that an arrest can be made does not mandate that it ought to be made in every case and emphasised that the distinction between the existence of the power (to arrest) and the justification of exercising it must always be kept in mind. It is thus argued that the procedural requirements of Section 41A of the CrPC must always be followed in this regard.

7. Learned counsel relied upon the decisions of this Court in Arnesh Kumar v. State of Bihar and Another, [2014] 8 SCR 128, Satender Kumar Antil v. Central Bureau