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UTTARAKHAND HIGH COURT
Sri Vipin Sanghi, CJ, Manoj Kumar Tiwari and Ravindra Maithani, JJ.
Saubhagya Bhagat and Ors. – Applicants
versus
State of Uttarakhand and Anr. – Respondents
Anticipatory Bail Application No. 76 of 2021 with Anticipatory Bail Application No. 34 of 2021, 188 of 2021, 215 of 2021, 244 of 2021, 245 of 2021, 256 of 2021, 259 of 2021, 261 of 2021, 268 of 2021, 29 of 2022, 63 of 2022, 101 of 2022, 150 of 2022, 156 of 2022, 159 of 2022, 161 of 2022, 189 of 2022, 195 of 2022, 198 of 2022, 213 of 2022, 219 of 2022, 253 of 2022, 254 of 2022, 256 of 2022, 281 of 2022, 288 of 2022, 304 of 2022, 310 of 2022, 329 of 2022, 348 of 2022, 26 of 2023, 164 of 2023 and 176 of 2023.
Decided on 24.08.2023
Per Manoj Kumar Tiwari, J. (Majority View)
(A) Criminal Procedure Code, 1973 – Section 438 – Whether application for anticipatory bail is maintainable after charge-sheet has been filed in Court – Application seeking anticipatory bail would be maintainable even after filing of charge-sheet in Court – Legislature has not imposed any restriction as regards stage upto which application for anticipatory bail can be entertained – Filing of charge-sheet does not affect continuance of anticipatory bail, if granted – Application for anticipatory bail cannot be held to be not maintainable merely because charge-sheet is filed against accused person – This would amount to doing violence with language of Section 438, a provision meant to protect personal liberty of people which has to be construed in a manner which subserves its purpose and it would not be proper for this Court to read some restriction/condition in said provision which was not put by Legislature. (Paras 27, 37 and 50)
(B) Constitution of India – Article 21 – Right to life and personal liberty – Object of bail is to secure appearance of accused person at his trial by reasonable amount of bail and it is neither punitive nor preventative – Right to life and personal liberty
is a valuable right, available to all persons, guaranteed by Article 21 of Constitution – Respect for life, liberty and property is
not merely a norm or a policy of State,
but an essential requirement of any civilized society – Right to life is one of basic human rights and not even State has authority to violate that right. (Paras 8, 10 and 14)
(C) Interpretation of Statute – External aids cannot be used for interpreting a provision when there is no ambiguity in language of statute – Law Commission’s report cannot be pressed into service for restricting meaning of a statutory provision or for reading some conditions into it which are not provided by Legislature. (Para 48)
Per Vipin Sanghi, CJ. (Majority View)
Criminal Procedure Code, 1973 – Section 438 – Anticipatory bail application – Application seeking anticipatory bail would be maintainable even after filing of charge-sheet in court – Legislation has not imposed any restriction as regards stage upto which application for anticipatory bail can be entertained – An interpretation of Section 438 Cr.P.C. which curtails remedy available to an accused to preserve his right to life and personal liberty, should be eschewed. (Paras 2, 10 and 11)
Result: Reference answered.
JUDGMENT
Manoj Kumar Tiwari, J.—The question which falls for consideration by this Larger Bench is whether an application for anticipatory bail is maintainable after charge sheet has been filed in the Court?
2. It transpires that a learned Single Judge of this Court had referred the aforesaid question to a Larger Bench vide order dated 17.08.2022. The said question was answered in the affirmative by a Division Bench vide order dated 7.9.2022. Learned Single Judge, however, was of the opinion that the issues raised in the order of reference have not been considered and then the question was again referred to Larger Bench vide order dated 28.9.2022, passed in ABA/76/2021 and connected matters. Thus, the issue is now before a Full Bench.
3. Since the question was earlier answered by a Division Bench, therefore, before proceeding in the matter, it would be worthwhile to peruse the second order of reference dated 28.9.2022, which is extracted below:
“The following question was referred by this Bench to the Larger Bench on 17.08.2022:-
“Whether an application for anticipatory bail is maintainable after the charge sheet has been filed in the court?”
2. While making the reference, this Bench had taken note of the provision of Sections 46 and 438 of the Code of Criminal Procedure, 1973, Law Commission’s 41st Report, the principles of law as laid down by the Hon’ble Supreme Court in the case of Shri Gurbaksh Singh Sibba and others v. State of Punjab, (1980)2 SCC 565, Satender Kumar Antil v. Central Bureau of Investigation and another, (2021) 10 SCC 773 and Sushila Aggarwal and others v. State (NCT of Delhi) and another, (2020) 5 SCC 1. In paragraph 22, 23 and 25 of the order dated 17.08.2022, this Court noted as hereunder:
“22. In view of the judgment in the case of Satender Kumar Antil (supra), after charge sheet is filed and cognizance is taken for offences under category ‘A’, bail application of such accused, on appearance, may be decided without the accused being taken into physical custody. It means, in such matters, the accused has no apprehension of his being taken into custody. Does it mean that for this category of cases, Section 438 of the Code is not applicable at all?
23. If cognizance is taken and still anticipatory is maintained in the specified court, would not it impliedly interfere with the order summoning the accused? And if it so, is it the legislative intent for enacting Section 438 of the Code?
25. Recently, in the case of Sushila Aggarwal and others v. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon’ble Supreme Court observed that the anticipatory bail is maintainable till charge sheet is filed and in para 7.1, the Hon’ble Supreme Court observed as hereunder:-
“7.1. At the outset, it is required to be noted that as such the expression “anticipatory bail” has not been defined in the Code. As observed by this Court in Balchand Jain [Balchand Jain v. State of M.P., (1976) 4 SCC 572 : 1976 SCC (Cri) 689], “anticipatory bail” means “bail in anticipation of arrest”. As held by this Court, the expression “anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently granted by the court in anticipation of arrest. An application for “anticipatory bail” in anticipation of arrest could be moved by the accused at a stage before an FIR is filed or at a stage when FIR is registered but the charge-sheet has not been filed and the investigation is in progress or at a stage after the investigation is concluded. Power to grant “anticipatory bail” under Section 438 CrPC vests only with the Court of Session or the High Court. ..............................” (emphasis supplied)
3. A Division Bench of this Court has answered the reference on 07.09.2022. The Division Bench observed that anticipatory bail application is maintainable even after filing of the charge sheet. While answering, the Division Bench did not make any mention of the judgment in the case of Satender Kumar Antil (supra) an
(1) Anticipatory bail – Once anticipatory bail is granted, it ordinarily continues without fixed expiry – Filing of charge-sheet, taking of cognizance, or issuance of summons does not terminate prote....
The court reaffirmed that anticipatory bail can be granted in serious offences unless specifically excluded by law, and that the discretion to grant bail must consider the individual circumstances of....
Anticipatory bail is an extraordinary remedy, granted sparingly in serious cases, and requires compliance with court conditions; failure to do so can lead to rejection of bail applications.
Anticipatory bail applications are maintainable even if the petitioner is already in custody for another case, affirming the protection of personal liberty under Article 21.
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