TMI Blog2023 (8) TMI 1441X X X X Extracts X X X X X X X X Extracts X X X X ..... t is one of the most precious and cherished rights. The said right to life and personal liberty cannot be curtained, or deprived, except without following the due process of law. Section 438 of the Code of Criminal Procedure, which deals with what is popularly known as anticipatory bail , seeks to prevent the apprehended infraction of this right to life and personal liberty of a person, by providing that where any person has reason to believe that he may be arrested on accusation of having committed a non- bailable offence, he may apply to the High Court, or to the Court of Session, for a direction under the said provision and the Court may, if it thinks fit, direct that in the event of such an arrest, he shall be released on bail. In GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [ 1980 (4) TMI 295 - SUPREME COURT] , the Supreme Court considered the issue - whether the operation of an order passed under Section 438(1) of the Code should be limited in point of time. While recognizing the power of the Court to limit the operation of such an order to a shorter period, for reasons to be recorded, the Supreme Court observed that the normal rule should be not to limit the operation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court, in which the Hon'ble Supreme Court observed 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... . 5. This Bench is bound to follow the reference answered by the Division Bench. But, in the case of Sushila Aggarwal (supra), the Hon'ble Court has held that anticipatory bail application could be moved until charge sheet has not been filed. 6. This Bench is faced with a difficult situation. On the one hand, there is answer to the reference and, on the other hand, there are observations of the Hon'ble Supreme Court in the case of Sushila Aggarwal (supra). Instead of finding a way out within the parameters of law, this Court deems it disciplined action under law to refer the matter to the Larger Bench, so that the issue may be resolved. 7. The matter is referred to the larger Bench for the aforementioned reasons. 8. Let the Registry place the matter before Hon'ble the Chief Justice seeking directions for constitution of a Bench. 9. Interim orders, if any, passed in any of the cases, shall remain in force t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f human rights. The dictionary meaning of the expression bail denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb bailer which means to give or to deliver , although another view is that its derivation is from the Latin term baiulare , meaning to bear a burden . Bail is a conditional liberty. Stroud's Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states: ... when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those which have authority to bail him, which sureties are bound for him to the King's use in a certain sums of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed-that is to say, set at liberty until the day appointed for his appearance. Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required. 9. In the case of Sandeep Kumar Bafna v. State of Maharashtra, reported as (2014) 16 SCC 623, Hon'ble Supreme Court considered and discussed the concept of 'custody', 'detention' and 'arrest'. Para 16 of the said judgment is reproduced below: 16. It appears to us from the above analysis that custody, detention and arrest are sequentially cognate concepts. On the occurrence of a crime, the police is likely to carry out the investigative interrogation of a person, in the course of which the liberty of that individual is not impaired, suspects are then preferred by the police to undergo custodial interrogation during which their liberty is impeded and encroached upon. If grave suspicion against a suspect emerges, he may be detained in which event his liberty is seriously impaired. Where the investigative agency is of the opinion that the detainee or person in cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demands and constrains us also to adhere to Niranjan Singh; ergo, we reiterate that a person is in custody no sooner he surrenders before the police or before the appropriate court. This enunciation of the law is also available in three decisions in which Arijit Pasayat, J. spoke for the two-Judge Benches, namely, (a) Nirmal Jeet Kaur v. State of M.P., (b) Sunita Devi v. State of Bihar, and (c) Adri Dharan Das v. State of W.B., where the co-equal Bench has opined that since an accused has to be present in court on the moving of a bail petition under Section 437, his physical appearance before the Magistrate tantamounts to surrender. The view of Niranjan Singh (see extracted para 49 supra) has been followed in State of Haryana v. Dinesh Kumar. We can only fervently hope that members of the Bar will desist from citing several cases when all that is required for their purposes is to draw attention to the precedent that holds the field, which in the case in hand, we reiterate is Niranjan Singh. 10. Right to life and personal liberty is a valuable right, available to all persons, guaranteed by Article 21 of the Indian Constitution and it is considered as one of the most precious rights. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly, provision for anticipatory bail was made in Section 438 of the Code of Criminal Procedure, 1973. This provision allows a person to seek bail in anticipation of arrest on accusation of having committed a non-bailable offence. The basic purpose of insertion of this provision is that no person should be confined in custody unless held guilty. 16. In the case of Gurbaksh Singh Sibbia v. State of Punjab, reported in 1980 (2) SCC 565, a Constitution Bench of Hon'ble Supreme Court held that The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Anticipatory bail once granted remains operative till conclusion of the trial unless it is cancelled under Section 439 of the Code. 17. In the case of Balchand Jain v. State of M.P., reported as (1976) 4 SCC 572, Hon'ble Supreme Court held that conditions imposed by Section 437(1) CrPC are to be read in Section 438. Para 17 of the said judgment is extracted below: ---As Section 438 immediat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutional challenge by reading words in it which are not to be found therein. (Emphasis supplied) 19. In the case of Gurbaksh Singh Sibbia (supra), Constitution Bench of Hon'ble Supreme Court laid down certain principles, which are to be borne in mind while considering an application for anticipatory bail. These principles are summarized in para 35 to 39, which are reproduced below: 35. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has reason to believe that he may be arrested for a non- bailable offence. The use of the expression reason to believe shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief , for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non- bailable offence, must be capable of being examined by the court objectively, because it is then alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the investigation has made progress or the charge sheet is filed. Relevant extract of the said judgment is reproduced below: Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular Court for bail. 22. The view taken in the case of Salauddin Abdulsamad Shaikh (supra) was followed in the case of HDFC Bank Limited v. J.J. Mannan alias J.M. John Paul Another, reported as (2010) 1 SCC 679. Para 19 and 20 of the said judgment are reproduced below: 19. The object of Section 438 CrPC has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of Section 438 CrPC cannot also be invoked to exempt the accused from surrendering to the court after the investigation is complete and if charge-sheet is filed against him. Such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person apprehending arrest.- (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isionreveals that legislaturehas notimposed any restriction as regards the stage upto which an application for anticipatory bail can be entertained. The Constitution Bench in the case of Gurbaksh Singh Sibbia v. State of Punjab, reported as (1980) 2 SCC 565, has held that anticipatory bail can be granted so long as the applicant has not been arrested. 28. The question whether Courts by judicial interpretation can put some restrictions or conditions in the statute which the legislature itself did not think it proper or necessary to impose, was answered in the negative by the Constitution Bench in para 12 of the judgment in Gurbaksh Singh Sibbia (supra), which was approved by another Constitution Bench in para 7.3 of judgment rendered in the case of Sushila Aggarwal v. State (NCT of Delhi), reported as (2020) 5 SCC 1. 29. The reason for making this reference can be gathered from para 4 and 5 of the order passed by the learned Single Judge on 28.9.2022, which are extracted below: 4. The judgment in the case of Sushila Aggarwal (supra) has been passed by the Constitution Bench of the Hon'ble Supreme Court, in which the Hon'ble Supreme Court observed An application for anticipat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letion of investigation. Para 7.7 of the judgment in Sushila Aggarwal (supra) reiterates that such application can be filed at the stage when the investigation is complete and the charge sheet is filed . Para 7.7 of the said judgment is extracted below: We are of the opinion that the conditions can be imposed by the court concerned while granting pre- arrest bail order including limiting the operation of the order in relation to a period of time if the circumstances so warrant, more particularly the stage at which the anticipatory bail application is moved, namely, whether the same is at the stage before the FIR is filed or at the stage when the FIR is filed and the investigation is in progress or at the stage when the investigation is complete and the charge-sheet is filed. 32. In para 52.13 of the concurring judgment authored by Hon'ble Justice S. Ravindra Bhatt, the earlier view is reiterated that anticipatory bail can be granted even after filing of FIR as long as the applicant is not arrested. In para 56 of the said judgment, it is held that Section 438 is a procedural provision concerned with the personal liberty of each individual, who is entitled to the benefit of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. 72. The narrower interpretation preferred by this Court - in line of decisions starting with Salauddin highlighting the concerns with respect to the stages of investigation and enquiry and the nature and seriousness of the offence, in the opinion of the Court, ought not to lead one to cutting down the amplitude and the power and discretion otherwise available with the courts. The danger of this Court prescribing the limitations is that they become inflexible rules or edicts incapable of deviation. Instead, it would be safer to say that where there are circumstances or facts which pose peculiar p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 438 CrPC also. In such view of the matter, application for anticipatory bail cannot be held to be not maintainable merely because charge sheet is filed against the accused person. This would amount to doing violence with the language of Section 438, a provision meant to protect the 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 the said provision which was not put by the legislature. 38. The question whether anticipatory bail can be granted when cognizance is taken or the charge sheet is filed was considered by Hon'ble Supreme Court in the case of Bharat Chaudhary v. State of Bihar, reported as (2003) 8 SCC 77, and it was held that object of Section 438 CrPC is to prevent undue harassment of an accused by pre-trial arrest and detention and further that merely because a court has taken cognizance on a complaint or the investigating agency has filed charge sheet, would not by itself prevent the courts concerned to grant anticipatory bail in appropriate cases. Para 7 of the said judgment is reproduced below: 7. From the perusal of this part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 438 CrPC by the Sessions Court and the High Court. It is clearly held that the anticipatory bail can be granted at any time so long as the applicant has not been arrested. When the application is made to the High Court or the Court of Session it must apply its own mind on the question and decide when the case is made out for granting such relief. 40. In the case of Bhadresh Bipinbhai Sheth v. State of Gujarat, reported as (2016) 1 SCC 152, Hon'ble Supreme Court while considering validity of an order of anticipatory bail granted to the accused after filing of charge sheet held as under: 19. In a matter like this where allegations of rape pertain to the period which is almost 17 years ago and when no charge was framed under Section 376 IPC in the year 2001, and even the prosecutrix did not take any steps for almost 9 years and the charge under Section 376 IPC is added only in the year 2014, we see no reason why the appellant should not be given the benefit of anticipatory bail. Merely because the charge under Section 376 IPC, which is a serious charge, is now added, the benefit of anticipatory bail cannot be denied when such a charge is added after a long period of time and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 438 Cr.P.C. after filing of the charge sheet. It also cannot be said, that same is a second application for grant of anticipatory bail as pleaded by learned counsel appearing for respondents, on the same cause of action. 43. State Counsel had contended that anticipatory bail can be sought when there is an apprehension of arrest at the hands of the police, therefore, once charge sheet is filed, anticipatory bail application would not be maintainable as it would amount to interference with the summoning order, which is not permissible. The observation made by Hon'ble Supreme Court in the case of Mahdoom Bava v. C.B.I., reported as 2023 SCC OnLine SC 299, is a complete answer to the aforesaid submission and the same is reproduced below: More importantly, the appellants apprehend arrest, not at the behest of the CBI but at the behest of the Trial Court. This is for the reason that in some parts of the country, there seems to be a practice followed by Courts to remand the accused to custody, the moment they appear in response to the summoning order. The correctness of such a practice has to be tested in an appropriate case. Suffice for the present to note that it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th v. State of U.P., reported as (2022) 1 SCC 676, Hon'ble Supreme Court in para 9 has taken note of the practice of issuing non-bailable warrants for production of accused, who had cooperated with the investigation throughout, premised on the requirement that there is an obligation to arrest the accused and produce him before the court. 46. In the case of Satender Kumar Antil v. CBI, reported as (2022) 10 SCC 51, the view taken in the case of Siddharth v. State of U.P. (supra) was reiterated and it was observed that at the stage of sending an accused to the Magistrate under Section 170 of CrPC, where the prosecution does not require the custody of the accused, there is no need for an arrest and there is not even a need for filing a bail application, as the accused is merely forwarded to the court for framing of charges and issuance of process for trial and it was observed that there may be a situation where the remand may be required, it is only in such cases that the accused will have to be heard. 47. Liberty of a person is his most prized possession. Liberty of an accused gets curtailed in the case of arrest by police and also in case of his remand to custody by the Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been referred to the Larger Bench for consideration:- Whether an application for anticipatory bail is maintainable after the charge sheet has been filed in the court? 54. Instant reference has been made on the ground that in the case of Sushila Aggarwal Sushila Aggarwal and others v. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Constitution Bench of the Hon'ble Supreme Court has held that the anticipatory bail may be entertained till the charge sheet has not been filed, but a Coordinate Bench of this Court had considered anticipatory bail even after filing of the charge sheet. Initially, the reference was made on 17.08.2022, by a Single Judge in ABA No.76 of 2021, Saubhagya Bhagat Vs. State of Uttarakhand and Another, and connected matters. It was answered by a Division Bench of this Court on 07.09.2022 holding that an anticipatory bail is maintainable even after filing of the charge sheet. But, the matter has further been referred by the Single Judge, on 28.09.2022, to the Larger Bench observing as follows:- 6. This Bench is faced with a difficult situation. On the one hand, there is answer to the reference and, on the other hand, there are observations of the Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iberty without due process of law; and I really do not understand how the word personal and according to procedure established by law have been brought into article 15 by the Drafting Committee. There was a lot of discussion on this Article. 60. On 13.12.1948, finally, the issue was addressed by the Chairman of the Drafting Committee:- One point of view says that due process of law must be there in this article; otherwise the article is a nugatory one. The other point of view is that the existing phraseology is quite sufficient for the purpose. Let me explain what exactly due process involves. The question of due process raises, in my judgment, the question of the relationship between the legislature and the judiciary. In a federal Constitution, it is always open to the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of legislation which are granted by the Constitution to the particular legislature. If the law made by a particular legislature exceeds the authority of the power given to it by the Constitution, such law would be ultra vires and invalid. That is the normal thing that happens in all feder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess clause of the American Constitution there was nothing to prevent the Assembly from adopting the phrase, or if they wanted to limit the same to procedure only, to adopt that expression with only the word procedural prefixed to law. But, in the case of Maneka Gandhi (supra), the Hon'ble Supreme Court observed that, Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. 63. The due process of law clause that was avoided by the Constituent Assembly has, by interpretation, been read into Article 21 by the Hon'ble Supreme Court in the case of Maneka Gandhi (supra). STATUTORY PROVISIONS 64. Code of Criminal Procedure, 1973 ( the Code ) provides proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince a police officer has an authority to arrest without warrant, he should invariably arrest a person as soon as allegations are levelled against some person for commission of some cognizable offences? The answer is in NEGATIVE. 69. In the case of Joginder Kumar v. State of U.P., (1994) 4 SCC 260, the Hon'ble Supreme Court discussed the law on arrest and observed The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law .. The horizon of human rights is expanding. The Hon'ble Supreme Court further emphasized that No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. 70. In the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, also, the Hon'ble Supreme Court was engaged on the question of arrest, the attitude of police and observed that Arrest brings humiliati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not that in a non- bailable offence a person may not be released on bail, but then such a bail application is considered by the court, whereas in the case of bailable offences, as a matter of right, bail is claimed by the arrestee. It is governed by Section 436 of the Code. 75. In non-bailable offences, the bail may be granted. Sections 437 and 439 of the Code mainly make provisions in this regard. In non-bailable cases, though bail may not be claimed as a matter of right. 76. It is settled law that bail is a rule and jail is an exception. In the case of Moti Ram and Others V. State of Madhya Pradesh, (1978) 4 SCC 47, the Hon'ble Supreme Court traced the history of the concept of bail as follows:- 9. The concept of bail has a long history briefly set out in the publication on 'Programme in Criminal Justice Reform': The concept of bail has a long history and deep roots in English and American law. In medieval England, the custom grew out of the need to free untried prisoners from disease-ridden jails while they were waiting for the delayed trials conducted by travelling justices. Prisoners were bailed, or delivered, to reputable third parties of their own choosing who ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ault bail. Such a provision is contained under Section 167(2) of the Code. ANTICIPATORY BAIL 80. There is another aspect of the matter. If a person apprehends his arrest in the non-bailable offences, Section 438 of the Code provides for filing of an anticipatory bail application. Section 438 of the Code is as follows:- 438. Direction for grant of bail to person apprehending arrest.-(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case ? (ii) What is the life of anticipatory bail? In other words, whether anticipatory bail may expire the moment when charge sheet is filed? Or the anticipatory bail shall continue till the conclusion of trial? Special Case 84. In the case of Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, the Hon'ble Supreme Court observed that An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. While observing this, the Hon'ble Supreme Court in the case of Sibbia (supra) observed that if a person is required to make out a special case for grant of anticipatory bail, it would reduce the statutory power conferred by Section 438 to a dead letter. The Hon'ble Supreme Court observed that To say that the applicant must make out a special case for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contradiction to the law declared by the Constitution Bench in the case of Sibbia (supra). 88. In the case of Sushila Aggarwal (supra) also, the Hon'ble Supreme Court upheld that the anticipatory bail once granted continues until conclusion of trial, unless otherwise the duration is restricted by the court. STAGE OF ANTICIPATORY BAIL 89. In the case of Sibbia(supra), the Hon'ble Supreme Court discussed the nature of anticipatory bail. The Hon'ble Supreme Court discussed as to what does bail mean and what is the nature of anticipatory bail. In para 7 of the judgment, the Hon'ble Supreme Court observed as hereunder:- 7. The facility which Section 438 affords is generally referred to as 'anticipatory bail', an expression which was used by the Law Commission in its 41st Report. Neither the section nor its marginal note so describes it but, the expression 'anticipatory bail' is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest. Any order of bail can, of course, be effective only from the time of arrest because, to grant bail, as stated in Wharton's LAW LEXICON, is to 'set at liberty a person arrested or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o discussed as to what the word arrest means. The Hon'ble Supreme Court in the case of Sibbia (supra), also discussed the 41st Law Commission Report, which for the first time pointed out the necessity of introducing a provision in the Code enabling the High Court and the Court of Sessions to grant anticipatory bail . In para 39.9 of the Report, it is observed as follows:- The suggestion for directing the release of a person on bail prior to his arrest (commonly known as anticipatory bail ) was carefully considered by us. Though there is a conflict of judicial opinion about the power of a court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter. In order to settle the details of this suggestion, the following draft of a new section is placed for consideration: '497-A. (1) When any person has a reasonable apprehension that he would be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section. That court may, in its discretion, direct that in the event of his arrest, he shall be released on bail. (2) A Magistrate taking cognizance of an offence against that person shall, while taking steps under Section 204(1), either issue summons or a bailable warrant as indicated in the direction of the court under sub-section (1). (3) If any person in respect of whom such a direction is made is arrested without warrant by an officer in charge of a police station on an accusation of having committed that offence, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, such person shall be released on bail.' We considered carefully the question of laying down in the statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interests of justice. It will also be convenient to provide that notice of the interim order as well as of the final orders will be given to the Superintendent of Police forthwith. Clause 447 of the Draft Bill of 1970 was enacted with certain modifications and became Section 438 of the Code of Criminal Procedure, 1973 which we have extracted at the outset of this judgment. 93. The question that has been posed is with regard to the stage at which the anticipatory bail application may be entertained. 94. Subsequent to the judgment in the case of Sibbia (supra), in the cases of Adil v. State of U.P., 2020 SCC OnLine All 1429, Shivam v. State of U.P., 2021 SCC OnLine All 264 and Dr. Kartikeya Sharma v. State, Criminal Misc. Anticipatory Bail Application No. 3107 of 2023, the Hon'ble Allahabad High Court entertained the anticipatory bail application even after filing of the charge sheet. 95. In the case of Shamim Ahmed v. State, 2003 SCC OnL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to custody, the moment they appear in response to the summoning order. The correctness of such a practice has to be tested in an appropriate case. 102. But, in the case of HDFC Bank Limited v. J.J. Mannan alias J.M. John Paul, (2010) 1 SCC 679, the Hon'ble Supreme Court held that after filing of chargesheet, anticipatory bail may not be entertained. In Para 19 of the judgment, the Hon'ble Supreme Court observed as follows:- 19. The object of Section 438 CrPC has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of Section 438 CrPC cannot also be invoked to exempt the accused from surrendering to the court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of Section 438 CrPC, since even though a charge- sheet may be filed against an accused and charge is framed against him, he may still not appear before the court at all even during the trial. (emphasis supplied) 103. The question that arises for considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 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. Therefore, ultimately it is for the court concerned to consider the application for anticipatory bail and while granting the anticipatory bail it is ultimately for the court concerned to impose conditions including the limited period of anticipatory bail , depends upon the stages at which the application for anticipatory bail is moved (emphasis supplied) (v) At this stage only, it may be noted that at one place, in the case of Sushila Aggarwal (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under intimation to the Superintendent of Police and should be in the form of charge-sheet (Police Form No.339), if the case is sent for trial and in the form of final report (Police Form No.340), if the case is not sent for trial. The charge-sheet with the final diary in the cases shall be submitted to the Court through the circle officer and the public prosecutor and should reach the Court within four weeks of the date of lodging of the first information report in summons and warrants cases and eight weeks in Sessions cases. None of the circle officer and the public prosecutor should normally retain the charge-sheet for more than a week and the latter should submit it to the Court concerned within the time-limit prescribed. The prescribed time-limit should not be allowed to exceed except for very special reasons. (b) The stages that follows after completion of investigation are as follows:- The Investigating Officer shall submit the chargesheet through the Officer In- charge of the Police Station under intimation to the Superintendent of Police The chargesheet with the final diary in the case is submitted to the court through the Circle Officer and the public prosecutor, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he problems posed by the words' - the statute must be taken as one finds it. Considerations relevant to interpretation are not whether a differently conceived or worded statute would have yielded results more consonant with fairness and reasonableness. Consequences do not alter the statutory language, but may only help to fix its meaning. 108. The Rule of Interpretation has many facets. The Rule of Literal Interpretation, Purposive or Harmonious Construction and Mischief Rule, all are relevant for the purpose of the instant matter. 109. In the case of Gwalior Rayon Silk MFG. (WVG) Co. Ltd. v. Custodian of Vested Forests, Palghat, 1990 Supp SCC 785, the Hon'ble Supreme Court observed that, It is said, indeed rightly, that in seeking legislative intention, judges not only listen to the voice of the legislature but also listen attentively to what the legislature does not say. How the words are to be interpreted in an Act and how to gather the intention of legislature, that has also been discussed by the Hon'ble Supreme Court in the case of Gwalior Rayon (supra), in Para 8 of the judgment, which reads as hereunder:- 8. This whole line of argument with respect, is hard to ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lchand Jain v. State of M.P., (1976) 4 SCC 572) 111. In the case of A. Manjula Bhashini and Others v. Managing Director, Andhra Pradesh Women's Cooperative Finance Corporation Limited, (2009) 8 SCC 431, the Hon'ble Supreme Court observed that, in fact, the statement of object and reasons can be referred to for understanding the background of the Act. In Para 40 of the judgment, the Hon'ble Supreme Court observed as hereunder:- 40. The proposition which can be culled out from the aforementioned judgments is that although the Statement of Objects and Reasons contained in the Bill leading to enactment of the particular Act cannot be made the sole basis for construing the provisions contained therein, the same can be referred to for understanding the background, the antecedent state of affairs and the mischief sought to be remedied by the statute. The Statement of Objects and Reasons can also be looked into as an external aid for appreciating the true intent of the legislature and/or the object sought to be achieved by enactment of the particular Act or for judging reasonableness of the classification made by such Act. 112. The Code came into force with effect from 01.04.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he remedy. These three being compared I cannot doubt the conclusion. It appears to us that this rule is equally applicable to the construction of Article 286 of our Constitution. In order to properly interpret the provisions of that article it is, therefore, necessary to consider how the matter stood immediately before the Constitution came into force, what the mischief was for which the old law did not provide and the remedy which has been provided by the Constitution to cure that mischief. 114. In the case of Attorney General for India v. Satish, (2022) 5 SCC 545, the Hon'ble Supreme Court also discussed the Mischief Rule, as originated from Heydon's case (supra). In Para 63 and 64 of the judgment, the Hon'ble Supreme Court observed as hereunder:- 63. One time-tested and well-accepted mode of interpreting a statute, especially a new statute, is to apply the mischief rule - first spoken of in Heydon case [Heydon case, (1584) 3 Co Rep 7a : 76 ER 637] which contains a four-points formula, acting as an aid in construing a new law or provision. These are firstly, what was the common law before the making of the Act; secondly what was the mischief and defect for which the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t report, recommended for pre-arrest bail, and in Paragraph 39.9 of the Report, as quoted hereinabove, the Law Commission noted the reasons that, The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. It also refers to the false cases and the report records, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. It is this defect in the existing law in the year 1969, which the Law Commission noted in its 41st Report and proposed Section 497A in the Code of Criminal Procedure, 1898. The Report was in principle accepted and finally it got enacted as Section 438 of the Code. Therefore, the defect was that if there is false case or false, mala fide reports, a person may be arrested. It was essentially against police arrest. This defect or mischief was to be rectified by way of provision as anticipatory bail. This Court, at the cost of repetition reproduces what the Hon'ble Supreme Court in the case of Sibbia (supra) obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been held that: [T]he word 'arrest' when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested. 48. Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied by a person who has reason to believe that he may be arrested in a non-bailable offence. As observed hereinabove, and as interpreted in the case of Sibbia (supra), arrest has been defined under Section 46 of the Code. Who can arrest, it has also been provided in the Code. The arrest may be made by the police, by a private person or by a Magistrate. 120. Provisions regarding arrest by a Magistrate have been given under Section 44 of the Code. It is in two parts. If in the presence of a Magistrate, offence is committed, such Magistrate may himself arrest or order any person to arrest, as per Sub- Section 1 to Section 44 of the Code. Sub-Section 2 to Section 44 of the Code also empowers a Magistrate to arrest any person for whose arrest he is competent at the time and in the circumstances to issue a warrant. 121. In the case of Deepak Mahajan (supra), the Hon'ble Supreme Court has, in Para 46 discussed the word arrest and in Para 48, made a co-relation between arrest and appearance or surrender of a person. The Hon'ble Supreme Court observed that, To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter is taken by a court or Magistrate after examining the material before him. 127. In the case of State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554, the Hon'ble Supreme Court discussed the aspects of mala fide and observed that, an information is lodged at the police station and an offence is registered, the mala fide of the informant would be of secondary importance if the investigation produces unimpeachable evidence disclosing the offence. 128. The discussion on cognizance has been made qua understanding the necessity of introducing Section 438 of the Code in the statute book. The necessity was felt because there were instances of false cases by the influential persons so as to lodging their rivals into jail. As stated, the question of initial mala fide becomes secondary importance on filing of the chargesheet. In similar manner, if after investigation in an FIR, chargesheet is filed or on a complaint processes are issued by the Magistrate, that is done only after cognizance is taken; after application of judicial mind by the court of Magistrate on the allegations and materials in support thereof. The processes are not issued at the behest of any influential person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of interpretation that the provision of the statute should not be read in a manner so as to make some other provision of the statute redundant. There should be harmonious construction of the different provisions of the enactment. It is the principle of harmonious construction. 133. In the case of Managing Director, Chhattisgarh State Co-Operative Bank Maryadit v. Zila Sahkari Kendriya Bank Maryadit, (2020) 6 SCC 411, the Hon'ble Supreme Court, in Para 33, observed as follows:- 33. It is a settled principle of law that where two provisions of an enactment appear to conflict, courts must adopt an interpretation which harmonises, to the best extent possible, both provisions. Justice G.P. Singh in his seminal work Principles of Statutory Interpretation states: To harmonise is not to destroy. A familiar approach in all such cases is to find out which of the two apparently conflicting provisions is more general and which is more specific and to construe the more general one as to exclude the more specific The principle is expressed in the maxims generalia specialibus non derogant and generalibus specialia. Similarly, Craies in Statute Law states: The rule is, that whenever there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrest , as used under Section 438 of the Code may include any arrest or any custody during trial or during appeal, etc., it may definitely bring it in conflict with Section 389 of the Code. Section 389 of the Code makes provisions with regard to bail during pendency of an appeal. Can an accused, who is facing trial in a criminal case, move an application for anticipatory bail prior to judgment on the ground that he has apprehension that he may be convicted and may be taken into custody? If it is answered in affirmative, it would make Section 389 of the Code redundant. 138. There may be many more such instances, viz, if in a criminal appeal before the Hon'ble Supreme Court, the appellant does not appear and for any reason, his warrant of arrest is issued, can an application for anticipatory bail in such a situation be entertained? If the word arrest as occurs in Section 438 is stretched to every situation, the answer would be in affirmative. But, in such matter, anticipatory bail application may not be entertained. If in such a situation, an anticipatory bail application is permitted to be entertained, it would be a kind of interference in the judicial proceedings of the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... falling in Categories B and D. (B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years. (C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS (Section 37), PMLA (Section 45), UAPA [Section 43-D(5)], Companies Act [Section 212(6)], etc. (D) Economic offences not covered by Special Acts. Requisite Conditions (1) Not arrested during investigation. (2) Cooperated throughout in the investigation including appearing before investigating officer whenever called. (No need to forward such an accused along with the charge-sheet Siddharth v. State of U.P. [Siddharth v. State of U.P., (2022) 1 SCC 676]) Category A After filing of charge-sheet/complaint taking of cognizance (a) Ordinary summons at the 1st instance/including permitting appearance through lawyer. (b) If such an accused does not appear despite service of summons, then bailable warrant for physical appearance may be issued. (c) NBW on failure to appear despite issuance of bailable warrant. (d) NBW may be cancelled or converted into a bailable warrant/summons without insisting physical appearance of the accused, if such an application is moved on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying any apprehension of arrest. While clarifying its order on 21.03.2023, the Hon'ble Supreme Court, in the case of Satender Kumar Antil (supra) was not invited to interpret the word arrest , as occurs in Section 438 of the Code and the principle of law laid down by the Hon'ble Supreme Court in the case of Sushila Aggarwal (supra) on anticipatory bail. 143. In view of the foregoing discussion, I am of the view that an application for anticipatory bail is not maintainable after the chargesheet has been filed in the court. CONCLUSION 144. An application for anticipatory bail is not maintainable after the chargesheet has been filed in the Court. 145. The Reference is answered accordingly. VIPIN SANGHI, C.J. 146. I have perused the opinions prepared by my brothers Manoj Kumar Tiwari, J., and Ravindra Maithani, J. 147. I agree with the view taken by Manoj Kumar Tiwari, J. - that an application seeking anticipatory bail would be maintainable even after the filing of the charge- sheet in the court. 148. I may, briefly, record my reasons for agreeing with the opinion of Manoj Kumar Tiwari, J. Right to life and personal liberty is a valuable right available to a person, guaranteed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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