MD. ASFAK ALAM versus THE STATE OF JHARKHAND & ANR. on 31 July 2023

1. On the previous date of hearing, i.e., on 26.07.2023, this Courtheard the counsel for the parties to the Special Leave Petition. But havingregard to the peculiar nature of the impugned order, kept this matterback for orders to be pronounced today.

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

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A3. The necessary facts are that the appellant and the secondrespondent (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 himand his family. This led to complaints lodged against the wife’s familyfor threatening the appellant’s family. It is alleged that on 02.04.2022,Bwithout complying with the directions of Five Judge Bench in LalitaKumari vs. Govt. of UP &Ors.,[1 ]the concerned Police Station[2], registeredthe First Information Report (FIR) against the appellant and his brotherand others, complaining of commission of offences under Section 498A,323/504/506 of the Indian Penal Code, 1860 (IPC) and Section 3 & 4 ofCthe Dowry Prohibition Act.

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4. The appellant apprehended arrest and applied for anticipatorybail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC)before the Sessions Judge, Gumla, Jharkhand; that application wasdismissed on 28.06.2022. The appellant then approached the JharkhandDHigh Court seeking anticipatory bail on 05.07.2022. All this while, theappellant cooperated with the investigation, and after its completion, acharge-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 HighECourt had protected the appellant with the interim order directing that hemay not be arrested. When the application was heard by the High Courtnext on 18.01.2023, without adverting, the pending anticipatory bail wasrejected, and the High Court went on to direct the appellant to surrenderbefore the competent Court and seek regular bail. The relevant extractsof the High Court impugned order[3] read as follows:F

“Considering the facts and circumstances of the case andrival contentions of the learned counsel, I found that thereare serious allegations against the petitioner that the informantis also being subjected to cruelty by lodging criminal casesagainst the family members just after institution of this case.

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Considering the rival submission of learned counsels andmaterials available against petitioner as well as gravity of H

1 [2013] 14 SCR 713.

2 Gumla Mahila P.S. in Case No. 07/2022.

3 A.B.A. No. 5771 of 2022 dated 18.01.2023

allegations, I am not inclined to grant privilege of anticipatorybail to the petitioner, which stands rejected.

Petitioner is directed to surrender before the court below andpray for regular bail, the learned court below shall considerthe same on its own merits, without being prejudiced by thisorder.”

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

7. Learned counsel relied upon the decisions of this Court inArnesh Kumar v. State of Bihar and Another[4], Satender Kumar Antilv. Central Bureau of Investigation and Another[5] and Siddharth v.State of Uttar Pradesh and Another[6 ]to underline the submissions andalso highlighted that it is only if the Investigating Officer believes thatthe accused may abscond or disobey summons then only, he or sheneeds to be taken into custody.

8. Learned counsel on behalf of the State submitted that the merefact that a charge sheet is filed would not per se entitle an accused tothe grant of anticipatory bail, which always remains discretionary. TheCourt always weighs the possibility of an accused [depending on hispast conduct] of influencing witnesses or otherwise tampering withevidence. It was highlighted that the respondent, who is a complainant inthis case, had alleged harassment on a regular basis by the appellant andhis relatives at the matrimonial home just about one and a half monthsafter their marriage and that she had even been threatened with loss oflife. It was highlighted that according to the complainant, the threat 4 [2014] 8 SCR 128.

5 [2022] 10 SCR 351.

6 (2022) 1 SCC 676.

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Aextended to the one that she would be injected in such a manner thatmedical evidence would disclose that she had died of a heart attack.

Analysis

9. This court has emphasised the values of personal liberty in thecontext of applying discretion to grant bail. It has been ruled, in a longBline of cases that ordinarily bail ought to be granted and that in seriouscases – which are specified in the provisions of the CrPC (Section 437)which involve allegations relating to offences carrying long sentences orother special offences, the court should be circumspect and careful inexercising discretion. The paramount considerations in cases where bailCor anticipatory bail is claimed are the nature and gravity of the offence,the propensity or ability of the accused to influence evidence duringinvestigation or interfere with the trial process by threatening or otherwisetrying to influence the witnesses; the likelihood of the accused to fleefrom justice and other such considerations. During the trial, the court isalways in control of the proceedings, and it is open for it to impose anyDcondition which it deems necessary to ensure the accused’s presenceand participation in the trial. The court must, in every case, be guided bythese overarching principles.

10. In the five judge Bench decision of Sushila Aggarwal v.State (NCT of Delhi)[7], this court had occasion to review past decisions,Eincluding considering the judgment in Gurbaksh Singh Sibbia v Stateof Punjab[8 ]and decide whether imposition of conditions limiting the orderof pre-arrest bail, particularly when charge-sheet is filed, is warranted.The court held, inter alia, in its judgment (M.R. Shah, J) that:

“7.6. Thus, considering the observations made by theFConstitution Bench of this Court in Gurbaksh SinghSibbia [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2SCC 565 : 1980 SCC (Cri) 465] , the court may, if there arereasons for doing so, limit the operation of the order to ashort period only after filing of an FIR in respect of the matterGcovered by order and the applicant may in such case bedirected to obtain an order of bail under Sections 437 or 439of the Code within a reasonable short period after the filingof the FIR. The Constitution Bench has further observed that 7 2020 (2) SCR 1H8 1980] 3 SCR 383

MD. ASFAK ALAM v. THE STATE OF JHARKHAND & ANR.[S. RAVINDRA BHAT, J.]

the same need not be followed as an invariable rule. It isfurther observed and held that normal rule should be not tolimit the operation of the order in relation to a period of time.We are of the opinion that the conditions can be imposed bythe court concerned while granting pre-arrest bail orderincluding limiting the operation of the order in relation to aperiod of time if the circumstances so warrant, moreparticularly the stage at which the “anticipatory bail”application is moved, namely, whether the same is at the stagebefore the FIR is filed or at the stage when the FIR is filedand the investigation is in progress or at the stage when theinvestigation is complete and the charge-sheet is filed.However, as observed hereinabove, the normal rule shouldbe not to limit the order in relation to a period of time.”

The concurring view expressed (by the author of this judgment)was:

“85.3. Section 438 CrPC does not compel or oblige courts toimpose conditions limiting relief in terms of time, or upon filingof FIR, or recording of statement of any witness, by the police,during investigation or inquiry, etc. While weighing andconsidering an application (for grant of anticipatory bail)the court has to consider the nature of the offence, the role ofthe person, the likelihood of his influencing the course ofinvestigation, or tampering with evidence (includingintimidating witnesses), likelihood of fleeing justice (such asleaving the country), etc. The courts would be justified —and ought to impose conditions spelt out in Section 437(3)CrPC [by virtue of Section 438(2)]. The necessity to imposeother restrictive conditions, would have to be weighed on acase-by-case basis, and depending upon the materialsproduced by the State or the investigating agency. Such specialor other restrictive conditions may be imposed if the case orcases warrant, but should not be imposed in a routine manner,in all cases. Likewise, conditions which limit the grant ofanticipatory bail may be granted, if they are required in thefacts of any case or cases; however, such limiting conditionsmay not be invariably imposed.

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85.4. Courts ought to be generally guided by theconsiderations such as nature and gravity of the offences,the role attributed to the applicant, and the facts of the case,while assessing whether to grant anticipatory bail, or refusingit. Whether to grant or not is a matter of discretion; equallywhether, and if so, what kind of special conditions are to beimposed (or not imposed) are dependent on facts of the case,and subject to the discretion of the court.

85.5. Anticipatory bail granted can, depending on the conductand behaviour of the accused, continue after filing of thecharge-sheet till end of trial. Also orders of anticipatory bailshould not be “blanket” in the sense that it should not enablethe accused to commit further offences and claim relief. Itshould be confined to the offence or incident, for whichapprehension of arrest is sought, in relation to a specificincident. It cannot operate in respect of a future incident thatinvolves commission of an offence.

87. The history of our Republic — and indeed, the FreedomMovement has shown how the likelihood of arbitrary arrestand indefinite detention and the lack of safeguards playedan important role in rallying the people to demandIndependence. Witness the Rowlatt Act, the nationwide protestsagainst it, the Jallianwala Bagh Massacre and several otherincidents, where the general public were exercising their rightto protest but were brutally suppressed and eventually jailedfor long. The spectre of arbitrary and heavy-handed arrests: too often, to harass and humiliate citizens, and oftentimes,at the interest of powerful individuals (and not to further anymeaningful investigation into offences) led to the enactmentof Section 438. Despite several Law Commission Reports andrecommendations of several committees and commissions,arbitrary and groundless arrests continue as a pervasivephenomenon. Parliament has not thought it appropriate tocurtail the power or discretion of the courts, in granting pre-arrest or anticipatory bail, especially regarding the duration,or till charge-sheet is filed, or in serious crimes. Therefore, itwould not be in the larger interests of society if the Court, by judicial interpretation, limits the exercise of that power : thedanger of such an exercise would be that in fractions, littleby little, the discretion, advisedly kept wide, would shrink toa very narrow and unrecognisably tiny portion, thusfrustrating the objective behind the provision, which has stoodthe test of time, these 46 years.”

11. The decisions cited by counsel are useful and valuable guideswith respect to the powers of the police, the discretion and the duties ofthe court in several kinds of cases, including those relating to thematrimonial offences such as 498A of IPC, and other cases. In ArneshKumar (supra), it was held that:

“9. From a plain reading of the aforesaid provision, it isevident that a person accused of an offence punishable withimprisonment for a term which may be less than seven yearsor which may extend to seven years with or without fine,cannot be arrested by the police officer only on his satisfactionthat such person had committed the offence punishable asaforesaid. A police officer before arrest, in such cases has tobe further satisfied that such arrest is necessary to preventsuch person from committing any further offence; or forproper investigation of the case; or to prevent the accusedfrom causing the evidence of the offence to disappear; ortampering with such evidence in any manner; or to preventsuch person from making any inducement, threat or promiseto a witness so as to dissuade him from disclosing such factsto the court or the police officer; or unless such accusedperson is arrested, his presence in the court whenever requiredcannot be ensured. These are the conclusions, which one mayreach based on facts. The law mandates the police officer tostate the facts and record the reasons in writing which ledhim to come to a conclusion covered by any of the provisionsaforesaid, while making such arrest. The law further requiresthe police officers to record the reasons in writing for notmaking the arrest. In pith and core, the police officer beforearrest must put a question to himself, why arrest? Is it reallyrequired? What purpose it will serve? What object it willachieve? It is only after these questions are addressed andone or the other conditions as enumerated above is satisfied, A

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Athe power of arrest needs to be exercised. In fine, before arrestfirst the police officers should have reason to believe on thebasis of information and material that the accused hascommitted the offence. Apart from this, the police officer hasto be satisfied further that the arrest is necessary for one orthe more purposes envisaged by sub-clauses (a) to (e) of clauseB(1) of Section 41 CrPC.”

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The court also issued valuable directions to be followed by thepolice authorities and the courts, in all cases where the question of grantof bail arises. Further, the court had underlined the centrality to personalliberty in its decision in Siddharth (supra):C

“10. We may note that personal liberty is an important aspectof our constitutional mandate. The occasion to arrest anaccused during investigation arises when custodialinvestigation becomes necessary or it is a heinous crime orwhere there is a possibility of influencing the witnesses orDaccused may abscond. Merely because an arrest can be madebecause it is lawful does not mandate that arrest must be made.A distinction must be made between the existence of the powerto arrest and the justification for exercise of it. If arrest ismade routine, it can cause incalculable harm to the reputationEarid self-esteem of a person. If the investigating officer hasno reason to believe that the accused will abscond or disobeysummons and has, in fact, throughout cooperated with theinvestigation we fail to appreciate why there should be acompulsion on the officer to arrest the accused.”

F12. In the present case, this Court is of the opinion that there areno startling features or elements that stand out or any exceptional factdisentitling the appellant to the grant of anticipatory bail. What is importantis not that the matrimonial relationship soured almost before the couplecould even settle down but whether allegations levelled against theappellant are true or partly true at this stage, which at best would beGmatters of conjecture, at least for this Court. However, what is a matterof record is that the time when the anticipatory bail was pending can bedivided into two parts - firstly, when there was no protection afforded tohim through any interim order (between April 2022 and 08.08.2022).Secondly, it was on 08.08.2022 that the High Court granted an orderHeffectively directing the police not to arrest him during the pendency of his application under Section 438 of the CrPC. Significantly, theinvestigation was completed, and chargesheet was filed after 08.08.2022,and in fact cognizance was taken on 01.10.2022 by the Sessions Judge.These factors were of importance, and though the High Court has noticedthe factors but interpreted them in an entirely different light. What appearsfrom the record is that the appellant cooperated with the investigationboth before 08.08.2022, when no protection was granted to him andafter 08.08.2022, when he enjoyed protection till the filing of thechargesheet and the cognizance thereof on 01.10.2022. Thus, once thechargesheet was filed and there was no impediment, at least on the partof the accused, the court having regard to the nature of the offences, theallegations and the maximum sentence of the offences they were likelyto carry, ought to have granted the bail as a matter of course. However,the court did not do so but mechanically rejected and, virtually, to rub saltin the wound directed the appellant to surrender and seek regular bailbefore the Trial Court. Therefore, in the opinion of this court, the HighCourt fell into error in adopting such a casual approach. The impugnedorder of rejecting the bail and directing the appellant, to surrender andlater seek bail, therefore, cannot stand, and is hereby set aside. Beforeparting, the court would direct all the courts ceased of proceedings tostrictly follow the law laid down in Arnesh Kumar (supra) and reiteratethe directions contained thereunder, as well as other directions:

“I. 11. Our endeavour in this judgment is to ensure that policeofficers do not arrest the accused unnecessarily and Magistratedo not authorize detention casually and mechanically. In orderto, ensure what we have observed above, we give the followingdirections:

11.1. All the State Governments to instruct its police officersnot to automatically arrest when a case under Section 498-AIPC is registered but to satisfy themselves about the necessityfor arrest under the parameters laid down above flowing fromSection 41 CrPC; 11.2. All police officers be provided with a check list containingspecified sub-clauses under Section 41(1)(b)(ii); 11.3. The police officer- shall forward the check list duly filledand furnish the reasons and materials which necessitated thearrest, while forwarding/producing the accused before theMagistrate for further detention; A

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11.4. The Magistrate while authorizing detention of the accusedshall peruse the report furnished by the police officer in termsaforesaid and only after recording its satisfaction, the Magistratewill authorize detention; A

11.5. The decision not to arrest an accused, be forwarded tothe Magistrate within two weeks from the date of the institutionof the case with a copy to the Magistrate which may beextended by the Superintendent of Police of the district for thereasons to be recorded in writing; B

11.6. Notice of appearance in terms of Section 41-A CrPC beserved on the accused within two weeks from the date ofinstitution of the case, which may be extended by theSuperintendent of Police of the district for the reasons to berecorded in writing; C

11.7. Failure to comply with the directions aforesaid shall apartfrom rendering the police officers concerned liable fordepartmental action, they shall also be liable to be punished forcontempt of court to be instituted before the High Court havingterritorial jurisdiction.

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11.8. Authorizing detention without recording reasons asaforesaid by the Judicial Magistrate concerned shall be liablefor departmental action by the appropriate High Court.

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12. We hasten to add that the directions aforesaid shall notonly apply to the case under Section 498-A IPC or Section 4of the Dowry Prohibition Act, the case in hand, but also suchcases where offence is punishable with imprisonment for aterms which may be less than seven years or which may extendto seven years, whether with or without fine.”

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II. The High Court shall frame the above directions in the formof notifications and guidelines to be followed by the Sessionscourts and all other and criminal courts dealing with variousGoffences.

III. Likewise, the Director General of Police in all States shallensure that strict instructions in terms of above directions areissued. Both the High Courts and the DGP’s of all States shallensure that such guidelines and Directives/Departmental H

Circulars are issued for guidance of all lower courts and policeauthorities in each State within eight weeks from today.

IV.Affidavits of compliance shall be filed before this court withinten weeks by all the states and High Courts, though theirRegistrars.

13. The appeal is accordingly allowed in the above terms. Theappellant is directed to be enlarged on bail subject to such terms andconditions that the Trial Court may impose. The High Courts and thePolice Authorities in all States are required to comply with the abovedirections in the manner spelt out in the para above, within the timeframe mentioned.

Nidhi Jain

Appeal allowed.

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