# SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF INVESTIGATION & ANR

- **Citation:** [2022] 10 S.C.R. 351
- **Court:** Supreme Court of India
- **Decided:** 2022-07-11
- **Case number:** Miscellaneous Application No.1849 of 2021
- **Bench:** Sanjay Kishan Kaul, M.M. Sundresh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/satender-kumar-antil-v-central-bureau-of-investigation-anr-35558
- **Pages:** 97

## Headnote

Bail - Grant of - Code of Criminal Procedure, 1973 - ss. 41,
41A, 88, 170, 204 and 209 - Constitution of India - Arts. 21 & 22
- Applications have been filed seeking certain directions/
clarifications, to deal with the aspects governing the grant of bail -
Held: The Government of India may consider the introduction of a
separate enactment in the nature of a Bail Act so as to streamline
the grant of bail - While considering the application for enlargement
on bail, Courts will have to satisfy themselves on the due compliance
of sec. 41 of CrPC - Any non-compliance would entitle the accused
to a grant of bail - Section 41 and 41A are facets of Article 21 of
the Constitution - The directions of Arnesh Kumar v. State of Bihar
ought to be complied with in letter and spirit by the investigating
and prosecuting agencies - While the view expressed by the Supreme
Court on the non-compliance of Section 41 and the consequences
that flow from it has to be kept in mind by the Court, which is
expected to be reflected in the orders - To take care of not only the
unwarranted arrests, but also the clogging of bail applications
before various Courts, all the State Governments and the Union
Territories directed to facilitate standing orders, to comply with the
mandate of Section 41A - There need not be any insistence of a
bail application while considering the application u/ss. 88, 170,
204 and 209 of the Code.
Code of Criminal Procedure, 1973 - Special Courts -
Constitution of - The State and Central Governments will have to
comply with the directions issued by Supreme Court from time to
time with respect to constitution of special courts - The High Court
in consultation with the State Governments will have to undertake
an exercise on the need for the special courts - The vacancies in
the position of Presiding Officers of the special courts will have to
be filled up expeditiously.
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Code of Criminal Procedure, 1973 - ss. 436A, 440 -
Undertrial Prisoners - The statistics placed before the Court
indicated that more than 2/3rd of the inmates of the prisons constitute
undertrial prisoners - Of this category of prisoners, majority may
not even be required to be arrested despite registration of a
cognizable offense, being charged with offenses punishable for
seven years or less - The High Courts are directed to undertake the
exercise of finding out the undertrial prisoners who are not able to
comply with the bail conditions - After doing so, appropriate action
will have to be taken in light of sec. 440, facilitating the release -
While insisting upon sureties the mandate of sec. 440 of the Code
has to be kept in mind - An exercise will have to be done in a
similar manner to comply with the mandate of sec. 436A both at the
district judiciary level and the High Court as earlier directed by
this Court in Bhim Singh, followed by appropriate orders.
Code of Criminal Procedure, 1973 - Bail Application -
Disposal of - Timeframe - 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.
Code of Criminal Procedure, 1973 - Sec. 167(2) - Object
and presumption under - It has got a laudable object behind it,
which is to ensure an expeditious investigation and a fair trial, and
to set down a rationalised procedure that protects the interests of
the indigent sections of society - This is also another limb of Art. 21
- Presumption of innocence is also inbuilt in this provision - The
right enshrined is an absolute and indefeasible one, inuring to the
benefit of suspect - A duty is enjoined upon the agency to complete
the investigation within the time prescribed and a failure would enable
the release of the accused - Such a right cannot be taken away
even du

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 [2022] 10 S.C.R. 351
351
SATENDER KUMAR ANTIL
v.
CENTRAL BUREAU OF INVESTIGATION & ANR.
(Miscellaneous Application No.1849 of 2021)
JULY 11, 2022
[SANJAY KISHAN KAUL AND M.M. SUNDRESH, JJ.]
Bail - Grant of - Code of Criminal Procedure, 1973 - ss. 41,
41A, 88, 170, 204 and 209 - Constitution of India - Arts. 21 & 22
- Applications have been filed seeking certain directions/
clarifications, to deal with the aspects governing the grant of bail -
Held: The Government of India may consider the introduction of a
separate enactment in the nature of a Bail Act so as to streamline
the grant of bail - While considering the application for enlargement
on bail, Courts will have to satisfy themselves on the due compliance
of sec. 41 of CrPC - Any non-compliance would entitle the accused
to a grant of bail - Section 41 and 41A are facets of Article 21 of
the Constitution - The directions of Arnesh Kumar v. State of Bihar
ought to be complied with in letter and spirit by the investigating
and prosecuting agencies - While the view expressed by the Supreme
Court on the non-compliance of Section 41 and the consequences
that flow from it has to be kept in mind by the Court, which is
expected to be reflected in the orders - To take care of not only the
unwarranted arrests, but also the clogging of bail applications
before various Courts, all the State Governments and the Union
Territories directed to facilitate standing orders, to comply with the
mandate of Section 41A - There need not be any insistence of a
bail application while considering the application u/ss. 88, 170,
204 and 209 of the Code.
Code of Criminal Procedure, 1973 - Special Courts -
Constitution of - The State and Central Governments will have to
comply with the directions issued by Supreme Court from time to
time with respect to constitution of special courts - The High Court
in consultation with the State Governments will have to undertake
an exercise on the need for the special courts - The vacancies in
the position of Presiding Officers of the special courts will have to
be filled up expeditiously.
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Code of Criminal Procedure, 1973 - ss. 436A, 440 -
Undertrial Prisoners - The statistics placed before the Court
indicated that more than 2/3rd of the inmates of the prisons constitute
undertrial prisoners - Of this category of prisoners, majority may
not even be required to be arrested despite registration of a
cognizable offense, being charged with offenses punishable for
seven years or less - The High Courts are directed to undertake the
exercise of finding out the undertrial prisoners who are not able to
comply with the bail conditions - After doing so, appropriate action
will have to be taken in light of sec. 440, facilitating the release -
While insisting upon sureties the mandate of sec. 440 of the Code
has to be kept in mind - An exercise will have to be done in a
similar manner to comply with the mandate of sec. 436A both at the
district judiciary level and the High Court as earlier directed by
this Court in Bhim Singh, followed by appropriate orders.
Code of Criminal Procedure, 1973 - Bail Application -
Disposal of - Timeframe - 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.
Code of Criminal Procedure, 1973 - Sec. 167(2) - Object
and presumption under - It has got a laudable object behind it,
which is to ensure an expeditious investigation and a fair trial, and
to set down a rationalised procedure that protects the interests of
the indigent sections of society - This is also another limb of Art. 21
- Presumption of innocence is also inbuilt in this provision - The
right enshrined is an absolute and indefeasible one, inuring to the
benefit of suspect - A duty is enjoined upon the agency to complete
the investigation within the time prescribed and a failure would enable
the release of the accused - Such a right cannot be taken away
even during any unforeseen circumstances - As a consequence of
the right flowing from Sec.167(2), courts will have to give due effect
to it, and thus any detention beyond this period would certainly be
illegal, being an affront to the liberty of the person concerned -
Therefore, it is not only the duty of the investigating agency but
also the courts to see to it that an accused gets the benefit of Section
167 (2).
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Code of Criminal Procedure, 1973 - Sec. 170 - Scope and
ambit - A power which is to be exercised by the court after the
completion of the investigation - In a case where the prosecution
does not require custody of the accused, there is no need for an
arrest when a case is sent to the magistrate u/s. 170 - There is not
even a need for filing a bail application, as the accused is merely
forwarded to the court for the framing of charges and issuance of
process for trial - However, cases in which the accused persons
are already in custody, then, the bail application has to be decided
on its own merits - There needs to be Strict Complanace of he
mandate laid down in Siddharth v. State of U.P.
Code of Criminal Procedure, 1973 - ss. 88 & 204 - s. 204
gives a discretion to a Magistrate, and being procedural in nature,
it is to be exercised as a matter of course by following the prescription
of sec. 88 - Thus, issuing a warrant may be an exception in which
case the Magistrate will have to give reasons.
Code of Criminal Procedure, 1973 - s. 209 - It gives ample
power to the Magistrate to remand a person into custody during or
until the conclusion of the trial - Since the power is to be exercised
by the Magistrate on a case-to-case basis, it is his wisdom in either
remanding an accused or granting bail - Even here, it is judicial
discretion which the Magistrate has to exercise - A Magistrate can
take a call even without an application for bail if he is inclined to
do so.
Code of Criminal Procedure, 1973 - sec. 309 - Bail - It
mandates courts to continue the proceedings on a day-to-day basis
till the completion of the evidence - Any delay on the part of the
court or the prosecution would certainly violate Art. 21 - Courts
shall make sure that the accused does not suffer for the delay
occasioned due to no fault of his own - Therefore, while it is
expected of the court to comply with sec. 309 to the extent possible,
an unexplained, avoidable and prolonged delay in concluding a
trial, appeal or revision would certainly be a factor for the
consideration of bail.
Code of Criminal Procedure, 1973 - sec. 389 - Bail - It
concerns itself with circumstances pending appeal leading to the
release of the appellant on bail - The power exercisable u/s. 389 is
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different from that of the one either u/ss. 437 or 439, pending trial
- This is for the reason that "presumption of innocence" and "bail
is the rule and jail is the exception" may not be available to the
appellant who has suffered a conviction - A mere pendency of an
appeal per se would not be a factor - However, delay in taking up
the main appeal or revision coupled with the benefit conferred u/s.
436A of the Code among other factors ought to be considered for a
favourable release on bail.
Code of Criminal Procedure, 1973 - sec. 436A - In a case
where an appeal is pending for a longer time, to bring it u/s. 436A,
the period of incarceration in all forms will have to be reckoned,
and so also for the revision - When a person has undergone detention
for a period extending to one-half of the maximum period of
imprisonment specified for that offense he shall be released by the
court on his personal bond with or without sureties - There is not
even a need for a bail application in a case of this nature
particularly when the reasons for delay are not attributable against
the accused.
Code of Criminal Procedure, 1973 - sec. 437 - It empowers
the Magistrate to deal with all the offenses while considering an
application for bail with the exception of an offense punishable
either with life imprisonment or death triable exclusively by the Court
of Sessions.
Code of Criminal Procedure, 1973 - sec. 440 - The amount
of every bond executed is to be fixed with regard to the circumstances
of the case and shall not be excessive - Reasonableness of the
bond and surety is something which the court has to keep in mind
whenever the same is insisted upon, and therefore while exercising
the power u/s. 88 also the said factum has to be kept in mind -
Imposing a condition which is impossible of compliance would be
defeating the very object of the release.
Code of Criminal Procedure, 1973 - ss. 436A, 309 167(2),
440 - Special Acts - The general principle governing delay would
apply to Special Acts also - To make it clear, the provision contained
in sec. 436A would apply to the Special Acts also in the absence of
any specific provision - There is a need to comply with the directions
of this Court to expedite the process and also a stricter compliance
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of Sec. 309 - The existence of a pari materia or a similar provision
like sec.167(2) available under the Special Act would have the same
effect entitling the accused for a default bail - Even here the court
will have to consider the satisfaction u/s. 440.
Bail - Whether Economic Offences should be treated as a
class of its own or otherwise - The gravity of the offence, the object
of the Special Act, and the attending circumstances are a few of the
factors to be taken note of, along with the period of sentence -
After all, an economic offence cannot be classified as such, as it
may involve various activities and may differ from one case to
another - Therefore, it is not advisable on the part of the court to
categorise all the offences into one group and deny bail on that
basis.
Practice and Procedures - Criminal Trial - Approach of the
Court - Criminal courts in general with the trial court in particular
are the guardian angels of liberty - Any conscious failure by the
Criminal Courts would constitute an affront to liberty - It is the
pious duty of the Criminal Court to zealously guard and keep a
consistent vision in safeguarding the constitutional values and ethos
- A criminal court must uphold the constitutional thrust with
responsibility mandated on them by acting akin to a high priest.
Bail Application - Judicial Dispensation - Courts tend to think
that the possibility of a conviction being nearer to rarity, bail
applications will have to be decided strictly, contrary to legal
principles - The Court cannot mix up consideration of a bail
application, which is not punitive in nature with that of a possible
adjudication by way of trial - On the contrary, an ultimate acquittal
with continued custody would be a case of grave injustice -
Uniformity and certainty in the decisions of the court are the
foundations of judicial dispensation - Persons accused with same
offense shall never be treated differently either by the same court
or by the same or different courts - Such an action though by an
exercise of discretion despite being a judicial one would be a grave
affront to Arts. 14 and 15 of the Constitution of India.
Code of Criminal Procedure, 1973 - Trial - Defined - An
extended meaning has to be given to this word for the purpose of
enlargement on bail to include, the stage of investigation and
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thereafter - In the former stage, an arrest followed by a police
custody may be warranted for a thorough investigation, while in
the latter what matters substantially is the proceedings before the
Court in the form of a trial - An appeal or revision shall also be
construed as a facet of trial when it comes to the consideration of
bail on suspension of sentence.
Code of Criminal Procedure, 1973 - Bail - Defined - A bail
is nothing but a surety inclusive of a personal bond from the accused
- It means the release of an accused person either by the orders of
the Court or by the police or by the Investigating Agency - It is a
conditional release on the solemn undertaking by the suspect that
he would cooperate both with the investigation and the trial - Bail
is the rule and jail is the exception.
Presumption of innocence - Onus on the prosecution to prove
the guilt before the Court - Presumption of innocence being a facet
of Article 21, shall inure to the benefit of the accused - The weightage
of the evidence has to be assessed on the principle of beyond
reasonable doubt.
Disposing of the applications, the Court
HELD: 1. These directions are meant for the investigating
agencies and also for the courts. Accordingly, the Court deem it
appropriate to issue the following directions, which may be subject
to State amendments.:
a.) The Government of India may consider the introduction
of a separate enactment in the nature of a Bail Act so as to
streamline the grant of bails.
b.) The investigating agencies and their officers are dutybound to comply with the mandate of Section 41 and 41A of the
Code and the directions issued by this Court in Arnesh Kumar.
Any dereliction on their part has to be brought to the notice of
the higher authorities by the court followed by appropriate action.
c.) The courts will have to satisfy themselves on the
compliance of Section 41 and 41A of the Code. Any noncompliance would entitle the accused for grant of bail.
d.) All the State Governments and the Union Territories
are directed to facilitate standing orders for the procedure to be
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followed under Section 41 and 41A of the Code while taking note
of the order of the High Court of Delhi dated 07.02.2018 in Writ
Petition (C) No. 7608 of 2017 and the standing order issued by
the Delhi Police i.e. Standing Order No. 109 of 2020, to comply
with the mandate of Section 41A of the Code.
e.) There need not be any insistence of a bail application
while considering the application under Section 88, 170, 204 and
209 of the Code.
f.) There needs to be a strict compliance of the mandate
laid down in the judgment of this court in Siddharth.
g.) The State and Central Governments will have to comply
with the directions issued by this Court from time to time with
respect to constitution of special courts. The High Court in
consultation with the State Governments will have to undertake
an exercise on the need for the special courts. The vacancies in
the position of Presiding Officers of the special courts will have
to be filled up expeditiously.
h.) The High Courts are directed to undertake the exercise
of finding out the undertrial prisoners who are not able to comply
with the bail conditions. After doing so, appropriate action will
have to be taken in light of Section 440 of the Code, facilitating
the release.
i.) While insisting upon sureties the mandate of Section 440
of the Code has to be kept in mind.
j.) An exercise will have to be done in a similar manner to
comply with the mandate of Section 436A of the Code both at the
district judiciary level and the High Court as earlier directed by
this Court in Bhim Singh, followed by appropriate orders.
k.) 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.
l.) All State Governments, Union Territories and High
Courts are directed to file affidavits/ status reports within a period
of four months. [Para 73][445-F-G; 446-A-H; 447-A-C]
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF
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Nikesh Tarachand Shah v. Union of India (2018) 11
SCC 1 : [2017] 12 SCR 358; Sanjay Chandra v. CBI
(2012) 1 SCC 40 : [2011] 13 SCR 309; Corey Lee
James Myers v. Her Majesty the Queen 2019 SCC 18;
Her Majesty the Queen v. Kevin Antic and Ors. 2017
SCC 27; Arnesh Kumar v. State of Bihar (2014) 8 SCC
273 : [2014] 8 SCR 128; Inder Mohan Goswami v. State
of Uttaranchal (2007) 12 SCC 1 : [2007] 10 SCR 847;
Pankaj Jain v. Union of India (2018) 5 SCC 743 :
[2018] 9 SCR 248; M. Ravindran v. Directorate of
Revenue Intelligence (2021) 2 SCC 485; Siddharth v.
State of U.P. (2021) 1 SCC 676; Hussainara Khatoon
& Ors. v Home Secretary, State of Bihar, 1980 (1) SCC
81 : [1979] 3 SCR 169; Hussain & Anr. v. Union of
India & Ors. 2017 (5) SCC 702 : [2017] 2 SCR 626;
Surinder Singh @ Shingara Singh v State of Punjab
2005 (7) SCC 387 : [2005] 2 Suppl. SCR 1172; Atul
Tripathi v State of U.P. & Anr. 2014 (9) SCC 177 :
[2014] 14 SCR 1188; Angana v. State of Rajasthan
(2009) 3 SCC 767 : [2009] 1 SCR 941; Sunil Kumar v.
Vipin Kumar (2014) 8 SCC 868; Bhim Singh v. Union
of India (2015) 13 SCC 605; Prahlad Singh Bhati v.
NCT, Delhi (2001) 4 SCC 280 : [2001] 2 SCR 684;
The Balasaheb Satbhai Merchant Coop Bank Ltd. vs.
The State of Maharashtra and Ors. 2011 SCC OnLine
Bom 1261; In re Kenneth Humphrey, S 247278; 482
P.3d 1008 (2021); Union of India v. K.A. Najeeb (2021)
3 SCC 713; Supreme Court Legal Aid Committee v.
Union of India (1994) 6 SCC 731 : [1994] 4 Suppl.
SCR 386; P. Chidambaram v. Directorate of Enforcement
(2020) 13 SCC 791 : [2019] 14 SCR 450; Sanjay
Chandra v. CBI (2012) 1 SCC 40 : [2011] 13 SCR 309;
Arnab Manoranjan Goswami v. State of Maharashtra
(2021) 2 SCC 427 - referred to
Case Law Reference
[2017] 12 SCR 358
referred to
Para 11
[2011] 13 SCR 309
referred to
Para 12
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(2019) SCC 18
referred to
Para 16
(2017) SCC 27
referred to
Para 16
[2014] 8 SCR 128
referred to
Para 25
[2007] 10 SCR 847
referred to
Para 32
[2018] 9 SCR 248
referred to
Para 32
(2021) 2 SCC 485
referred to
Para 36
(2021) 1 SCC 676
referred to
Para 36
[1979] 3 SCR 169
referred to
Para 41
[2017] 2 SCR 626
referred to
Para 41
[2005] 2 Suppl. SCR 1172
referred to
Para 41
[2014] 14 SCR 1188
referred to
Para 44
[2009] 1 SCR 941
referred to
Para 44
(2014) 8 SCC 868
referred to
Para 44
(2015) 13 SCC 605
referred to
Para 47
[2001] 2 SCR 684
referred to
Para 53
(2021) 3 SCC 713
referred to
Para 64
[1994] 4 Suppl. SCR 386
referred to
Para 64
[2019] 14 SCR 450
referred to
Para 66
[2011] 13 SCR 309
referred to
Para 66
(2021) 2 SCC 427
referred to
Para 68
CRIMINAL APPELLATE JURISDICTION : Miscellaneous
Application No.1849 of 2021. In Special Leave Petition (Crl.) No.5191
of 2021
From the Judgment and Order dated 01.07.2021 of the High Court
of Judicature at Allahabad CRIMINAL MISC. ANTICIPATORY BAIL
No.7598 of 2021.
With
Miscellaneous Application Diary No.29164 of 2021 In Special
Leave Petition (Crl.) No.5191 of 2021
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF
INVESTIGATION & ANR.
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S. V. Raju, ASG, Sidharth Luthra, Amit Desai, Sr. Advs., Chirag
Madan, Hardik Rupal, Ms. Shubhangi Jain, Ayush Kaushik, Lakshay
Mehta, Shashank Gaurav, Akbar Siddique, Ms. Anzu K. Varkey, Ms.
Sairica Raju, Ms. Annam Venkatesh, Ms. Priyanka Das, Om Prakash
Shukla, Mohammed Akhil, Udai Khanna, Ritwiz Rishabh, Anshuman
Singh, Ankit Bhatia, Harsh Paul Singh, Arvind Kumar Sharma, Gautam
Awasthi, Amit K. Nain, Ms. Stuti Gujral, Ms. Priti Verma, Ms. Saushriya
Havelia, Sahil Ghai, Ms. Priyashree Sharma PH, Syed Faraz Alam, Kush
Chaturvedi, Arjun Garg, S. Mahesh Sahasranaman, Gopalkrishna Shenoy,
Rohan Dakshini, Ms. Pooja Kothari, Ashwin Thool, Pratik Rajopadhyay,
Aakash Nandolia, Ms. Sagun Srivastava, Mahesh Agarwal, Arshit Anand,
Nishant Rao, E. C. Agrawala, Advs. for the appearing parties.
The Judgment of the Court was delivered by
M. M. SUNDRESH, J.
"Liberty is one of the most essential requirements of the modern
man. It is said to be the delicate fruit of a mature civilization. It is the
very quintessence of civilized existence and essential requirement of a
modern man"
- John E.E.D. in "Essays on Freedom and Power"
1. 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 (hereinafter referred to as "the Code" for
short), an endeavour was made by this Court to categorize the types of
offenses to be used as guidelines for the future. Assistance was sought
from Shri Sidharth Luthra, learned senior counsel, and learned Additional
Solicitor General Shri S.V. Raju.After allowing the application for
intervention, an appropriate Order was passed on 07.10.2021. The same
is reproduced as under:
"We have been provided assistance both by Mr. S.V. Raju, learned
Additional Solicitor General and Mr. Sidharth Luthra, learned senior
counsel and there is broad unanimity in terms of the suggestions
made by learned ASG. In terms of the suggestions, the offences
have been categorized and guidelines are sought to be laid down
for grant of bail, without fettering the discretion of the courts
concerned and keeping in mind the statutory provisions.
We are inclined to accept the guidelines and make them a part of
the order of the Court for the benefit of the Courts below. The
guidelines are as under:
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Categories/Types of Offences
A) Offences punishable with imprisonment of 7 years or less not
falling in category B & 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 (S.37), PMLA (S.45), UAPA
(S.43D(5), Companies Act, 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 chargesheet
(Siddharth Vs. State of UP, 2021 SCC online SC 615)
CATEGORY A
After filing of chargesheet/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 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 accused, if such
an application is moved on behalf of the accused before execution
of the NBW on an undertaking of the accused to appear physically
on the next date/s of hearing.
e) Bail applications of such accused on appearance may be decided
w/o the accused being taken in physical custody or by granting
interim bail till the bail application is decided.
CATEGORY B/D
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
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On appearance of the accused in Court pursuant to process issued
bail application to be decided on merits.
CATEGORY C
Same as Category B & D with the additional condition of
compliance of the provisions of Bail under NDPS S.37, 45 PMLA,
212(6) Companies Act 43 d(5) of UAPA, POSCO etc."
Needless to say that the category A deals with both police cases
and complaint cases.
The trial Courts and the High Courts will keep in mind the aforesaid
guidelines while considering bail applications. The caveat which
has been put by learned ASG is that where the accused have not
cooperated in the investigation nor appeared before the
Investigating Officers, nor answered summons when the Court
feels that judicial custody of the accused is necessary for the
completion of the trial, where further investigation including a
possible recovery is needed, the aforesaid approach cannot give
them benefit, something we agree with.
We may also notice an aspect submitted by Mr. Luthra that while
issuing notice to consider bail, the trial Court is not precluded from
granting interim bail taking into consideration the conduct of the
accused during the investigation which has not warranted arrest.
On this aspect also we would give our imprimatur and naturally
the bail application to be ultimately considered, would be guided
by the statutory provisions.
The suggestions of learned ASG which we have adopted have
categorized a separate set of offences as "economic Offences"
not covered by the special Acts. In this behalf, suffice to say on
the submission of Mr. Luthra that this Court in Sanjay Chandra
vs.CBI, (2012) 1 SCC 40 has observed in para 39 that in determining
whether to grant bail both aspects have to be taken into account:
a) seriousness of the charge and
b) severity of punishment.
Thus, it is not as if economic offences are completely taken out of
the aforesaid guidelines but do form a different nature of offences
and thus the seriousness of the charge has to be taken into account
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but simultaneously, the severity of the punishment imposed by the
statute would also be a factor.
We appreciate the assistance given by the learned counsels and
the positive approach adopted by the learned ASG.
The SLP stands disposed of and the matter need not be listed
further.
A copy of this order be circulated to the Registrars of the different
High Courts to be further circulated to the trial Courts so that the
unnecessary bail matters do not come up to this Court.
This is the only purpose for which we have issued these guidelines,
but they are not fettered on the powers of the Courts."
2. Two more applications, being M.A. No. 1849/2021 and M.A.
Diary No.29164/2021, were filed seeking a clarification referring to
category 'C' wherein, inadvertently, Section 45 of the Prevention of
Money Laundering Act, 2002 despite being struck down, found a place,
thus came the Order dated 16.12.2021:
"Learned senior counsels for parties state that they will endeavour
to work out some of the fine tuning which is required to give
meaning to the intent of our order dated 07.10.2021.
We make it clear that our intent was to ease the process of bail
and not to restrict it. The order, in no way, imposes any additional
fetters but is in furtherance of the line of judicial thinking to enlarge
the scope of bail.
At this stage, suffice for us to say that while referring to category
'C', inadvertently, Section 45 of Prevention of Money laundering
Act (PMLA) has been mentioned which has been struck down
by this Court. Learned ASG states that an amendment was made
and that is pending challenge before this Court before a different
Bench. That would be a matter to be considered by that Bench.
We are also putting a caution that merely by categorizing certain
offences as economic offences which may be non-cognizable, it
does not mean that a different meaning is to be given to our order.
We may also clarify that if during the course of investigation,
there has been no cause to arrest the accused, merely because a
charge sheet is filed, would not be an ipso facto cause to arrest
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
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the petitioner, an aspect in general clarified by us in Criminal Appeal
No.838/2021 Siddharth v. State of Uttar Pradesh &Anr. dated
16.08.2021."
3. Some more applications have been filed seeking certain
directions/clarifications, while impressing this Court to deal with the other
aspects governing the grant of bail. We have heard Shri Amit Desai,
learned senior counsel, Shri Sidharth Luthra, learned senior counsel, and
learned Additional Solicitor General Shri S.V. Raju.
4. Having found that special leave petitions pertaining to different
offenses, particularly on the rejection of bail applications are being filed
before this Court, despite various directions issued from time to time, we
deem it appropriate to undertake this exercise. We do make it clear that
all our discussion along with the directions, are meant to act as guidelines,
as each case pertaining to a bail application is obviously to be decided on
its own merits.
PREVAILING SITUATION
5. Jails in India are flooded with undertrial prisoners. The statistics
placed before us would indicate that more than 2/3rd of the inmates of
the prisons constitute undertrial prisoners. Of this category of prisoners,
majority may not even be required to be arrested despite registration of
a cognizable offense, being charged with offenses punishable for seven
years or less. They are not only poor and illiterate but also would include
women.Thus, there is a culture of offense being inherited by many of
them. As observed by this Court, it certainly exhibits the mindset, a vestige
of colonial India, on the part of the Investigating Agency, notwithstanding
the fact arrest is a draconian measure resulting in curtailment of liberty,
and thus to be used sparingly. In a democracy, there can never be an
impression that it is a police State as both are conceptually opposite to
each other.
DEFINITION OF TRIAL
6. The word 'trial' is not explained and defined under the Code.An
extended meaning has to be given to this word for the purpose of
enlargement on bail to include, the stage of investigation and thereafter.
Primary considerations would obviously be different between these two
stages. In the former stage, an arrest followed by a police custody may
be warranted for a thorough investigation, while in the latter what matters
substantially is the proceedings before the Court in the form of a trial. If
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we keep the above distinction in mind, the consequence to be drawn is
for a more favourable consideration towards enlargement when
investigation is completed, of course, among other factors.
7. Similarly, an appeal or revision shall also be construed as a
facet of trial when it comes to the consideration of bail on suspension of
sentence.
DEFINITION OF BAIL
8. The term "bail" has not been defined in the Code, though is
used very often.A bail is nothing but a surety inclusive of a personal
bond from the accused. It means the release of an accused person either
by the orders of the Court or by the police or by the Investigating Agency.
9. It is a set of pre-trial restrictions imposed on a suspect while
enabling any interference in the judicial process. Thus, it is a conditional
release on the solemn undertaking by the suspect that he would cooperate
both with the investigation and the trial. The word "bail" has been defined
in the Black's Law Dictionary, 9th Edn., pg. 160 as: -
"A security such as cash or a bond; esp., security required by a
court for the release of a prisoner who must appear in court at a
future time."
10. Wharton's Law Lexicon, 14th Edn., pg. 105 defines bail as: -
"to set at liberty a person arrested or imprisoned, on security being
taken for his appearance on a day and at a place certain, which
security is called bail, because the party arrested or imprisoned is
delivered into the hands of those who bind themselves or become
bail for his due appearance when required, in order that he may
be safely protected from prison, to which they have, if they fear
his escape, etc., the legal power to deliver him."
BAIL IS THE RULE
11. The principle that bail is the rule and jail is the exception has
been well recognised through the repetitive pronouncements of this Court.
This again is on the touchstone of Article 21 of the Constitution of India.
This court in Nikesh Tarachand Shah v. Union of India, (2018) 11
SCC 1, held that:
"19. In Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh
Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri)
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
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465], the purpose of granting bail is set out with great felicity as
follows: (SCC pp. 586-88, paras 27-30)
"27. It is not necessary to refer to decisions which deal with
the right to ordinary bail because that right does not furnish an
exact parallel to the right to anticipatory bail. It is, however,
interesting that as long back as in 1924 it was held by the High
Court of Calcutta in Nagendra Nath Chakravarti, In
re [Nagendra Nath Chakravarti, In re, 1923 SCC OnLine Cal
318 : AIR 1924 Cal 476 : 1924 Cri LJ 732] , AIR pp. 479-80
that the object of bail is to secure the attendance of the accused
at the trial, that the proper test to be applied in the solution of
the question whether bail should be granted or refused is
whether it is probable that the party will appear to take his trial
and that it is indisputable that bail is not to be withheld as a
punishment. In two other cases which, significantly, are the
"Meerut Conspiracy cases" observations are to be found
regarding the right to bail which deserve a special mention.
In K.N. Joglekar v. Emperor [K.N. Joglekar v. Emperor, 1931
SCC OnLine All 60 : AIR 1931 All 504 : 1932 Cri LJ 94] it was
observed, while dealing with Section 498 which corresponds
to the present Section 439 of the Code, that it conferred upon
the Sessions Judge or the High Court wide powers to grant
bail which were not handicapped by the restrictions in the
preceding Section 497 which corresponds to the present
Section 437. It was observed by the Court that there was no
hard-and-fast rule and no inflexible principle governing the
exercise of the discretion conferred by Section 498 and that
the only principle which was established was that the discretion
should be exercised judiciously. In Emperor v. H.L.
Hutchinson [Emperor v. H.L. Hutchinson, 1931 SCC OnLine
All 14 : AIR 1931 All 356 : 1931 Cri LJ 1271] , AIR p. 358 it
was said that it was very unwise to make an attempt to lay
down any particular rules which will bind the High Court, having
regard to the fact that the legislature itself left the discretion of
the court unfettered. According to the High Court, the variety
of cases that may arise from time to time cannot be safely
classified and it is dangerous to make an attempt to classify
the cases and to say that in particular classes a bail may be
granted but not in other classes. It was observed that the
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principle to be deduced from the various sections in the Criminal
Procedure Code was that grant of bail is the rule and refusal is
the exception. An accused person who enjoys freedom is in a
much better position to look after his case and to properly defend
himself than if he were in custody. As a presumably innocent
person he is therefore entitled to freedom and every opportunity
to look after his own case. A presumably innocent person must
have his freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer, J.,
in Gudikanti Narasimhulu v. State [Gudikanti Narasimhulu
v. State, (1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC
p. 242, para 1)
'1. ... the issue [of bail] is one of liberty, justice, public
safety and burden of the public treasury, all of which insist
that a developed jurisprudence of bail is integral to a socially
sensitised judicial process. ... After all, personal liberty of
an accused or convict is fundamental, suffering lawful
eclipse only in terms of "procedure established by law".
The last four words of Article 21 are the life of that human
right.'
29. In Gurcharan Singh v. State(UT of Delhi) [Gurcharan
Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri)
41] it was observed by Goswami, J., who spoke for the Court,
that: (SCC p. 129, para 29)
'29. ... There cannot be an inexorable formula in the matter
of granting bail. The facts and circumstances of each case
will govern the exercise of judicial discretion in granting or
cancelling bail.'
30. In AMERICAN JURISPRUDENCE (2nd, Vol. 8, p. 806,
para 39), it is stated:
'Where the granting of bail lies within the discretion of the
court, the granting or denial is regulated, to a large extent, by
the facts and circumstances of each particular case. Since the
object of the detention or imprisonment of the accused is to
secure his appearance and submission to the jurisdiction and
the judgment of the court, the primary inquiry is whether a
recognizance or bond would effect that end.'
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
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It is thus clear that the question whether to grant bail or not
depends for its answer upon a variety of circumstances, the
cumulative effect of which must enter into the judicial verdict.
Any one single circumstance cannot be treated as of universal
validity or as necessarily justifying the grant or refusal of bail."
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24. Article 21 is the Ark of the Covenant so far as the Fundamental
Rights Chapter of the Constitution is concerned. It deals with
nothing less sacrosanct than the rights of life and personal liberty
of the citizens of India and other persons. It is the only article in
the Fundamental Rights Chapter (along with Article 20) that cannot
be suspended even in an emergency [see Article 359(1) of the
Constitution]. At present, Article 21 is the repository of a vast
number of substantive and procedural rights post Maneka
Gandhi v. Union of India [Maneka Gandhi v. Union of India,
(1978) 1 SCC 248]."
12. Further this Court in Sanjay Chandra v. CBI (2012) 1 SCC
40, has observed that:
"21. In bail applications, generally, it has been laid down from the
earliest times that the object of bail is to secure the appearance of
the accused person at his trial by reasonable amount of bail. The
object of bail is neither punitive nor preventative. Deprivation of
liberty must be considered a punishment, unless it is required to
ensure that an accused person will stand his trial when called
upon. The courts owe more than verbal respect to the principle
that punishment begins after conviction, and that every man is
deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in
custody pending completion of trial could be a cause of great
hardship. From time to time, necessity demands that some
unconvicted persons should be held in custody pending trial to
secure their attendance at the trial but in such cases, "necessity"
is the operative test. In this country, it would be quite contrary to
the concept of personal liberty enshrined in the Constitution that
any person should be punished in respect of any matter, upon
which, he has not been convicted or that in any circumstances, he
should be deprived of his liberty upon only the belief that he will
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tamper with the witnesses if left at liberty, save in the most
extraordinary circumstances.
23. Apart from the question of prevention being the object of refusal
of bail, one must not lose sight of the fact that any imprisonment
before conviction has a substantial punitive content and it would
be improper for any court to refuse bail as a mark of disapproval
of former conduct whether the accused has been convicted for it
or not or to refuse bail to an unconvicted person for the purpose
of giving him a taste of imprisonment as a lesson."
PRESUMPTION OF INNOCENCE
13. Innocence of a person accused of an offense is presumed
through a legal fiction, placing the onus on the prosecution to prove the
guilt before the Court. Thus, it is for that agency to satisfy the Court that
the arrest made was warranted and enlargement on bail is to be denied.
14. Presumption of innocence has been acknowledged throughout
the world.