Md. Asfak Alam v. the State of Jharkhand & Anr.

S. RAVINDRA BHAT, J. 1. On the previous date of hearing, i.e., on 26.07.2023, this Court heard the counsel for the parties to the Special Leave Petition. But having regard to the peculiar nature of the impugned order, kept this matter back for orders to be pronounced today. 2. Special leave granted. The appellant is aggrieved by the denial of anticipatory bail and a further direction to surrender before the Court and seek regular bail. MD. ASFAK ALAM v. THE STATE OF JHARKHAND & ANR. 3. The necessary facts are that the appellant and the second respondent (hereafter referred to as “husband and wife”, respect ively) were married on 5.11.2020. The appellant alleges that the respondent- wife was not happy and her father used to interfere and pressurize him and his family. This led to complaints lodged against the wife’s family for threatening the appellant’s family. It is alleged that on 02.04.2022, without complying with the directions of Five Judge Bench in Lalita Kumari vs. Govt. of UP &Ors.,1 the concerned Police Station2, registered the First Information Report (FIR) against the appellant and his brother and others, complaining of commission of offences under Section 498A, 323/504/506 of the Indian Penal Code, 1860 (IPC) and Section 3 & 4 of the Dowry Prohibition Act. 4. The appellant apprehended arrest and applied for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) before the Sessions Judge, Gumla, Jharkhand; that applicati on was dismissed on 28.06.2022. The appellant then approached the Jharkhand High Court seeking anticipatory bail on 05.07.2022. All this while, the appellant cooperated with the investigation, and after its completion, a charge-sheet was filed before the Sessions Judge. 5. Cognizance was taken on 01.10.2022 by the Sessions Court. The Sessions Court noted in this order that on 08.08.2022, the High Court had protected the appellant with the interim order directing that he may not be arrested. When the application was heard by the High Court next on 18.01.2023, without adverting, the pending anticipatory bail was rejected, and the High Court went on to direct the appellant to surrender before the competent Court and seek regular bail. The relevant extracts of the High Court impugned order3 read as follows: “Considering the facts and circumstances of the cas e and rival contentions of the learned counsel, I found t hat there are serious allegations against the petitioner that the informant is also being subjected to cruelty by lodging crimina l cases against the family members just after institution of this case. Considering the rival submission of learned counsel s and materials available against petitioner as well as g ravity of 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 1187 allegations, I am not inclined to grant privilege of antic ipatory bail to the petitioner, which stands rejected. Petitioner is directed to surrender before the court below and pray for regular bail, the learned court below shall consider the same on its own merits, without being prejudiced by this order.” 6. The appellant contends that importance has been placed by the Constitution on the value of personal liberty, the necessity for arrest before filing of the charge sheet occurs when the accused’s custo dial investigation or interrogation is essential or in certa in cases involving serious offences where the accused’s possibility of influencing witnesses cannot be ruled out. Learned counsel contends that an arrest can b e made does not mandate that it ought to be made in every ca se and emphasised that the distinction between the existence of the power (to arrest) and the justification of exercising it must always be kept in mind. It is thus argued that the procedural requirements of Section 41A of the CrPC must always be followed in this regard. 7. Learned counsel relied upon the decisions of this Court in Arnesh Kumar v. State of Bihar and Another 4, Satender Kumar Antil v. Central Bureau of Investigation and Another 5 and Siddharth v. State of Uttar Pradesh and Another 6 to underline the submissions and also highlighted that it is only if the Investigating Officer believes that the accused may abscond or disobey summons then only, he or s he needs to be taken into custody. 8. Learned counsel on behalf of the State submitted that the mere fact that a charge sheet is filed would not per se entitle an accused to the grant of anticipatory bail, which always remains discretionary. The Court always weighs the possibility of an accused [depending on his past conduct] of influencing witnesses or otherwise tampe ring with evidence. It was highlighted that the respondent, who is a complainant in this case, had alleged harassment on a regular basis by the appellant and his relatives at the matrimonial home just about one and a half months after their marriage and that she had even been threatened with loss of life. It was highlighted that according to the complainant, t he threat 4 [2014] 8 SCR 128. 5 [2022] 10 SCR 351. 6 (2022) 1 SCC 676. MD. ASFAK ALAM v. THE STATE OF JHARKHAND & ANR. [S. RAVINDRA BHAT, J.] extended to the one that she would be injected in such a manner that medical evidence would disclose that she had died of a heart attack. Analysis 9. This court has emphasised the values of personal liberty in the context of applying discretion to grant bail. It has been ruled, in a long line of cases that ordinarily bail ought to be granted and that in serious cases – which are specified in the provisions of the CrPC (Section 437) which involve allegations relating to offences carrying long sentences or other special offences, the court should be circumspect and careful in exercising discretion. The paramount considerations in cases where bail or anticipatory bail is claimed are the nature and gravity of the offence, the propensity or ability of the accused to influence eviden ce during investigation or interfere with the trial process by threatening or otherwise trying to influence the witnesses; the likelihood of the acc used to flee from justice and other such considerations. During the trial, the court is always in control of the proceedings, and it is open for it to impose any condition which it deems necessary to ensure the accused’s pre sence and participation in the trial. The court must, in every case, be guided by these 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, including considering the judgment in Gurbaksh Singh Sibbia v State of Punjab8 and decide whether imposition of conditions limiting the order of 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 th e Constitution Bench of this Court in Gurbaksh Singh Sibbia [Gurbaksh Singh Sibbia v. State of Punjab, ( 1980) 2 SCC 565 : 1980 SCC (Cri) 465] , the court may, if there are reasons for doing so, limit the operation of the or der to a short period only after filing of an FIR in respect of t he matter covered by order and the applicant may in such case be directed to obtain an order of bail under Sections 437 or 439 of the Code within a reasonable short period after the fi ling of the FIR. The Constitution Bench has further observed that 7 2020 (2) SCR 1 8 1980] 3 SCR 383 1189 the same need not be followed as an invariable rule . It is further observed and held that normal rule should be n ot to limit the operation of the order in relation to a period of time. We are of the opinion that the conditions can be imposed b y the court concerned while granting pre-arrest bail order including limiting the operation of the order in relati on to a period of time if the circumstances so warrant, mor e particularly the stage at which the “anticipatory b ail” application is moved, namely, whether the same is at th e stage before the FIR is filed or at the stage when the FIR i s filed and the investigation is in progress or at the stage whe n the investigation is complete and the charge-sheet is f iled. However, as observed hereinabove, the normal rule s hould be 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 to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the p olice, during investigation or inquiry, etc. While weighin g and considering an application (for grant of anticipato ry bail) the court has to consider the nature of the offence, the role o f the person, the likelihood of his influencing the c ourse of investigation, or tampering with evidence (includin g intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be just ified — and ought to impose conditions spelt out in Section 437(3) CrPC [by virtue of Section 438(2)]. The necessity to imp ose other restrictive conditions, would have to be weighe d on a case-by-case basis, and depending upon the material s produced by the State or the investigating agency. Such special or other restrictive conditions may be imposed if the ca se or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting cond itions may not be invariably imposed. ********************************* MD. ASFAK ALAM v. THE STATE OF JHARKHAND & ANR. [S. RAVINDRA BHAT, J.] 85.4. Courts ought to be generally guided by the considerations such as nature and gravity of the of fences, the role attributed to the applicant, and the facts of the ca se, while assessing whether to grant anticipatory bail, or ref using it. Whether to grant or not is a matter of discretion; equally whether, and if so, what kind of special conditions are to be imposed (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 conduct and behaviour of the accused, continue after filing of the charge-sheet till end of trial. Also orders of anticipatory bail should not be “blanket” in the sense that it should not enable the accused to commit further offences and claim re lief. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident th at involves commission of an offence. ********************************* 87. The history of our Republic — and indeed, the Free dom Movement has shown how the likelihood of arbitrary ar rest and indefinite detention and the lack of safeguards played an important role in rallying the people to demand Independence. Witness the Rowlatt Act, the nationwide protests against it, the Jallianwala Bagh Massacre and several oth er incidents, where the general public were exercising their right to protest but were brutally suppressed and eventually jai led for long. The spectre of arbitrary and heavy-handed a rrests : too often, to harass and humiliate citizens, and oft entimes, at the interest of powerful individuals (and not to further an y meaningful investigation into offences) led to the ena ctment of Section 438. Despite several Law Commission Reports and recommendations of several committees and commissio ns, arbitrary and groundless arrests continue as a perv asive phenomenon. Parliament has not thought it appropria te to curtail the power or discretion of the courts, in granting p re- arrest or anticipatory bail, especially regarding the duration, or till charge-sheet is filed, or in serious crimes. T herefore, it would not be in the larger interests of society if the Court, by 1191 judicial interpretation, limits the exercise of that po wer : the danger of such an exercise would be that in fraction s, little by little, the discretion, advisedly kept wide, would shri nk to a very narrow and unrecognisably tiny portion, thus frustrating the objective behind the provision, which has s tood the test of time, these 46 years.” 11. The decisions cited by counsel are useful and valuable guides with respect to the powers of the police, the discretion and the duties of the court in several kinds of cases, including those relating to the matrimonial offences such as 498A of IPC, and other cases. In Arnesh Kumar (supra), it was held that: “9. From a plain reading of the aforesaid provision , it is evident that a person accused of an offence punishable wi th imprisonment for a term which may be less than seven ye ars or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfac tion that such person had committed the offence punishab le as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary t o prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappe ar; or tampering with such evidence in any manner; or to pre vent such person from making any inducement, threat or promis e to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. The law mandates the police officer to state the facts and record the reasons in writing w hich led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writin g for not making the arrest. In pith and core, the police office r before arrest must put a question to himself, why arrest? Is it r eally required? What purpose it will serve? What object i t will achieve? It is only after these questions are addre ssed and one or the other conditions as enumerated above is satisfi ed, MD. ASFAK ALAM v. THE STATE OF JHARKHAND & ANR. [S. RAVINDRA BHAT, J.] the power of arrest needs to be exercised. In fine, befor e arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police offi cer has to be satisfied further that the arrest is necessary for o ne or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.” The court also issued valuable directions to be followed by the police authorities and the courts, in all cases where the question of grant of bail arises. Further, the court had underlined the centrality to personal liberty in its decision in Siddharth (supra): “10. We may note that personal liberty is an important aspec t of our constitutional mandate. The occasion to arre st an accused during investigation arises when custodial investigation becomes necessary or it is a heinous cri me or where there is a possibility of influencing the wit nesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the p ower to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation arid self-esteem of a person. If the investigating of ficer has no reason to believe that the accused will abscond or disobe y summons and has, in fact, throughout cooperated wit h the investigation we fail to appreciate why there shoul d be a compulsion on the officer to arrest the accused.” 12. In the present case, this Court is of the opinion that there are no startling features or elements that stand out or any except ional fact disentitling the appellant to the grant of anticipatory bail. What is important is not that the matrimonial relationship soured almost before the couple could even settle down but whether allegations levelled again st the appellant are true or partly true at this stage, which a t best would be matters of conjecture, at least for this Court. However, what is a matter of record is that the time when the anticipatory bail was pending can be divided into two parts - firstly, when there was no protection afforded to him through any interim order (between April 2022 and 08.08.2022). Secondly, it was on 08.08.2022 that the High Court granted an order effectively directing the police not to arrest him during the pendency of 1193 his application under Section 438 of the CrPC. Signi ficantly, the investigation 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 noticed the factors but interpreted them in an entirely different light. What appears from the record is that the appellant cooperated with the invest igation both before 08.08.2022, when no protection was granted to him and after 08.08.2022, when he enjoyed protection till the f iling of the chargesheet and the cognizance thereof on 01.10.2022. Thus, once the chargesheet was filed and there was no impediment, at least on the part of the accused, the court having regard to the nature of the offences, the allegations and the maximum sentence of the offences they were likely to 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 salt in the wound directed the appellant to surrender and seek regula r bail before the Trial Court. Therefore, in the opinion of this court, the High Court fell into error in adopting such a casual approach. The impugned order of rejecting the bail and directing the appellant, to surrender and later seek bail, therefore, cannot stand, and is hereby set as ide. Before parting, the court would direct all the courts ceased of pr oceedings to strictly follow the law laid down in Arnesh Kumar (supra) and reiterate the directions contained thereunder, as well as other directions: “I. 11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to, ensure what we have observed above, we give the following directions: 11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC; 11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii); 11.3. The police officer- shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before th e Magistrate for further detention; MD. ASFAK ALAM v. THE STATE OF JHARKHAND & ANR. [S. RAVINDRA BHAT, J.] 11.4. The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention; 11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by t he Superintendent of Police of the district for the reasons to be recorded in writing; 11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction. 11.8. Authorizing detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court. 12. We hasten to add that the directions aforesaid shall not only apply to the case under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a terms which may be less than seven years or which may extend to seven years, whether with or without fine.” II. The High Court shall frame the above directions in the form of notifications and guidelines to be followed by the Sessions courts and all other and criminal courts dealing wi th various offences. III. Likewise, the Director General of Police in all St ates shall ensure that strict instructions in terms of above directions are issued. Both the High Courts and the DGP’s of all States shall ensure that such guidelines and Directives/Departme ntal 1195 Circulars are issued for guidance of all lower courts and police authorities in each State within eight weeks from today. IV.Affidavits of compliance shall be filed before this court within ten weeks by all the states and High Courts, though their Registrars. 13. The appeal is accordingly allowed in the above terms. T he appellant is directed to be enlarged on bail subject to suc h terms and conditions that the Trial Court may impose. The High Courts and the Police Authorities in all States are required to comply with the above directions in the manner spelt out in the para above, within the time frame mentioned. Nidhi Jain Appeal allowed. MD. ASFAK ALAM v. THE STATE OF JHARKHAND & ANR. [S. RAVINDRA BHAT, J.]