The Hon’ble Supreme Court of India while deciding Criminal Appeals, by way of Special Leave, which had raised a common question of law and were therefore being disposed of together in SLP Nos. 2096 of 2021 and 2271 of 2021, the then Chief Justice: N.V. Ramana CJI observed as follows:
“11. The sole question to be answered by the Court in the present appeals relates to whether the High Court, while dismissing the anticipatory bail applications…, could have granted them protection from arrest.
12. The considerations on the basis of which the Court is to exercise its discretion to grant relief under Section 438, Cr.P.C. have been decided by this Court in a catena of judgments and needs no restatement.
13. A recent Constitution Bench judgment of this Court, in Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1 has clarified the extent of power exercisable by Courts under Section 438, Cr.P.C. The Court ultimately held as follows:
“91.1. Regarding Question 1, this Court holds that the protection granted to a person under Section 438 CrPC should not invariably be limited to a fixed period; it should enure in favour of the accused without any restriction on time. Normal conditions under Section 437(3) read with Section 438(2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event), etc.
91.2. As regards the second question referred to this Court, it is held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.”
14. The Constitution Bench in Sushila Aggarwal (supra) has authoritatively held that when a Court grants anticipatory bail under Section 438, Cr.P.C., the same is ordinarily not limited to a fixed period and would subsist till the end of the trial. However, it was clarified by the Court that if the facts and circumstances warranted, the Court could impose special conditions, including limiting the relief to a certain period.
19. The only guidance relating to what is to take place once an application under Section 438, Cr.P.C. is rejected is found in the proviso to Section 438(1), Cr.P.C., which specifically provides that once an application is rejected, or the Court seized with the matter refuses to issue an interim order, it is open to the police to arrest the applicant. It is this proviso that the present appellants have relied upon to argue that the High Court, once it rejected the anticipatory bail applications of the respondents accused, did not have the power to grant any further relief.
20. At first blush, while this submission appears to be attractive, we are of the opinion that such an analysis of the provision is incomplete. It is no longer res integra that any interpretation of the provisions of Section 438, Cr.P.C. has to take into consideration the fact that the grant or rejection of an application under Section 438, Cr.P.C. has a direct bearing on the fundamental right to life and liberty of an individual. The genesis of this jurisdiction lies in Article 21 of the Constitution, as an effective medium to protect the life and liberty of an individual. The provision therefore needs to be read liberally, and considering its beneficial nature, the Courts must not read in limitations or restrictions that the legislature have not explicitly provided for. Any ambiguity in the language must be resolved in favour of the applicant seeking relief. In this context, this Court, in the Constitution Bench decision of this Court in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, which was recently upheld and followed by this Court in Sushila Aggarwal (supra)...”
Pertaining to Notice under
Section 41-A CrPC, 1973:
In Sri. Ramappa @ Ramesh S/O. Dharmanna vs The State Of Karnataka, The High Court Of Karnataka (Dharwad Bench) in Criminal Petition No. 101022/2021 on 22 June, 2021 observed:
“24. Section 41A of the Code operates in a situation where there is no arrest and prescribes the course of option to be adopted by a police officer in case he decides not to arrest any person. Till the time any person is not arrested, he is entitled to maintain an application for grant of anticipatory bail subject to, of course, the applicability of any other law to the contrary.
25. Section 41A of the Cr.P.C. defers the arrest until and unless sufficient evidence is collected, so as to produce or forward the accused to the custody of the court. The apprehension of arrest, thus, does not completely vanish away on the issuance of notice of appearance under Section 41A of the Cr.P.C., and hence, the question being raised in maintainability of an application under Section 438 Cr.P.C., during the pendency of notice being issued under Section 41A Cr.P.C. or during the compliance of the terms of such notice, is completely unwarranted and is not in tune with the provisions of law. The apprehension of arrest always does exist even after issuance of notice of appearance under Section 41A Cr.P.C. and under such circumstance the Courts cannot evade to entertain an application under Section 438 Cr.P.C.” (Shivashankar Amarannavar, J.).
The writer is a Doctoral Researcher working under the Alliance of European Universities and has presented his research works at various Academic Conferences
