SUPREME COURT REITERATES THE IMPORTANCE OF SAFEGUARDING PERSONAL LIBERTY WHILE GRANTING ANTICIPATORY BAIL

A Two Judge Bench of the Supreme Court comprising of Justice S. Ravindra Bhat and Aravind Kumar in CRIMINAL APPEAL NO. 2207 OF 2023 [Arising out of SLP(CRL.) No. 3433 OF 2023] passed a Judgment dated 31-07-2023 in the matter MD. ASFAK ALAM (Appellants) vs. THE STATE OF JHARKHAND & ANR. (Respondents) allowing an Appeal and critically analyzing the balance between personal liberty and the necessity of arrest, asserting that the mere existence of the power to arrest does not obligate its automatic exercise.

Facts:

i) The Appellant, Md. Asfak Alam, and his wife (Respondent No. 2), were married on 05-11-2020. The Appellant alleged that discord arose in their marital relationship due to interference and pressure exerted by the wife’s father and family. The Appellant’s allegations extended to complaints lodged against the wife’s family for threatening his family.

ii) The Police ignored the directions of the Five-Judge Bench in Lalita Kumari vs. Govt. of UP & Ors., [2013] 14 SCR 713. which stated that the Police were required to comply with certain steps before registering an First Information Report (FIR). The Police registered an FIR against the Appellant, his brother, and others on 02-04-2022. The FIR accused them of committing offences under Section 498A (husband or relative of a woman subjecting her to cruelty), Section 323 (voluntarily causing hurt), Section 504 (intentional insult with intent to provoke breach of the peace), and Section 506 (criminal intimidation) of the Indian Penal Code, 1860 (IPC), along with Sections 3 (penalty for giving or taking dowry) and 4 (penalty for demanding dowry) of the Dowry Prohibition Act, 1984.

iii) The Appellant was afraid of being arrested, and applied for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (Cr.P.C), before the Sessions Judge in Gumla, Jharkhand. The Session Judge dismissed the said Application on 28-06- 2022. The Appellant then approached the High Court of Jharkhand for anticipatory bail on 05-07-2022.

iv) During the pendency of the Anticipatory Bail Application, the High Court granted the Appellant interim protection on 08-08-2022, directing the Police not to arrest him. The investigation proceeded, resulting in the filing of a charge sheet by the Police.

v) Despite the protection order, when the Appellant’s Anticipatory Bail Application was considered by the High Court on 18-01-2023, the court rejected the anticipatory bail and directed the Appellant to surrender before the competent court and seek regular bail.

vi) Aggrieved by the High Court’s Order, the Appellant appealed to the Supreme Court, challenging the denial of anticipatory bail and the subsequent direction to surrender and seek regular bail.

Trial Court Observations:

That the case was filed before the Gumla Mahila P.S. in Case No. 07/2022 wherein, the Appellant apprehended arrest and applied for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (Cr.P.C) before the Sessions Judge, Gumla, Jharkhand;

The Trial Court dismissed the Appellant’s Anticipatory Bail Application, which had sought protection from potential arrest on 28-06-2022. The Court’s decision to deny anticipatory bail was likely influenced by the seriousness of the allegations, including charges of harassment, threats, and other offences against the Appellant, which warranted a thorough examination of the evidence and the potential impact on the investigation.

Aggrieved by the Trial Court Order dated 28-06-2022, the Accused filed Anticipatory Bail Application (ABA) No. 5771/2022 before Jharkhand High Court. The High Court, vide Order dated 18-01-2023, rejected the ABA and made the following observations:

High Court:

(a) The High Court rejected the Appellant’s ABA and issued a directive for him to surrender before the competent court and seek regular bail on 18-01-2023. The High Court’s decision was grounded in the seriousness of the allegations against the Appellant, which involved charges of harassment and threats against his wife and her family.

(b) The Court considered the possibility of tampering with evidence and influencing witnesses, emphasizing that the allegations warranted a cautious approach towards granting anticipatory bail. Despite the interim protection granted earlier, the High Court’s rejection highlighted the Court’s discretion in considering the necessity of arrest in cases involving matrimonial offences and the paramount importance of ensuring justice while protecting individual rights.

Supreme Court:

Aggrieved by the High Court Order dated 18-01-2023, the Appellant filed Criminal Appeal No. 2207 of 2023 before the Supreme Court. The Apex Court vide Order dated 31-07-2023 held as follows:

The Apex Court carefully considered the case and concluded that there are no exceptional circumstances that justified denying anticipatory bail to the Appellant. The Court took into account the uncertainty surrounding the allegations against the Appellant. The Appellant had applied for anticipatory bail before and after the 08-08-2022 order, and throughout this period, they cooperated with the investigation.

The Court held that the High Court should have granted bail to the Appellant when the charge sheet was submitted. However, the Court denied the Application and instructed the Appellant to surrender and apply for regular bail.

The Apex Court’s decision were accompanied by significant guidelines, drawing on previous case law to provide a comprehensive framework for the considerations surrounding anticipatory bail. Further, the Court’s guidance aimed to balance the protection of personal liberty with the need to address allegations of serious offences. Here are the Supreme Court’s observations and guidelines, supported by references to relevant case laws:

“1. The Court emphasized that arrests should not be made automatically upon registering a case under Section 498-A IPC. Police Officers should satisfy themselves about the necessity for arrest under the parameters set out in Section 41 Cr.P.C.[1]

2. Police officers should use a checklist containing specified sub-clauses under Section 41(1)(b)(ii) to determine the need for arrest. This checklist should assist officers in assessing whether an arrest is necessary to prevent further offences, ensure proper investigation, prevent the accused from tampering with evidence or intimidating witnesses, or ensure the accused’s presence during Court proceedings.[2]

3. Police officers should forward the checklist duly filled, along with reasons and materials justifying the arrest, to the magistrate when producing the accused before the court for further detention. The magistrate must then peruse these reasons before authorizing detention.[3]

4. Police officers should serve notice of appearance under Section 41-A Cr.P.C to the accused within two weeks of registering the case. Failure to comply with this direction may result in departmental action against the concerned police officers. Police officers’ decisions not to arrest an accused should be forwarded to the magistrate within two weeks from the case’s institution. The magistrate should receive a copy of this decision, and the superintendent of police may extend this period with recorded reasons.[4]

5. Magistrates should scrutinize the report furnished by the Police officer while authorizing the detention of the accused. The magistrate’s satisfaction is crucial before granting detention.[5]

6. While considering an application for anticipatory bail, the courts should assess factors such as the nature and gravity of the offense, the role of the accused, potential influence on witnesses, the likelihood of absconding, and tampering with evidence.[6]

7. The guidelines provided apply not only to cases under Section 498-A IPC or Section 4 of the Dowry Prohibition Act but also to cases involving offences carrying imprisonment terms that may be less than seven years or extend up to seven years.”

CONCLUSION:

The Apex Court allowed the Appeal and set aside the High Court’s Order, providing comprehensive guidelines for the grant of anticipatory bail. The Court emphasized the importance of safeguarding personal liberty, directing police officers and magistrates to

adhere to specific criteria before making arrests or authorizing detentions. These guidelines, derived from relevant case laws, serve as a crucial framework to ensure a balanced approach in cases involving allegations of offences, including those falling under Section 498-A IPC.

Editor’s Comments:

The Five Judge Bench in the matter of Lalita Kumari vs. Govt. of UP & Ors., [2013] 14 SCR 713. had considered the importance of registering the earliest information as FIR for two reasons:  one, that the criminal process is set into motion and is well documented from the very start; and second, that the earliest information received in relation to the commission of a cognizable offence is recorded so that there cannot be any exaggeration, etc. The Court also identified specific types of cases that may warrant a preliminary inquiry such as matrimonial disputes, family disputes, commercial offences, medical negligence cases, corruption cases, and cases with abnormal delay in initiating criminal prosecution without satisfactory explanation. In matrimonial or family disputes, a preliminary inquiry must be conducted before the FIR is filed to determine whether a cognizable offence has been committed while safeguarding the rights of the complainant and accused. It is essential for the police to comply with the directions given in this ruling.

 

Sakshi Raghuvanshi

Associate

The Indian Lawyer

 

Edited by:

Sushila Ram Varma

Chief Consultant

The Indian Lawyer

[1]  Arnesh Kumar v. State of Bihar (2014) 8 SCC 128

2  Sushila Aggarwal v. State (NCT of Delhi) (2020) 2 SCC 1

3 Sushila Aggarwal v. State (NCT of Delhi) (2020) 2 SCC 1.

4 Arnesh Kumar v. State of Bihar (2014) 8 SCC 128.

5 Sushila Aggarwal v. State (NCT of Delhi) (2020) 2 SCC 1.

6 Arnesh Kumar v. State of Bihar (2014) 8 SCC 128 and Sushila Aggarwal v. State (NCT      of Delhi) (2020) 2 SCC 1