SATENDER KUMAR ANTIL versus CENTRAL BUREAU OF INVESTIGATION & ANR. (11/07/2022) — Supreme Court headnote

AI-generated headnote. Verify against the judgment before relying on it. Paragraph numbers refer to the judgment.

Summary

Faced with a stream of bail petitions arising from a misreading of Section 170 CrPC, the Court had on 07.10.2021 categorised offences into four groups (A: up to seven years; B: graver offences; C: special Acts with stringent bail provisions; D: economic offences). On applications for clarification it gave comprehensive guidance on arrest and bail. Jails are flooded with undertrials; bail is the rule and jail the exception under Article 21. Courts must verify compliance with Sections 41 and 41A, breach entitling bail; no bail application is needed under Sections 88, 170, 204 and 209 where the accused was not arrested; delay and Section 436A favour release, including under special Acts; economic offences are not one class. The Court urged a Bail Act and directed two-week disposal of bail and six-week disposal of anticipatory bail applications.

Issues

Whether, where the accused was not arrested during investigation and has cooperated, the court must insist on custody or a bail application when the charge-sheet is filed under Section 170 CrPC or when exercising powers under Sections 88, 204 and 209.
What consequences follow from non-compliance with Sections 41 and 41A CrPC and the directions in Arnesh Kumar v. State of Bihar.
How the sequence of summons, bailable warrant and non-bailable warrant under Sections 87 and 88 is to be followed.
Whether delay in investigation, trial, appeal or revision, and the mandate of Section 436A, bear on bail including under special Acts such as the NDPS Act and on suspension of sentence under Section 389.
Whether a Magistrate may grant bail under Section 437 for an offence punishable with life imprisonment that is triable by the Magistrate, and whether the proviso favouring women, the sick and persons under sixteen applies under Section 439.
Whether bond and surety conditions under Section 440 may be fixed mechanically or must be within the means of the accused.
Whether economic offences form a single class for denial of bail.

Provisions considered

Sections 41, 41A and 60A, Code of Criminal Procedure, 1973Arrest is not mandatory even for a cognizable offence; for offences up to seven years both reason to believe and satisfaction of necessity for arrest must exist and be recorded, and a Section 41A notice must issue where arrest is not required. Courts must verify compliance when considering bail, non-compliance entitling the accused to bail; all States and UTs to issue standing orders on the lines of Delhi Police Standing Order No. 109 of 2020. (¶¶ 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 73)
Sections 87 and 88, Code of Criminal Procedure, 1973Courts must adopt the sequence of summons, then bailable warrant, then non-bailable warrant (Inder Mohan Goswami); non-bailable warrants are being issued as a matter of course against the tenor of the provision. Section 88 confers a discretionary power to take a bond for appearance (Pankaj Jain), to be exercised keeping Section 440 in mind. (¶¶ 31, 32, 33, 62)
Section 167(2), Code of Criminal Procedure, 1973Default bail is an absolute and indefeasible right flowing from Article 21 that cannot be taken away even in a pandemic (M. Ravindran); detention beyond the period is illegal and courts must give effect to it. A pari materia provision in a special Act has the same effect. (¶¶ 34, 35, 65)
Section 170, Code of Criminal Procedure, 1973Following Siddharth v. State of U.P., 'custody' means only presentation of the accused before the court; where the prosecution does not need custody, no arrest and no bail application is required when the charge-sheet is filed, and the court may use Section 88. If the court is prima facie inclined to remand, the accused must be heard. (¶¶ 36, 65, 73)
Sections 204 and 209, Code of Criminal Procedure, 1973Issuing a warrant under Section 204(1)(b) is the exception, requiring reasons; the Magistrate should ordinarily follow Section 88. Under Section 209 the Magistrate may release on bond or bail even without an application, and must hear the accused and pass a speaking order if remanding. (¶¶ 37, 38, 73)
Section 309, Code of Criminal Procedure, 1973Trials must proceed day to day; unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision violates Article 21 and is a factor favouring bail, independently of Section 436A. (¶¶ 39, 40, 41)
Section 389, Code of Criminal Procedure, 1973The presumption of innocence and 'bail is the rule' may not be available after conviction and mere pendency of appeal is not enough; but delay in taking up the appeal coupled with Section 436A, among other factors, favours release, which must be on the appellant's own bond under sub-section (1). (¶¶ 42, 43, 44, 45)
Section 436A, Code of Criminal Procedure, 1973Mandatory release on personal bond on undergoing half the maximum sentence, custody in investigation, inquiry, trial, appeal and revision all counting; no bail application is needed where delay is not attributable to the accused, and continued detention under the proviso is an exception to be used sparingly. The provision applies to special Acts in the absence of a specific provision, so the rigour of Section 37 NDPS Act does not stand in the way; Bhim Singh directions to be complied with. (¶¶ 46, 47, 48, 64, 73)
Section 437, Code of Criminal Procedure, 1973A Magistrate competent to try an offence punishable with life imprisonment may grant bail; the bar applies to offences punishable with death or life triable exclusively by Sessions (Prahlad Singh Bhati, Balasaheb Satbhai). The proviso for persons under sixteen, women and the sick or infirm is welfare legislation to be considered also when the Sessions Court or High Court acts under Section 439; courts must be sensitive to women prisoners with children. (¶¶ 50, 51, 52, 53, 54, 55, 58)
Section 439, Code of Criminal Procedure, 1973The observations on Section 437 apply to the exercise of power under Section 439; the mandatory notice to the Public Prosecutor and the informant under the provisos must be complied with. (¶¶ 56, 57, 58)
Section 440, Code of Criminal Procedure, 1973The amount of every bond must be fixed with regard to the circumstances and must not be excessive; conditions impossible of compliance defeat the object of release. Sections 436 to 439 are to be read in consonance with it, and High Courts are to identify undertrials unable to meet bail conditions and facilitate their release. (¶¶ 59, 60, 61, 62, 73)
Articles 14, 21 and 22, Constitution of IndiaPresumption of innocence, bail as the rule, speedy trial and the Code's arrest safeguards are facets of Article 21; persons accused of the same offence must not be treated differently, which would offend Article 14. The Court called on the Government of India to consider a Bail Act on the lines of the UK Bail Act, 1976. (¶¶ 11, 18, 19, 25, 69, 70, 71, 72, 73)

Held

More than two-thirds of prison inmates are undertrials, most of them poor and illiterate and many charged with offences punishable with seven years or less who need not have been arrested at all; this reflects a colonial mindset in investigating agencies, whereas arrest is a draconian measure to be used sparingly and a democracy can never be a police State. (¶ 5)
'Trial' is not defined in the Code and must be given an extended meaning for bail purposes, covering the stage of investigation, trial, appeal and revision; the considerations differ between stages, with a more favourable approach to release once investigation is complete. Bail means conditional release on an undertaking to cooperate with investigation and trial. (¶¶ 6, 7, 8, 9)
Bail is the rule and jail the exception, on the touchstone of Article 21; the presumption of innocence places on the prosecution the onus of satisfying the court that arrest was warranted and bail should be denied. The object of bail is to secure attendance, not to punish, and deprivation of liberty before conviction has a substantial punitive content. (¶¶ 11, 12, 13, 17, 18)
Non-compliance with Sections 41 and 41A inures to the benefit of the accused; courts must satisfy themselves of compliance when considering bail and any non-compliance entitles the accused to bail. Both 'reason to believe' and 'satisfaction qua an arrest' must be recorded. Despite Arnesh Kumar no concrete steps have been taken on Section 41A, so all States and Union Territories are directed to issue standing orders on the Delhi Police model, and courts are expected to come down heavily on officers arresting without compliance. (¶¶ 23, 26, 27, 28, 29, 30)
Section 170 confers a power on the court after investigation; where the prosecution does not require custody there is no need for arrest or a bail application when the case is sent to the Magistrate, who can take recourse to Section 88. The same holds for Sections 204 and 209: there need be no insistence on a bail application, a warrant being the exception for which reasons must be recorded, and an accused must be heard before any remand. For special Acts too, where the accused was consciously not arrested or was released on bail, no further arrest at the court's instance is needed. (¶¶ 36, 37, 38, 65, 73)
Whatever the offence, a prolonged trial, appeal or revision against a person in custody violates Article 21; unexplained, avoidable and prolonged delay is a factor for bail. Section 436A is mandatory and substantive, counts custody at all stages including appeal, requires no bail application where the delay is not the accused's, and applies to special Acts; the greater the rigour of a special Act, the quicker the adjudication ought to be. Delay in taking up an appeal coupled with Section 436A favours release under Section 389, on the appellant's own bond. (¶¶ 40, 41, 43, 44, 45, 46, 47, 64)
Bond and surety requirements must not be mechanical or uniform; the court has a mandatory duty under Section 440 to ensure they are not excessive, since imposing a condition impossible of compliance defeats the object of release. Hussainara Khatoon's warning against a property-oriented bail system and the Illinois and California experience were relied on. (¶¶ 59, 60, 61, 62)
Economic offences cannot be classified as a single group to deny bail; gravity, the object of the special Act, the attending circumstances and the sentence are factors to be weighed case by case as laid down in P. Chidambaram v. Directorate of Enforcement and Sanjay Chandra v. CBI. (¶ 66)
The abysmally low conviction rate must not weigh against bail, which is not punitive; criminal courts, the trial court in particular, are the guardian angels of liberty and any conscious failure to protect it is an affront to Article 21. Uniformity and certainty are foundations of judicial dispensation, and persons accused of the same offence must never be treated differently. (¶¶ 67, 68, 71)
Directions issued: the Government of India may consider a Bail Act; investigating agencies must comply with Sections 41, 41A and Arnesh Kumar, dereliction to be reported for action; courts must verify such compliance; States and UTs to issue standing orders; no bail application to be insisted on under Sections 88, 170, 204 and 209; strict compliance with Siddharth; special courts to be constituted and vacancies filled; High Courts to identify undertrials unable to meet bail conditions and act under Section 440; sureties to respect Section 440; Section 436A to be implemented as in Bhim Singh; bail applications to be decided within two weeks and anticipatory bail applications within six weeks, save intervening applications; all States, UTs and High Courts to file status reports within four months. (¶¶ 73, 74, 75)

Result

Miscellaneous applications and applications for clarification disposed of with the directions in paragraph 73; intervention allowed; copy of the judgment to be sent to the Government of India and all States and Union Territories; listed for compliance after four months.