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

Citation: [2022] 10 S.C.R. 351; 2022 INSC 690

Court: Supreme Court of India

Bench: SANJAY KISHAN KAUL , M.M. SUNDRESH

Judgment date: 2022-07-11

Case summary

2022 INSC 690. Supreme Court of India judgment dated 2022-07-11. SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF INVESTIGATION & ANR. Read the judgment and case...

Judgment text

[2022] 10 S. C. R. 351 351 SATENDER KUMAR ANTIL A v. CENTRAL BUREAU OF INVESTIGATION & ANR. (Miscellaneous Application No. 1849 of 2021) B 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/ C 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 D 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 E 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 F 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 G 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 351 352 SUPREME COURT REPORTS [2022] 10 S. C. R. A 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 B 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 C 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 D 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. E 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 F – 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 G 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 H 167 (2). SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 353 INVESTIGATION & ANR. Code of Criminal Procedure, 1973 – Sec.

170 – Scope and A 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 B 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. C 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.

D 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 E 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 F 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 G 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 H 354 SUPREME COURT REPORTS [2022] 10 S. C. R. A 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. B 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, C 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 D 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 E 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 F 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), G 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 H SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 355 INVESTIGATION & ANR. of Sec.

309 – The existence of a pari materia or a similar provision A 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 B 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 C 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 D 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.

E 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 F 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 G 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 H 356 SUPREME COURT REPORTS [2022] 10 S. C. R. A 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.

B 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 C 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 D 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 E 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. F b. ) The investigating agencies and their officers are duty-bound 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. G c. ) The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance 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 H SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 357 INVESTIGATION & ANR. followed under Section 41 and 41A of the Code while taking note A 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 B 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. C 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 D 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 E 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 F 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 G 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] H 358 SUPREME COURT REPORTS [2022] 10 S. C. R. A 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 B 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. C 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 D 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. E 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. F 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 G (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 H SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 359 INVESTIGATION & ANR.

(2019) SCC 18 referred to Para 16 A (2017) SCC 27 referred to Para 16 [2014] 8 SCR 128 referred to Para 25 [2007] 10 SCR 847 referred to Para 32 B [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 C [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 D (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 E [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 F 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 G No. 7598 of 2021. With Miscellaneous Application Diary No. 29164 of 2021 In Special Leave Petition (Crl. ) No. 5191 of 2021 H 360 SUPREME COURT REPORTS [2022] 10 S. C. R. A 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 B 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, C 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 D 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 E 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 F 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 G 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 H guidelines are as under: SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 361 INVESTIGATION & ANR. [M. M. SUNDRESH, J. ] Categories/Types of Offences A 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. B 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 C 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 D (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 E 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.

F 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. G 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 H 362 SUPREME COURT REPORTS [2022] 10 S. C. R. A 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, B 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 C 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 D 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 E 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 F 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: G 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 H SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 363 INVESTIGATION & ANR. [M. M. SUNDRESH, J. ] but simultaneously, the severity of the punishment imposed by the A 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 B 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, C 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, D 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 E 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 F 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 G 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 H 364 SUPREME COURT REPORTS [2022] 10 S. C. R.

A 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 B 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 C 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 D 5.

Jails in India are flooded with undertrial prisoners. The statistics rd placed before us would indicate that more than 2/3 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 E 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, F 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 G 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 H substantially is the proceedings before the Court in the form of a trial. If SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 365 INVESTIGATION & ANR. [M. M. SUNDRESH, J. ] we keep the above distinction in mind, the consequence to be drawn is A 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. B 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 C 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 th D in the Black’s Law Dictionary, 9 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: - E “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 F 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. G 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) H 366 SUPREME COURT REPORTS [2022] 10 S. C. R.

A 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, B 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 C 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 D 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 E 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 F 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 G 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 H SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 367 INVESTIGATION & ANR. [M. M. SUNDRESH, J. ] principle to be deduced from the various sections in the Criminal A 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 B 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 C 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 D 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 E 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 F 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 G 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. ’ H 368 SUPREME COURT REPORTS [2022] 10 S. C. R.

A 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. ” B xxx xxx xxx 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 C 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]. ” D 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 E 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 F 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 G 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 H SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 369 INVESTIGATION & ANR. [M. M. SUNDRESH, J. ] tamper with the witnesses if left at liberty, save in the most A 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 B 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 C 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 D the world. Article 14 (2) of the International Covenant on Civil and Political Rights, 1966 and Article 11 of the Universal Declaration of Human Rights acknowledge the presumption of innocence, as a cardinal principle of law, until the individual is proven guilty. 15. Both in Australia and Canada, a prima facie right to a reasonable bail is recognized based on the gravity of offence. In the E United States, it is a common practice for bail to be a cash deposit. In the United Kingdom, bail is more likely to consist of a set of restrictions. 16. The Supreme Court of Canada in Corey Lee James Myers v.

Her Majesty the Queen, 2019 SCC 18, has held that bail has to be considered on acceptable legal parameters. It thus confers adequate F discretion on the Court to consider the enlargement on bail of which unreasonable delay is one of the grounds. Her Majesty the Queen v. Kevin Antic and Ors. , 2017 SCC 27: “The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It G entrenches the effect of the presumption of innocence at the pre trial stage of the criminal trial process and safeguards the liberty of accused persons. This right has two aspects: a person charged with an offence has the right not to be denied bail without just cause and the right to reasonable bail. Under the first aspect, a H 370 SUPREME COURT REPORTS [2022] 10 S. C. R.

A provision may not deny bail without “just cause” there is just cause to deny bail only if the denial occurs in a narrow set of circumstances, and the denial is necessary to promote the proper functioning of the bail system and is not undertaken for any purpose extraneous to that system. The second aspect, the right to reasonable bail, relates to the terms of bail, including the quantum B of any monetary component and other restrictions that are imposed on the accused for the release period. It protects accused persons from conditions and forms of release that are unreasonable. While a bail hearing is an expedited procedure, the bail provisions are federal law and must be applied consistently and fairly in all C provinces and territories. A central part of the Canadian law of bail consists of the ladder principle and the authorized forms of release, which are found in s. 515(1) to (3) of the Criminal Code.

Save for exceptions, an unconditional release on an undertaking is the default position when granting release. Alternative forms of release are to be imposed in accordance with the ladder principle, D which must be adhered to strictly: release is favoured at the earliest reasonable opportunity and on the least onerous grounds. If the Crown proposes an alternate form of release, it must show why this form is necessary for a more restrictive form of release to be imposed. Each rung of the ladder must be considered individually E and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a judge to order a more restrictive form without justifying the decision to reject the less onerous forms. A recognizance with sureties is one of the most onerous forms of release, and should not be imposed unless all the less onerous F forms have been considered and rejected as inappropriate.

It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court. A recognizance is functionally equivalent to cash bail and has the same coercive G effect. Cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable. When cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should be no higher than necessary to satisfy the concern that would otherwise warrant detention and H SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 371 INVESTIGATION & ANR. [M. M. SUNDRESH, J. ] proportionate to the means of the accused and the circumstances A of the case. The judge is under a positive obligation to inquire into the ability of the accused to pay. Terms of release under s.

515(4) should only be imposed to the extent that they are necessary to address concerns related to the statutory criteria for detention and to ensure that the accused is released. They must B not be imposed to change an accused person’s behaviour or to punish an accused person. Where a bail review is requested, courts must follow the bail review process set out in R. v. St Cloud, 2015 SCC 27, [2015] 2 S. C. R. 328. ” 17. We may only state that notwithstanding the special provisions C in many of the countries world-over governing the consideration for enlargement on bail, courtshave always interpreted them on the accepted principle of presumption of innocence and held in favour of the accused. 18. The position in India is no different. It has been the consistent standof the courts, including this Court, that presumption of innocence, being a facet of Article 21, shall inure to the benefit of the accused.

D Resultantly burden is placed on the prosecution to prove the charges to the court of law. The weightage of the evidence has to be assessed on the principle of beyond reasonable doubt. PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE E “An uncontrolled power is the natural enemy of freedom” -Harold Laski in ‘Liberty in the Modern State’ 19. The Code of Criminal Procedure, despite being a procedural law, is enacted on the inviolable right enshrined under Article 21 and 22 of the Constitution of India. The provisions governing clearly exhibited F the aforesaid intendment of the Parliament. 20. Though the word ‘bail’ has not been defined as aforesaid, Section 2A defines a bailable and non-bailable offense. A non-bailable offense is a cognizable offense enabling the police officer to arrest without a warrant. To exercise the said power, the Code introduces certain G embargoes by way of restrictions.

Section 41, 41A and 60Aof the Code CHAPTER V ARREST OF PERSONS H 372 SUPREME COURT REPORTS [2022] 10 S. C. R. A 41. When police may arrest without warrant.

—(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person— (a) who commits, in the presence of a police officer, a cognizable offence; B (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, C namely:— (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (ii) the police officer is satisfied that such arrest is D necessary— (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence E of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to F dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making G such arrest, his reasons in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.

H SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 373 INVESTIGATION & ANR. [M. M. SUNDRESH, J.

] (ba) against whom credible information has been A received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to B believe on the basis of that information that such person has committed the said offence; (c) who has been proclaimed as an offender either under this Code or by order of the State Government; or C (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or D (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or (f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or E (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, F if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (h) who, being a released convict, commits a breach G of any rule made under sub-section (5) of section 356; or (i) for whose arrest any requisition, whether written or oral, has been received from another police H 374 SUPREME COURT REPORTS [2022] 10 S.

C. R. A officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. B (2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate. C 41A. Notice of appearance before police officer.

—(1) [The police officer shall], in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been D received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. E (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms F of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice. xxx xxx xxx G 60A. Arrest to be made strictly according to the Code. — No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest. ” H SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 375 INVESTIGATION & ANR. [M. M. SUNDRESH, J. ] 21. Section 41 under Chapter V of the Code deals with the arrest A of persons. Even for a cognizable offense, an arrest is not mandatory as can be seen from the mandate of this provision.

If the officer is satisfied that a person has committed a cognizable offense, punishable with imprisonment for a term which may be less than seven years, or which may extend to the said period, with or without fine, an arrest could only B follow when he is satisfied that there is a reason to believe or suspect, that the said person has committed an offense, and there is a necessity for an arrest. Such necessity is drawn to prevent the committing of any further offense, for a proper investigation, and to prevent him/her from either disappearing or tampering with the evidence. He/she can also be arrested to prevent such person from makingany inducement, threat, or C promise to any person according to the facts, so as to dissuade him from disclosing said facts either to the court or to the police officer. One more ground on which an arrest may be necessary is when his/her presence is required after arrest for production before the Court and the same cannot be assured. D 22.

This provision mandates the police officer to record his reasons in writing while making the arrest. Thus, a police officer is duty-bound to record the reasons for arrest in writing. Similarly, the police officer shall record reasons when he/she chooses not to arrest. There is no requirement of the aforesaid procedure when the offense alleged is more than seven years, among other reasons. E 23. The consequence ofnon-compliance with Section 41 shall certainly inureto the benefit of the person suspected of the offense. Resultantly, while considering the application for enlargement on bail, courts will have to satisfy themselves on the due compliance of this provision. Any non-compliance would entitle the accused toa grant of F bail. 24.

Section 41A deals with the procedure for appearance before the police officer who is required to issue a notice to the person against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed G a cognizable offence, and arrest is not required under Section 41(1). Section 41B deals with the procedure of arrest along with mandatory duty on the part of the officer. 25. On the scope and objective of Section 41 and 41A, it is obvious that they are facets of Article 21 of the Constitution. We need not H 376 SUPREME COURT REPORTS [2022] 10 S. C. R. A elaborate any further, in light of the judgment of this Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273: “7. 1.

From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot B be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation C of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise 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 D court whenever required cannot be ensured.

These are the conclusions, which one may reach based on facts. 7. 2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while E making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest. 7. 3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only F after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before 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 G from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC. 8. An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India H and Section 57 CrPC to be produced before the Magistrate without SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 377 INVESTIGATION & ANR. [M. M. SUNDRESH, J. ] unnecessary delay and in no circumstances beyond 24 hours A excluding the time necessary for the journey: 8. 1. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 CrPC. The power to authorise detention is a very B solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution.

Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. C 8. 2. Before a Magistrate authorises detention under Section 167 CrPC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section D 41 of the Code, Magistrate is duty-bound not to authorise his further detention and release the accused.

In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that the condition precedent for arrest E under Section 41 CrPC has been satisfied and it is only thereafter that he will authorise the detention of an accused. 8. 3. The Magistrate before authorising detention will record his own satisfaction, may be in brief but the said satisfaction must reflect from his order. It shall never be based upon the F ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement, etc.

the police officer shall G furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording his satisfaction in writing that the Magistrate will authorise the detention of the accused. H 378 SUPREME COURT REPORTS [2022] 10 S. C. R. A 8. 4. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant, and secondly, a reasonable conclusion could at all be reached by the police officer that one or the other conditions B stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny. 9.

…The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused C to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this D stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid. 10.

We are of the opinion that if the provisions of Section 41 CrPC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously E enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the F reasons contained in Section 41 CrPC for effecting arrest be discouraged and discontinued. 11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure G 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 H Section 41 CrPC; SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 379 INVESTIGATION & ANR. [M. M. SUNDRESH, J. ] 11. 2. All police officers be provided with a check list containing A 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 the Magistrate for further detention; B 11. 4. The Magistrate while authorising 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 authorise detention; C 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; D 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 the 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 E 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. Authorising detention without recording reasons as F 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 cases under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where G offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine. ” 26. We only reiterate that the directions aforesaid ought to be complied with in letter and spirit by the investigating and prosecuting H 380 SUPREME COURT REPORTS [2022] 10 S. C. R. A agencies, while the view expressed by us 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. 27. Despite the dictum of this Court in Arnesh Kumar (supra), no concrete step has been taken to comply with the mandate of Section B 41A of the Code.

This Court has clearly interpreted Section 41(1)(b)(i) and (ii) inter alia holding that notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present. Thus, sub-clause (1)(b)(i) of Section 41 has to be read along with sub-clause (ii) and therefore both the elements of ‘reason to believe’ and ‘satisfaction qua an arrest’ are mandated and accordingly C are to be recorded by the police officer. 28. It is also brought to our notice that there are no specific guidelines with respect to the mandatory compliance of Section 41A of the Code. An endeavour was made by the Delhi High Court while deciding Writ Petition (C) No. 7608 of 2017 vide order dated 07. 02. 2018, followed D by order dated 28. 10. 2021 in Contempt Case (C) No. 480 of 2020 & CM Application No. 25054 of 2020, wherein not only the need for guidelines but also the effect of non-compliance towards taking action against the officers concerned was discussed.

We also take note of the fact that a standing order has been passed by the Delhi Police viz. , Standing Order No. 109 of 2020, which provides for a set of guidelines E in the form of procedure for issuance of notices or orders by the police officers. Considering the aforesaid action taken, in due compliance with the order passed by the Delhi High Court in Writ Petition (C) No. 7608 of 2017 dated 07. 02. 2018, this Court has also passed an order in Writ Petition (Crl. ) 420 of 2021 dated 10. 05. 2021 directing the State of Bihar F to look into the said aspect of an appropriate modification to give effect to the mandate of Section 41A. A recent judgment has also been rendered on the same lines by the High Court of Jharkhand in Cr. M. P. No. 1291 of 2021 dated 16. 06. 2022. 29. Thus, we deem it appropriate to direct all the State G Governments and the Union Territories to facilitate standing orders while taking note of the standing order issued by the Delhi Police i. e.

, Standing Order No. 109 of 2020, to comply with the mandate of Section 41A. We do feel that this would certainly take care of not only the unwarranted arrests, but also the clogging of bail applications before various Courts as they may not even be required for the offences up to seven years. H SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 381 INVESTIGATION & ANR. [M. M. SUNDRESH, J. ] 30. We also expect the courts to come down heavily on the officers A effecting arrest without due compliance of Section 41 and Section 41A. We express our hope that the Investigating Agencies would keep in mind the law laid down in Arnesh Kumar (Supra), the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If B discretion is exercised to effect such an arrest, there shall be procedural compliance.

Our view is also reflected by the interpretation of the specific provision under Section 60A of the Codewhich warrants the officer concerned to make the arrest strictly in accordance with the Code. Section 87 and 88 ofthe Code C “87. Issue of warrant in lieu of, or in addition to, summons. —A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest— D (a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or (b) if at such time he fails to appear and the summons is E proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure 88. Power to take bond for appearance.

—When any person for whose appearance or arrest the officer presiding in any F Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial. ” G 31. When the courts seek the attendance of aperson, either a summons or a warrant is to be issued depending upon the nature and facts governing the case. Section 87 gives the discretion to the court to issue a warrant, either in lieu of or in addition to summons. The exercise of the aforesaid power can only be done after recording of reasons. A warrant can be either bailable or non-bailable. Section 88 of the Code H 382 SUPREME COURT REPORTS [2022] 10 S. C. R. A empowers the Court to take a bond for appearance of a person with or without sureties. 32.

Considering the aforesaid two provisions,courts will have to adopt the procedure in issuing summons first, thereafter a bailable warrant, and then a non-bailable warrant may be issued, if so warranted,as held by this Court in Inder Mohan Goswami v. State of Uttaranchal, (2007) B 12 SCC 1. Despite the aforesaid clear dictum, we notice that non-bailable warrants are issued as a matter of course without due application of mind and against the tenor of the provision, which merely facilitates a discretion, which is obviously to be exercised in favour of the person whose attendance is sought for, particularly in the light of liberty enshrined C under Article 21 of the Constitution. Therefore, valid reasons have to be given for not exercising discretion in favour of the said person. This Court in Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1, has held that: “50. Civilised countries have recognised that liberty is the most D precious of all the human rights.

The American Declaration of Independence, 1776, French Declaration of the Rights of Men and the Citizen, 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, 1966 all speak with one voice—liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution E proclaims that no one shall be deprived of his liberty except in accordance with procedure prescribed by law. 51. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts F have to be extremely careful before issuing non-bailable warrants. 52. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilised society.

Sometimes in the larger interest of the public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, G only then the non-bailable warrants should be issued. When non-bailable warrants should be issued 53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when: H SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 383 INVESTIGATION & ANR. [M. M. SUNDRESH, J. ] • it is reasonable to believe that the person will not voluntarily A appear in court; or • the police authorities are unable to find the person to serve him with a summon; or • it is considered that the person could harm someone if not B placed into custody immediately. 54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred.

The warrants either bailable or non-bailable should never be issued C without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive. D 55. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court’s proceeding intentionally, the process of issuance of the E non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants. 56.

The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance F both personal liberty and societal interest before issuing warrants. There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be G avoided. 57. The court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant. ” H 384 SUPREME COURT REPORTS [2022] 10 S. C. R. A 33. On the exercise of discretion under Section 88, this Court in Pankaj Jain v. Union of India, (2018) 5 SCC 743, has held that: “12.

The main issue which needs to be answered in the present appeal is as to whether it was obligatory for the Court to release the appellant by accepting the bond under Section 88 CrPC on B the ground that he was not arrested during investigation or the Court has rightly exercised its jurisdiction under Section 88 in rejecting the application filed by the appellant praying for release by accepting the bond under Section 88 CrPC. 13. Section 88 CrPC is a provision which is contained in Chapter C VI “Processes to Compel Appearance” of the Code of Criminal Procedure, 1973. Chapter VI is divided in four sections — A. Summons; B. Warrant of arrest; C. Proclamation and Attachment; and D. Other rules regarding processes. Section 88 provides as follows: “88. Power to take bond for appearance.

—When any D person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or warrant, is present in such court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such court, or any other court to which the case may be E transferred for trial. ” 14. We need to first consider as to what was the import of the words “may” used in Section 88. xxx xxx xxx F 22. Section 88 CrPC does not confer any right on any person, who is present in a court. Discretionary power given to the court is for the purpose and object of ensuring appearance of such person in that court or to any other court into which the case may be transferred for trial.

Discretion given under Section 88 to the court does not confer any right on a person, who is present in the G court rather it is the power given to the court to facilitate his appearance, which clearly indicates that use of the word “may” is discretionary and it is for the court to exercise its discretion when situation so demands. It is further relevant to note that the word used in Section 88 “any person” has to be given wide H SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 385 INVESTIGATION & ANR. [M. M. SUNDRESH, J. ] meaning, which may include persons, who are not even accused A in a case and appeared as witnesses. ” Section 167(2)of the Code 167. Procedure when investigation cannot be completed in twenty-four hours.

— B (1) xxx xxx xxx (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term C not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that— D (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a E total period exceeding,— (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other F offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of G Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody H 386 SUPREME COURT REPORTS [2022] 10 S.

C. R. A of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the B custody of the police. Explanation I. —For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in Para (a), the accused shall be detained in custody so long as he does not furnish bail. C Explanation II. —If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the D case may be.

Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution. ” E 34. Section 167(2) was introduced in the year 1978, giving emphasis to the maximum period of time to complete the investigation. This provision 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 Article 21. Presumption of innocence is also F inbuilt in this provision. An investigating agency has to expedite the process of investigation as a suspect is languishing under incarceration. Thus, 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.

The right enshrined is an absolute and indefeasible one, inuring to the G benefit of suspect. Such a right cannot be taken away even during any unforeseen circumstances, such as the recent pandemic, as held by this court in M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 SCC 485: “II. Section 167(2) and the Fundamental Right to Life and H Personal Liberty SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 387 INVESTIGATION & ANR. [M. M. SUNDRESH, J. ] 17. Before we proceed to expand upon the parameters of the A right to default bail under Section 167(2) as interpreted by various decisions of this Court, we find it pertinent to note the observations made by this Court in Uday Mohanlal Acharya [Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760] on the fundamental right to personal liberty B of the person and the effect of deprivation of the same as follows: (SCC p. 472, para 13) “13.

… Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the

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