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Court On Its Own Motion vs State on 13 November, 2018

$-
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 10.10.2018
% Judgment delivered on: 13.11.2018

+ CRL.REF.1/2018

COURT ON ITS OWN MOTION
….. Petitioner
Through: Mr. Sumeet Verma, Amicus Curiae
with Ms. Preeti Jakhar, Advocate.
versus
STATE
….. Respondent
Through: Mr. Rahul Mehra, Standing Counsel
with Mr. Chaitanya Gosain, Adv for
the State . Mr Rajat Katyal, APP

CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MR. JUSTICE I.S. MEHTA

JUDGMENT

VIPIN SANGHI, J.

1. The present is a reference received from the learned CMM (North
West), Rohini Courts, Delhi under section 395(2) Cr PC.

2. Before setting out the questions of law raised by the learned CMM,
we may set out the background in which the said questions of law have been
referred for decision of this Court. Nitin Kumar Aggarwal is one of the
accused in case FIR 136/2013, PS EOW. His anticipatory bail application
under section 438 Cr PC was dismissed by this court on 30.05.2017.

Crl.Ref.1/2018 Page 1 of 32

Despite the said dismissal, he was not arrested and he had been charge
sheeted under section 406/420/120B IPC without arrest, vide charge sheet/
final report filed on 23.08.2017. Cognizance of the offence was taken by the
learned Magistrate on 30.08.2017 qua all the accused, including Nitin
Kumar Aggarwal. Once summoned, the accused moved the application to
seek bail under Section 437 Cr P.C. The learned CMM was dealing with that
application moved by the said accused for release on regular bail under
Section 437 Cr.P.C.

3. That aforesaid application for bail was opposed by the complainant.
The complainant moved an application for issuance of non bailable
warrants, and for a direction to the Investigating Officer (IO) to arrest the
accused Nitin Kumar Aggarwal. The court called for a report from the IO,
who filed the report dated 21.12.2017. The said report disclosed that two
other accused in the case were arrested, but were later released on bail by the
court. So far as Nitin Kumar Aggarwal is concerned, he moved an
application to seek anticipatory bail under section 438 Cr PC. Vide order
dated 04.12.2014, he was granted interim protection against coercive action.
By the subsequent order dated 03.07.2015, the said interim order was made
absolute and the application for grant of anticipatory bail was favourably
disposed of. However, subsequently, the said order was recalled and
vacated on 25.05.2017 and the petition for anticipatory bail of Nitin Kumar
Aggarwal was dismissed on 30.05.2017.

4. In his report, the IO stated that the investigation in the case had been
completed and Nitin Kumar Aggarwal was not arrested as his arrest was not
required at that stage. There was no direction by this Court – in its order

Crl.Ref.1/2018 Page 2 of 32
dated 30.05.2017, to arrest Nitin Kumar Aggarwal. He was formally arrested
after the anticipatory bail application was disposed of, and was released on
bail as per law. Nitin Kumar Aggarwal had joined the investigation as and
when required, and it was of no use to arrest Nitin Kumar Aggarwal twice.

5. In the order of reference, the learned CMM has taken note of the
decision of this Court in a decision of a Ld. Single Judge of this Court in
Court on its Own Motion v. C.B.I, 2004 (72) DRJ 629 (referred to as Court
on its own motion (1)) and “Court on its Own Motion v. State
(Manu/DE/3926/2017 also reported as 243 (2017) DLT 373 (DB) (referred
to as Court on its own motion (2)) decided by a Division Bench of this
Court. We shall refer to these decisions a little latter in our opinion.

6. The learned CMM before framing the questions of law on which the
decision of this court is sought, observed as follows:

“The question that arises for consideration is for what purpose,
the accused is to be sent in JC at this stage of proceedings, and
if he is sent in JC, then for how long?

If the ratio of the judgments in the matter of Courts by its
Own Motion (Supra) to be applied, there is no discretion left
with this court, but to release the accused on bail, but, at the
same time, the fact of dismissal of anticipatory bail by Hon‟ble
Delhi High Court cannot be ignored. Thus, this court thinks it
fit to make a reference u/s 395 (2) Cr.P.C on the following
points”

7. In the aforesaid background, the following questions of law have been
referred to this court for our consideration:

Crl.Ref.1/2018 Page 3 of 32

“A) Whether, in the given facts, this court needs to refer to
the order of Hon’ble Delhi High Court rejecting the
anticipatory bail application, while considering regular
bail application of the accused?

B) Whether this court needs to delve upon the reasons of
non- arrest given by investigating agency after rejection
of anticipatory bail of the accused by the Hon’ble High
Court?

C) Whether the effect of anticipatory bail application, be it
allowed or rejected, stands ceased with the filing of
charge-sheet so as to consider the regular bail
application without looking into the anticipatory bail
application filed during investigation?

D) Whether while deciding the bail application of the
accused charge-sheeted without arrest, the court can
delve into the reasons of non-arrest of the accused,
considering the gravity of offence?”

8. An additional question of law has been referred to this Court on the
ground that the same arises in two other cases pending before the same
court, wherein the accused were charge sheeted under section 376 IPC
without being arrested. The learned CMM, after making reference of the
said two other cases, observed as follows:

“In the aforesaid two matters pending before this court, the
accused persons have been charge sheeted without arrest.
After taking cognizance, summons has been issued to the
accused persons. On appearance, this court is bound to follow
the ratio of judgments in the matter of Court by its Own Motion
vs. C.B.I (supra) and Court by its Own Motion vs. State (supra)
to release the accused on bail. However, Section 437 (i) Cr PC
provides that a magistrate can not release a person on bail if
there appears reasonable ground that he has been guilty for
offence punishable with death or imprisonment for life.

Crl.Ref.1/2018 Page 4 of 32

So, Section 437 (i) bars the magistrate from releasing the
accused on bail, thereby leaving only one option to the
Magistrate to send the accused in JC who has been charge
sheeted without arrest, and sending him in JC will be in
violation of the judgments of Hon‟ble Delhi High Court in the
matter of Court on its Own Motion Vs State (supra) and Court
on its Own Motion v. CBI (supra).

Further, in few cases, charge sheet is filed without arrest
during pendency of anticipatory bail application of the accused
person which is later on dismissed, but before its dismissal, the
accused is admitted on bail by the court in the compliance of
judgments of the Hon‟ble Delhi High Court in the matter of
Court on its Own Motion Vs State (supra) and Court on its
Own Motion v. CBI (supra)”.

9. In the aforesaid background, the following additional question of law
has been referred by the learned CMM:

“E) Whether this court can release the accused on bail
charge sheeted without arrest under section 376 IPC or any
other offence punishable with imprisonment of life or death in
view of bar under section 437(1)[sic 437(i)] Cr. P.C”

10. To assist this court in answering the questions, we appointed Mr.
Sumeet Verma, Advocate as amicus curiae. We have heard his submissions
as well as of the Standing Counsel Mr. Rahul Mehra, and we proceed to
answer the reference.

11. At the outset, we may state that we are dealing with a specific fact
situation, namely, where the accused in respect of a cognizable non- bailable
offence is not arrested during investigation by the police, and the charge
sheet is filed before the Magistrate without such arrest/ detention. Our
discussion is relevant to this situation.

Crl.Ref.1/2018 Page 5 of 32

12. It is a well settled position in law that merely because the anticipatory
bail application of the accused may have been rejected, the same does not
lead to the automatic consequence of his arrest. The dismissal of the said
application leaves the accused unprotected against his arrest, but it does not
visit the accused with the inevitable consequence of his being taken into
custody by the police. The Supreme Court in M.C. Abraham and Ors. v.
State of Maharshtra and Ors, (2003)2SCC649 was dealing with a challenge
to orders passed by the Nagpur Bench of the High Court of Bombay
whereby the High Court, inter alia, directed the State to cause the arrest of
the accused and to produce them before the Court. This direction came in a
petition raising a grievance that investigation had not made progress on the
complaint filed by the Provident Fund Commissioner against the accused, on
account of their influence and clout. The Supreme Court set aside the
direction issued by the High Court. The Supreme Court observed:

“14…….In the first place, arrest of an accused is a part of the
investigation and is within the discretion of the investigating
officer. Section 41 of the Code of Criminal Procedure provides
for arrest by a police officer without an order from a
Magistrate and without a warrant. The section gives discretion
to the police officer who may, without an order from a
Magistrate and even without a warrant, arrest any person in
the situations enumerated in that section. It is open to him, in
the course of investigation, to arrest any person who has been
concerned with any cognizable offence or against whom
reasonable complaint has been made or credible information
has been received, or a reasonable suspicion exists of his
having been so concerned. Obviously, he is not expected to act
in a mechanical manner and in all cases to arrest the accused
as soon as the report is lodged. In appropriate cases, after
some investigation, the investigating officer may make up his
mind as to whether it is necessary to arrest the accused

Crl.Ref.1/2018 Page 6 of 32
person. At that stage the court has no role to play. Since the
power is discretionary, a police officer is not always bound to
arrest an accused even if the allegation against him is of
having committed a cognizable offence. Since an arrest is in
the nature of an encroachment on the liberty of the subject and
does affect the reputation and status of the citizen, the power
has to be cautiously exercised. It depends inter alia upon the
nature of the offence alleged and the type of persons who are
accused of having committed the cognizable offence. Obviously,
the power has to be exercised with caution and circumspection.

15. In the instant case the appellants had not been arrested. It
appears that the result of the investigation showed that no
amount had been defalcated. We are here not concerned with
the correctness of the conclusion that the investigating officer
may have reached. What is, however, significant is that the
investigation officer did not consider it necessary, having
regard to all the facts and circumstances of the case, to arrest
the accused. In such a case there was no justification for the
High Court to direct the State to arrest the appellants against
whom the first information report was lodged, as it amounted to
unjustified interference in the investigation of the case. The
mere fact that the bail applications of some of the appellants
had been rejected is no ground for directing their immediate
arrest. In the very nature of things, a person may move the
Court on mere apprehension that he may be arrested. The
Court may nor may not grant anticipatory bail depending
upon the facts and circumstances of the case and the material
placed before the Court. There may, however, be cases where
the application for grant of anticipatory bail may be rejected
and ultimately, after investigation, the said person may not be
put up for trial as no material is disclosed against him in the
course of investigation. The High Court proceeded on the
assumption that since petitions for anticipatory bail had been
rejected, there was no option open for the State but to arrest
those persons. This assumption, to our mind, is erroneous. A
person whose petition for grant of anticipatory bail has been
rejected may or may not be arrested by the investigating
officer depending upon the facts and circumstances of the

Crl.Ref.1/2018 Page 7 of 32
case, nature of the offence, the background of the accused,
the facts disclosed in the course of investigation and other
relevant considerations.”(emphasis supplied)

13. Thus, as noticed above, the mere rejection of the Anticipatory Bail
Application of the accused is no ground to arrest the accused.
Considerations for arrest during investigation of the cognizable non- bailable
offence by the police are set out in Section 41 of the Cr.P.C. Mere rejection
of the Anticipatory Bail Application is not one of them.

14. What follows from the above discussion is that it is not essential that
in every case involving a cognizable and non-bailable offence, when the
final report/ chargesheet is filed, the accused must be produced before the
Magistrate in custody. In this regard, we may also refer to the decision in
Court on its own motion (1) (supra). The learned Single Judge examined
Section 170 Cr.P.C. which provides that where it appears to the officer in
charge of a police station that there is sufficient evidence or reasonable
ground for believing that the accusation or information is well founded, such
officer shall forward the accused under custody to a Magistrate (empowered
to take cognizance of the offence upon a police report and to try the accused
or to commit him for trial), in case the offence is not bailable. The learned
Single Judge observed in the aforesaid decision that the word “custody”-
appearing in Section 170, does not contemplate either police or judicial
custody. It merely connotates presentation of accused by the investigating
officer before the Court, at the time of filing of the charge sheet, whereafter
the role of the Court starts. The learned Single Judge went on to observe:

“16. In case the police/Investigating Officer thinks it
unnecessary to present the accused in custody for the reason

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that accused would neither abscond nor would disobey the
summons as he has been co-operating in investigation and
investigation can be completed without arresting him, the I.O.
is not obliged to produce such an accused in custody.

17. Thus, the only meaning of sub-clause (g) of sub-section (2)

(i) of Section 173 Cr.P.C “whether the accused has been
forwarded in custody under Section 170″ is with regard to the
information that whether the accused is being forwarded under
custody or not. Nothing more nothing less. Section 1-73 Cr.P.C.
confines to providing the said information.”

15. The learned Single Judge further observed:

“20………..In normal and ordinary course the police should
always avoid arresting a person and sending him to jail, if it is
possible for the police to complete the investigation without his
arrest and if every kind of co-operation is provided by the
accused to the Investigating Officer in completing the
investigation. It is only in cases of utmost necessity, where the
investigation cannot be completed without arresting the person,
for instance, a person may be required for recovery of
incriminating articles or weapon of offence or for eliciting
some information”

16. The learned Single Judge proceeded to issue certain directions to
criminal courts. Direction number (v) reads as follows:

“(v) The Court shall on appearance of an accused in non-
bailable offence who has neither been arrested by the
police/Investigating agency during investigation nor produced
in custody as envisaged in Section 170 Cr.P.C. call upon the
accused to move a bail application if the accused does not move
it on his own and release him on bail as the circumstance of his
having not been arrested during investigation or not being
produced in custody is itself sufficient to entitle him to be
released on bail. Reason is simple. If a person has been at large
and free for several years and has not been even arrested
during investigation, to send him to jail by refusing bail

Crl.Ref.1/2018 Page 9 of 32
suddenly, merely because chargesheet has been filed is against
the basic principles governing grant or refusal of bail.”

17. This decision of the learned Single Judge was relied upon by the
Division Bench while answering the reference in Court on its Own Motion
(2) (supra).

18. To answer the reference we need to examine Section 437 Cr.P.C.
The same reads as follows:

“437. When bail may be taken in case of non- bailable offence-
(1) When any person accused of, or suspected of, the
commission of any non- bailable offence is arrested or detained
without warrant by an officer in charge of a police station or
appears or is brought before a Court other than the High
Court or Court of Session, he may be released on bail, but-

(i) such person shall not be so released if there appear
reasonable grounds for believing that he has been guilty of an
offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a
cognizable offence and he had been previously convicted of an
offence punishable with death, imprisonment for life or
imprisonment for seven years or more, or he had been
previously convicted on two or more occasions of a non-
bailable and cognizable offence:

Provided that the Court may direct that a person referred to in
clause (i) or clause (ii) be released on bail it such person is
under the age of sixteen years or is a woman or is sick or
infirm:

Provided further that the Court may also direct that a person
referred to in clause (ii) be released on bail if it is satisfied that
It is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be
required for being identified by witnesses during investigation

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shall not be sufficient ground for refusing to grant bail if he is
otherwise entitled to be released on bail and gives an
undertaking that he shall comply with such directions as may
be given by the Court.]
(2) If it appears to such officer or Court at any stage of the
investigation, inquiry or trial, as the case may be, that there are
not reasonable grounds for believing that the accused has
committed a non- bailable offence, but that there are sufficient
grounds for further inquiry into his 1 guilt the accused shall,
subject to the provisions of section 446A and pending such
inquiry, be released on bail] or at the discretion of such officer
or Court, on the execution by him of a bond without sureties for
his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of
an offence punishable with imprisonment which may extend to
seven years or more or of an offence under Chapter VI,
Chapter XVI or Chapter XVII of the Indian Penal Code or
abetment of, or conspiracy or attempt to commit, any such
offence, is released on bail under sub- section (1), the Court
may impose any condition which the Court considers
necessary-

(a) in order to ensure that such person shall attend in
accordance with the conditions of the bond executed under this
Chapter, or

(b) in order to ensure that such person shall not commit an
offence similar to the offence of which he is accused or of the
commission of which he is suspected, or

(c) otherwise in the interests of justice.

(4) An officer or a Court releasing any person on bail under
sub- section (1) or sub- section (2), shall record in writing his
or its1 reasons or special seasons] for so doing.
(5) Any Court which has released a person on bail under sub-
section (1) or sub- section (2), may, if it considers it necessary

Crl.Ref.1/2018 Page 11 of 32
so to do, direct that such person be arrested and commit him to
custody.

(6) If, in any case triable by a Magistrate, the trial of a person
accused of any non- bailable offence is not concluded within a
period of sixty days from the first date fixed for taking evidence
in the case, such person shall, if he is in custody during the
whole of the said period, be released on bail to the satisfaction
of the Magistrate, unless for reasons to be recorded in writing,
the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a person
accused of a non- bailable offence and before judgment is
delivered, the Court is of opinion that there are reasonable
grounds for believing that the accused is not guilty of any such
offence, it shall release the accused, if he is in custody, on the
execution by him of a bond without sureties for his appearance
to hear judgment delivered.”

19. Sub-section (1) of Section 437 states that when the accused or suspect
in respect of a non bailable offence is arrested/ detained without a warrant,
or appears or is brought before the Court ” he may be released on bail, but –
…………”. What follow are the exceptions to this general rule, which are
contained in sub clauses (i) and (ii). There are 4 provisos contained in sub
section (1) of Section 437 – the first 3 of which seek to limit the scope of the
exceptions contained in sub clauses (i) and (ii). The exceptions carved out
in sub clauses (i) and (ii) of Section 437 (1) relate to, firstly, cases where
the punishment for the offence – which the Court reasonably believes to
have been committed, is either the capital punishment, or imprisonment for
life, and, secondly, cases of repeat offenders of the kind described in clause

(ii), respectively. The language used in clause (i) shows that even in cases
where the case/ FIR is registered and charge sheet is filed for offence(s)

Crl.Ref.1/2018 Page 12 of 32
which prescribe either death, or imprisonment for life as punishment, and
there are not enough grounds for the Court to believe that the accused is
guilty of the offence, he may be released on bail. The phraseology in which
clause (1) of Section 437 is couched reflects the well settled and accepted
principle that bail is the rule, and jail is the exception.

20. However, in a case where the accused is named in a case/FIR for
commission of an offence which prescribes either death, or imprisonment
for life, as punishments and there appear reasonable grounds for believing
that the accused is guilty of such an offence, the Court shall not consider
releasing him on bail under Section 437(1), unless one or more of the
circumstances set out in the first two proviso of section 437(1) Cr PC are
made out. He would be taken into judicial custody, even though, he may
not have been arrested or detained by the officer in charge of the police
station and he may appear on his own, or may be brought before the Court in
response to summons issued to him upon taking of cognizance of the case by
the Magistrate. The remedy of such an accused would be to move an
application to seek bail under Section 439 Cr P.C. to the Court of Sessions,
or to the High Court (which is not the Court under Section 437(1)). Once
moved, that application would be considered by the Court of Sessions, or the
High Court – as the case may be, by application of the principles for grant/
refusal of bail taken note of hereinafter.

21. Similarly, clause (ii) of Section 437 (1) relates to situations where the
accused is a previous convict for an offence punishable with imprisonment
for life, or imprisonment for seven years or more. It also relates to cases

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where the accused has been repeatedly convicted on two or more occasions
for commission of cognizable offences punishable with imprisonment for
three years or more, but less than seven years.

22. Thus, in the cases falling under clause (i) and (ii) of Section 437 (1),
even though the accused may not have been produced in custody/ detention
before the Magistrate while filing the charge sheet, when the accused
appears before the Court of the Magistrate, the Magistrate would take such
an accused into custody and shall not release him on bail, unless the case is
covered by one or more of the first two provisos which follow Clause (ii) of
Section 437 (1) Cr.P.C. As aforesaid, the remedy of such an accused would
lie under Section 439 Cr P.C. either before the Court of Sessions or the High
Court.

23. While dealing with the application of the accused for grant of bail (in
cases which do not fall within clauses (i) and (ii) of Sub-Section (1) of
Section 437, or which are covered by one or more of the first two provisos
to Sub-Section (1) of Section 437), the Court would bestow consideration
upon the well settled principles upon which the Court of Sessions or the
High Court – as the case may be, may grant or refuse bail under Section
439Cr.P.C.

24. Thus, at this stage, we may notice a few decisions on the law relating
to grant or denial of bail by the Court.

25. In State of Rajasthan V. Balchand, AIR 1977 SC 2447, the Supreme
Court observed:

Crl.Ref.1/2018 Page 14 of 32

“2. The basic rule may perhaps be tersely put as bail, not jail,
except where there are circumstances suggestive of fleeing from
justice or thwarting the course of justice or creating other
troubles in the shape of repeating offences or intimidating
witnesses and the like, by the petitioner who seeks enlargement
on bail from the Court. We do not intend to be exhaustive but
only illustrative.”

26. The Supreme Court recognized the fact that the gravity and
heinousness of the offence in which the accused is involved must weigh
with the Court while considering the question of bail or jail, since these
aspects are likely to induce the accused to avoid the course of justice. The
Supreme Court took notice of the conduct of the accused before it – that he
was on bail throughout the proceedings before the Trial Court and after his
acquittal by the Trial Court, and there was nothing to suggest that he had
abused the trust placed in him by the Court. He was not a desperate
character or unsocial element, who was likely to betray the confidence that
the Court may place in him to turn up to take justice at the hands of the
Court. His age, circumstances and social milieu were also considered by the
Court while granting him bail, subject to conditions.

27. We may also notice the exhaustive judgment of the Supreme Court in
Sanjay Chandra v. Central Bureau of Investigation (2012) 1SCC 40. In
this decision the Supreme Court was dealing with a situation where the
accused had been denied bail by the High Court under Section 439 Cr.P.C.
The Supreme Court observed:

“25. The provisions of CrPC confer discretionary jurisdiction
on criminal courts to grant bail to the accused pending trial or
in appeal against convictions; since the jurisdiction is
discretionary, it has to be exercised with great care and

Crl.Ref.1/2018 Page 15 of 32
caution by balancing the valuable right of liberty of an
individual and the interest of the society in general. In our
view, the reasoning adopted by the learned District Judge,
which is affirmed by the High Court, in our opinion, is a denial
of the whole basis of our system of law and normal rule of bail
system. It transcends respect for the requirement that a man
shall be considered innocent until he is found guilty. If such
power is recognised, then it may lead to chaotic situation and
would jeopardise the personal liberty of an individual.”
(emphasis supplied)

28. The Supreme Court observed that it had “time and again stated that
bail is the rule and committal to jail an exception. … … refusal of bail is a
restriction on the personal liberty of the individual guaranteed under Article
21 of the Constitution.” The Supreme Court referred to its earlier decision
in Gudikanti Narasimhulu v. Public Prosecutor [(1978) 1 SCC 240 : 1978
SCC (Cri) 115], wherin after setting out the discipline that the Court is
bound to adhere to in the matter of exercise of judicial discretion in the
matter of grant/ refusal of bail, it observed:

“6. Let us have a glance at the pros and cons and the true
principle around which other relevant factors must revolve.
When the case is finally disposed of and a person is sentenced
to incarceration, things stand on a different footing. We are
concerned with the penultimate stage and the principal rule to
guide release on bail should be to secure the presence of the
applicant who seeks to be liberated, to take judgment and
serve sentence in the event of the court punishing him with
imprisonment. In this perspective, relevance of considerations
is regulated by their nexus with the likely absence of the
applicant for fear of a severe sentence, if such be plausible in
the case. As Erle, J. indicated, when the crime charged (of
which a conviction has been sustained) is of the highest
magnitude and the punishment of it assigned by law is of
extreme severity, the Court may reasonably presume, some

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evidence warranting, that no amount of bail would secure the
presence of the convict at the stage of judgment, should he be
enlarged. Lord Campbell, C.J. concurred in this approach in
that case and Coleridge, J. set down the order of priorities as
follows:

I do not think that an accused party is
detained in custody because of his guilt, but
because there are sufficient probable
grounds for the charge against him as to
make it proper that he should be tried, and
because the detention is necessary to ensure
his appearance at trial…. It is a very
important element in considering whether
the party, if admitted to bail, would appear to
take his trial; and I think that in coming to a
determination on that point three elements
will generally be found the most important:
the charge, the nature of the evidence by
which it is supported, and the punishment to
which the party would be liable if convicted.

In the present case, the charge is that of wilful murder; the
evidence contains an admission by the prisoners of the truth of
the charge, and the punishment of the offence is, by law, death.

7. It is thus obvious that the nature of the charge is the vital
factor and the nature of the evidence also is pertinent. The
punishment to which the party may be liable, if convicted or
conviction is confirmed, also bears upon the issue.

8. Another relevant factor is as to whether the course of
justice would be thwarted by him who seeks the benignant
jurisdiction of the court to be freed for the time being.

9. Thus the legal principles and practice validate the court
considering the likelihood of the applicant interfering with
witnesses for the prosecution or otherwise polluting the
process of justice. It is not only traditional but rational, in this
context, to enquire into the antecedents of a man who is
applying for bail to find whether he has a bad record–
particularly a record which suggests that he is likely to
commit serious offences while on bail. In regard to habituals,

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it is part of criminological history that a thoughtless bail order
has enabled the bailee to exploit the opportunity to inflict
further crimes on the members of society. Bail discretion, on
the basis of evidence about the criminal record of a defendant,
is therefore not an exercise in irrelevance”. (emphasis
supplied)

29. The Supreme Court then referred to Gurcharan Singh v. State (Delhi
Admn.), [(1978) 1 SCC 118 : 1978 SCC (Cri) 41 : AIR 1978 SC 179],
wherein it took the view:

“22. In other non-bailable cases the court will exercise its
judicial discretion in favour of granting bail subject to sub-
section (3) of Section 437 CrPC if it deems necessary to act
under it. Unless exceptional circumstances are brought to the
notice of the Court which may defeat proper investigation and
a fair trial, the Court will not decline to grant bail to a person
who is not accused of an offence punishable with death or
imprisonment for life. It is also clear that when an accused is
brought before the Court of a Magistrate with the allegation
against him of an offence punishable with death or
imprisonment for life, he has ordinarily no option in the matter
but to refuse bail subject, however, to the first proviso to
Section 437(1) CrPC and in a case where the Magistrate
entertains a reasonable belief on the materials that the accused
has not been guilty of such an offence. This will, however, be an
extraordinary occasion since there will be some materials at
the stage of initial arrest, for the accusation or for strong
suspicion of commission by the person of such an offence.

23. …. ….. ….

24. … …. The overriding considerations in granting bail to
which we adverted to earlier and which are common both in the
case of Section 437(1) and Section 439(1) CrPC of the new
Code are the nature and gravity of the circumstances in which
the offence is committed; the position and the status of the

Crl.Ref.1/2018 Page 18 of 32
accused with reference to the victim and the witnesses; the
likelihood, of the accused fleeing from justice; of repeating
the offence; of jeopardising his own life being faced with a
grim prospect of possible conviction in the case; of tampering
with witnesses; the history of the case as well as of its
investigation and other relevant grounds which, in view of so
many valuable factors, cannot be exhaustively set out.”
(emphasis supplied)

30. The Supreme Court also considered Babu Singh v. State of U.P.
[(1978) 1 SCC 579 : 1978 SCC (Cri) 133]. In Babu Singh (supra), the
Supreme Court, inter alia, opined:

“17. The significance and sweep of Article 21 make the
deprivation of liberty a matter of grave concern and
permissible only when the law authorising it is reasonable,
even-handed and geared to the goals of community good and
State necessity spelt out in Article 19. Indeed, the
considerations I have set out as criteria are germane to the
constitutional proposition I have deduced. Reasonableness
postulates intelligent care and predicates that deprivation of
freedom by refusal of bail is not for punitive purpose but for
the bifocal interests of justice–to the individual involved and
society affected.

18. We must weigh the contrary factors to answer the test of
reasonableness, subject to the need for securing the presence of
the bail applicant. It makes sense to assume that a man on bail
has a better chance to prepare or present his case than one
remanded in custody. And if public justice is to be promoted,
mechanical detention should be demoted. In the United States,
which has a constitutional perspective close to ours, the
function of bail is limited, „community roots‟ of the applicant
are stressed and, after the Vera Foundation’s Manhattan Bail
Project, monetary suretyship is losing ground. The
considerable public expense in keeping in custody where no
danger of disappearance or disturbance can arise, is not a

Crl.Ref.1/2018 Page 19 of 32
negligible consideration. Equally important is the deplorable
condition, verging on the inhuman, of our sub-jails, that the
unrewarding cruelty and expensive custody of avoidable
incarceration makes refusal of bail unreasonable and a policy
favouring release justly sensible”. (emphasis supplied)

31. The Supreme Court also considered Moti Ram v. State of
M.P., [(1978) 4 SCC 47 : 1978 SCC (Cri) 485], wherein it observed in
respect of pretrial detention:

“14. The consequences of pretrial detention are grave.
Defendants presumed innocent are subjected to the
psychological and physical deprivations of jail life, usually
under more onerous conditions than are imposed on convicted
defendants. The jailed defendant loses his job if he has one and
is prevented from contributing to the preparation of his
defence. Equally important, the burden of his detention
frequently falls heavily on the innocent members of his family.”

32. The Supreme Court also referred to Vaman Narain Ghiya v. State of
Rajasthan, [(2009) 2 SCC 281 : (2009) 1 SCC (Cri) 745], wherein the
concept and philosophy of bail was discussed by the said Court as follows:

“6. „Bail‟ remains an undefined term in CrPC. Nowhere else
has the term been statutorily defined. Conceptually, it continues
to be understood as a right for assertion of freedom against the
State imposing restraints. Since the UN Declaration of Human
Rights of 1948, to which India is a signatory, the concept of
bail has found a place within the scope of human rights. The
dictionary meaning of the expression „bail‟ denotes a security
for appearance of a prisoner for his release. Etymologically,
the word is derived from an old French verb „bailer‟ which
means to „give‟ or „to deliver‟, although another view is that its
derivation is from the Latin term „baiulare‟, meaning „to bear a
burden‟. Bail is a conditional liberty. Stroud’s Judicial
Dictionary(4th Edn., 1971) spells out certain other details. It
states:

Crl.Ref.1/2018 Page 20 of 32

„… when a man is taken or arrested for felony,
suspicion of felony, indicted of felony, or any such
case, so that he is restrained of his liberty. And,
being by law bailable, offereth surety to those
which have authority to bail him, which sureties
are bound for him to the King’s use in a certain
sums of money, or body for body, that he shall
appear before the justices of goal delivery at the
next sessions, etc. Then upon the bonds of these
sureties, as is aforesaid, he is bailed–that is to
say, set at liberty until the day appointed for his
appearance.‟
Bail may thus be regarded as a mechanism whereby the State
devolutes upon the community the function of securing the
presence of the prisoners, and at the same time involves
participation of the community in administration of justice.

7. Personal liberty is fundamental and can be
circumscribed only by some process sanctioned by law.
Liberty of a citizen is undoubtedly important but this is to
balance with the security of the community. A balance is
required to be maintained between the personal liberty of the
accused and the investigational right of the police. It must
result in minimum interference with the personal liberty of
the accused and the right of the police to investigate the case.
It has to dovetail two conflicting demands, namely, on the one
hand the requirements of the society for being shielded from
the hazards of being exposed to the misadventures of a person
alleged to have committed a crime; and on the other, the
fundamental canon of criminal jurisprudence viz. the
presumption of innocence of an accused till he is found guilty.
Liberty exists in proportion to wholesome restraint, the more
restraint on others to keep off from us, the more liberty we
have. (See A.K. Gopalan v. State of Madras [AIR 1950 SC 27 :
1950 Cri LJ 1383] .)

8. The law of bail, like any other branch of law, has its own
philosophy, and occupies an important place in the

Crl.Ref.1/2018 Page 21 of 32
administration of justice and the concept of bail emerges from
the conflict between the police power to restrict liberty of a man
who is alleged to have committed a crime, and presumption of
innocence in favour of the alleged criminal. An accused is not
detained in custody with the object of punishing him on the
assumption of his guilt.” (emphasis supplied)

33. Reference was also made to Prahlad Singh Bhati v. NCT,
Delhi [(2001) 4 SCC 280 : 2001 SCC (Cri) 674], wherein the principles,
which the Court must consider while granting or declining bail, have been
culled out by the Supreme Court as follows:

“8. The jurisdiction to grant bail has to be exercised on the
basis of well-settled principles having regard to the
circumstances of each case and not in an arbitrary manner.
While granting the bail, the court has to keep in mind the
nature of accusations, the nature of [the] evidence in support
thereof, the severity of the punishment which conviction will
entail, the character, behaviour, means and standing of the
accused, circumstances which are peculiar to the accused,
reasonable possibility of securing the presence of the accused
at the trial, reasonable apprehension of the witnesses being
tampered with, the larger interests of the public or State and
similar other considerations. It has also to be kept in mind that
for the purposes of granting the bail the legislature has used the
words „reasonable grounds for believing‟ instead of „the
evidence‟ which means the court dealing with the grant of bail
can only satisfy it (sic itself) as to whether there is a genuine
case against the accused and that the prosecution will be able
to produce prima facie evidence in support of the charge. It is
not expected, at this stage, to have the evidence establishing the
guilt of the accused beyond reasonable doubt.” (emphasis
supplied)

Crl.Ref.1/2018 Page 22 of 32

34. The Supreme Court also noticed its earlier judgment in State of
U.P. v. Amarmani Tripathi, [(2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2)],
wherein it held:

“18. It is well settled that the matters to be considered in an
application for bail are (i) whether there is any prima facie or
reasonable ground to believe that the accused had committed
the offence; (ii) nature and gravity of the charge; (iii) severity
of the punishment in the event of conviction; (iv) danger of
the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the
accused; (vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being tampered
with; and (viii) danger, of course, of justice being thwarted by
grant of bail [see Prahlad Singh Bhativ. NCT, Delhi [(2001) 4
SCC 280 : 2001 SCC (Cri) 674] and Gurcharan Singh v. State
(Delhi Admn.) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41 : AIR
1978 SC 179] ]. While a vague allegation that the accused may
tamper with the evidence or witnesses may not be a ground to
refuse bail, if the accused is of such character that his mere
presence at large would intimidate the witnesses or if there is
material to show that he will use his liberty to subvert justice or
tamper with the evidence, then bail will be refused. We may
also refer to the following principles relating to grant or refusal
of bail stated in Kalyan Chandra Sarkar v. Rajesh
Ranjan[(2004) 7 SCC 528 : 2004 SCC (Cri) 1977] : (SCC pp.
535-36, para 11)
„11. The law in regard to grant or refusal of bail
is very well settled. The court granting bail should
exercise its discretion in a judicious manner and
not as a matter of course. Though at the stage of
granting bail a detailed examination of evidence
and elaborate documentation of the merit of the
case need not be undertaken, there is a need to
indicate in such orders reasons for prima facie
concluding why bail was being granted
particularly where the accused is charged of
having committed a serious offence. Any order

Crl.Ref.1/2018 Page 23 of 32
devoid of such reasons would suffer from non-
application of mind. It is also necessary for the
court granting bail to consider among other
circumstances, the following factors also before
granting bail; they are:

(a) The nature of accusation and the severity of
punishment in case of conviction and the nature
of supporting evidence.

(b) Reasonable apprehension of tampering with
the witness or apprehension of threat to the
complainant.

(c) Prima facie satisfaction of the court in
support of the charge. (See Ram Govind
Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598:

2002 SCC (Cri) 688]
and Puran v. Rambilas [(2001) 6 SCC 338 : 2001
SCC (Cri) 1124] .)‟
***

22. While a detailed examination of the evidence is to be
avoided while considering the question of bail, to ensure that
there is no prejudging and no prejudice, a brief examination to
be satisfied about the existence or otherwise of a prima facie
case is necessary.” (emphasis supplied)

35. What emerges from the aforesaid observations of the Supreme Court,
and on a reading of Section 437 Cr PC is the following:

(i) The power of the Court to grant or refuse bail is a discretionary power
and the exercise of the said discretion is circumscribed by germane
and relevant considerations. The discretion has to be exercised with
care and caution by balancing the valuable right of the individual, and
the interest of the society in general.

(ii) The basic rule in respect of an accused in a cognizable, non-bailable
offence, and an under-trial is to grant him bail. The option to commit

Crl.Ref.1/2018 Page 24 of 32
him to jail is the exception. This is because refusal of bail is a
restriction on the personal liberty of the individual, which is
guaranteed under Article 21 of the Constitution and, therefore, the
personal liberty of the accused/under trial should not be curbed
lightly.

(iii) Pre-conviction incarceration of the accused/ under trial is a preventive
measure, and not a punitive one. Denial of bail in an otherwise
deserving case to the accused/ under trial cannot be actuated with the
desire to punish the accused/ under trial.

(iv) The option of denying bail, and subjecting the accused/ under trial to
incarceration would be resorted to by the Court where there are
apprehensions that the accused/ under trial may: flee from justice;
thwart the course of justice; appear to be likely to commit other
offences while on bail, or; likely to intimidate witnesses or destroy
evidence. These considerations are illustrative and not exhaustive;

(v) The gravity or heinousness of the offence involved, and the severity
of the punishment that the accused may be subjected to is a relevant
consideration, as it is likely to induce the accused to avoid the course
of justice where the offence is grave and the punishment therefor is
severe, and must weigh with the Court when considering the question
of bail, or jail;

(vi) The conduct of the accused/ under trial – particularly, post the
involvement in the case, is also a relevant consideration. Thus, if the
accused/ under trial has not abused the trust placed by the Court in

Crl.Ref.1/2018 Page 25 of 32
him, that would be a factor in his favour while considering his
application for grant of bail.

(vii) The other circumstance, namely his roots and family background; his
age; his antecedents, and; his status in the society are other
considerations which would be taken into account at the time of
consideration of grant, or refusal, of bail to the accused/ under trial.

(viii) The court can curb (though not completely eliminate) the possibility
of the accused fleeing from justice, by subjecting him to conditions
such as requiring him to furnish his personal bond; surety bonds;
surrendering his passport; reporting at the police station on regular
intervals to mark his attendance etc.

(ix) In a case where the accused is alleged to have committed an offence
punishable with death or imprisonment for life, or in a case where the
accused appears to be a repeat offender whose case is covered by
clause (ii) of sub section (1) of section 437, ordinarily his bail may be
refused. However, in cases falling under one or more of the first two
provisos to Section 437 (1) Cr.P.C., the bail may be granted upon
consideration of the relevant circumstances taken note of herein.

(x) The considerations in granting bail are common – both to cases falling
under Section 437 (1) Cr P.C, and cases falling under Section 439 (1)
Cr.P.C, namely: the nature and gravity of the circumstances in which
the offence is committed; the position and the status of the accused
with reference to the victim and the witnesses; the likelihood of the
accused fleeing from justice; the likelihood of the accused repeating
the offence; the likelihood of the accused jeopardizing his own life –

Crl.Ref.1/2018 Page 26 of 32

being faced with a grim prospect of possible conviction in the case;
the likelihood of the accused tampering with evidence or influencing
witnesses; the history of the case as well as of its investigation, and
other relevant grounds which cannot be exhaustively set out.

36. In the light of the aforesaid discussion, we proceed to answer the first
question of law referred for our consideration, i.e.:

A) Whether, in the given facts, this court needs to refer to the order of
Hon’ble Delhi High Court rejecting the anticipatory bail application,
while considering regular bail application of the accused?

While considering the regular bail application of the accused under
Section 437(1) Cr PC, the factum of the rejection or acceptance of the
anticipatory bail application, by itself, is not germane. However, the factors
which weighed with the court while either rejecting or granting anticipatory
bail to the accused, or such of them – as are relevant post the filing of the
charge sheet, may be looked at by the Court while dealing with the bail
application of the accused under Section 437(1) Cr PC. Since the court is
seized of the final report/ charge sheet while dealing with the bail
application under Section 437 (1) Cr PC, it would be in a position to make a
better assessment and it should not get influenced by the conclusions drawn
by the court while – either accepting, or rejecting the anticipatory bail of the
accused. We have already discussed the limitations on the power of the
court (which is not the Court of Sessions or the High Court) to grant bail
placed by clause (i) and (ii) of section 437(1) and the aspects that the court
would take into consideration while considering the regular bail application

Crl.Ref.1/2018 Page 27 of 32
of the accused under Section 437(1) Cr PC. Question (A) is answered
accordingly.

37. Now, we may proceed to answer question (B), i.e.:

B) Whether this court needs to delve upon the reasons of non- arrest
given by investigating agency after rejection of anticipatory bail of
the accused by the Hon’ble High Court?

The aforesaid question of law has already been answered by this court
in Court on its Own Motion (2) (supra). When the charge sheet is filed
before the Court/ Magistrate without arresting the accused, despite the
rejection of his anticipatory bail application by the High Court, it is not open
to the court to examine whether the exercise of discretion by the
Investigating Officer (IO) – not to arrest the accused despite rejection of his
anticipatory bail application by this Court, has been properly exercised. The
Magistrate/ Court is only concerned with the final report/ charge sheet, as
filed. This Court in Court on its Own Motion (2) (supra) has observed as
follows:

“8. The view taken by the learned Magistrate that in
offences, whereof the sentence is beyond seven years, the
investigating agency should necessarily arrest the accused
and produce the accused in custody at the time of filing the
charge-sheet under Section 173, Cr.P.C. before the
Magistrate, has no basis and is contrary to the statutory
scheme. In this regard, reference may be made to Sections 2(c),
41, 41(1)(b), 41(1)(b)(a), 157(1), 173(2)(e), 173(2)(f)
173(2)(g) of the Code, which put the matter beyond any doubt
that the investigating agency is not obliged to arrest the
accused whenever a cognizable offence is registered. The
discretion to arrest the accused has to be exercised by the

Crl.Ref.1/2018 Page 28 of 32
investigating agency by applying the principles laid down in
the Code itself.

9. The aforesaid position has been reiterated by this Court
in Udit Raj Poonia v. State (Govt. of NCT of Delhi),
MANU/DE/0371/2017 : 238 (2017) DLT 212; as also in Rajesh
Dua v. State, Bail Application No. 778/2017 decided on
9.8.2017. Thus, the Metropolitan Magistrate cannot examine
whether the discretion of the IO to arrest, or not to arrest the
accused, has been properly exercised. He is only concerned
with the chargesheet, as filed. He may return the charge-sheet
if he finds that the investigation is not complete, or the charge
is not borne out from the evidence collected and filed with the
charge-sheet. But he cannot return the same merely because
the accused has not been arrested and produced in custody at
the time of filing the charge-sheet. The reference stands
answered, accordingly.”

Question (B) stands answered accordingly.

38. Question (C) referred by the learned CMM is as under:

C) Whether the effect of anticipatory bail application, be it allowed or
rejected, stands ceased with the filing of charge-sheet so as to
consider the regular bail application without looking into the
anticipatory bail application filed during investigation?

This question of law was considered by the Constitution Bench of the
Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC

565. In Siddharam Satlingappa Mhetre v. State of Maharshtra, (2011) 1
SCC 694, a two judge bench of the Supreme Court took the view that the
Constitution Bench in its judgment rendered in Gurbaksh Singh Sibbia
(supra) has held that anticipatory bail granted by the Court should ordinarily
continue till the trial of the case. The decision in Siddharam Satlingappa

Crl.Ref.1/2018 Page 29 of 32
Mhetre (supra) was followed in Bhadresh Bipinbhai Sheth v. State of
Gujarat, (2016) 1 SCC 152. However, there is another line of judgments,
which advance the view that the orders of anticipatory bail should be of a
limited duration. It has been so held in Salauddin Abdulsamad Shaikh v.
State of Maharashtra, (1996) 1 SCC 667. The view taken in Salauddin
Abdulsamad Shaikh (supra) has been followed in several subsequent
judgments such as K.L. Verma v. State, (1998) 9 SCC 348; Sunita Devi v.
State of Bihar, (2005) 1 SCC 608, and; Adri Dharan Das v. State of West
Bengal, (2005) 4 SCC 303. The correctness of K.L. Verma (supra) was,
however, doubted in Nirmal Jeet Kaur v. State, (2004) 7 SCC 558. HDFC
Bank Ltd. v. J.J. Mannan, (2010) 1 SCC 679 is yet another decision,
wherein the view taken by the Supreme Court is that the protection under
Section 438 Cr PC is only till the investigation is complete and charge sheet
is filed. The same view has been adopted in Satpal v. State of Punjab,
(2018) 3 SCC 813.

The aforesaid conflicting positions were noticed by the Supreme
Court, recently, in Sushila Aggarwal v. State (NCT of Delhi) Anr.,
(2018) 7 SCC 731. The Supreme Court observed that on a reading of
Gurbaksh Singh Sibbia (supra), it appears that there are indications that
anticipatory bail may be for a limited period. In the light of the conflicting
views of different bench of the Supreme Court of equal strength, the
Supreme Court in Sushila Aggarwal (supra) has referred the following
questions for consideration by a larger bench of the Supreme Court, so that
they are authoritatively settled in clear and unambiguous terms:

Crl.Ref.1/2018 Page 30 of 32

“(1) Whether the protection granted to a person Under Section
438 Code of Criminal Procedure should be limited to a fixed
period so as to enable the person to surrender before the Trial
Court and seek regular bail.

(2) Whether the life of an anticipatory bail should end at the
time and stage when the Accused is summoned by the Court”.

In the light of the aforesaid position, since the issue is still pending
consideration before the larger bench of the Supreme Court, we do not
consider it appropriate to delve into this question of law referred for our
consideration.

39. Question (D) referred for our consideration is the following:

D) Whether while deciding the bail application of the accused charge-

sheeted without arrest, the court can delve into the reasons of non-
arrest of the accused, considering the gravity of offence?

The aforesaid question is a mere paraphrasing of Question (B) and,
therefore, does not require us to give a separate answer to it. The answer to
this question is covered by our decision in Court on its Own Motion (2)
(supra).

40. The last question of law referred for our consideration is the
following:

E) Whether this court can release the accused on bail charge sheeted
without arrest under section 376 IPC or any other offence punishable
with imprisonment of life or death in view of bar under section
437(1)(i)[sic 437(i)] Cr. P.C.

Crl.Ref.1/2018 Page 31 of 32

In the light of our discussion, as aforesaid, the accused, who is charge
sheeted without arrest under Section 376 IPC or any other offence
punishable with imprisonment for life or death, may be released on bail
under Section 437(1) Cr PC, provided:

i) There are no reasonable grounds for the Court to believe that
the accused has been guilty of the offence punishable with death or
imprisonment for life, or;

ii) the accused is under the age of 16 years or a woman or a sick
or infirm.

The existence of the aforesaid circumstances merely enables the
Court to consider the application for grant of bail under Section 437(1) Cr
PC. However, the considerations which go into the making of the decision
whether to grant bail or not, are those that we have exhaustively considered
and set out herein above. Thus, it would depend on the circumstances of the
individual case, whether or not the accused should be released on bail by the
Court under Section 437(1) Cr PC. The reference stands answered in the
aforesaid terms.

(VIPIN SANGHI)
JUDGE

(I.S. MEHTA)
JUDGE
NOVEMBER 13, 2018

Crl.Ref.1/2018 Page 32 of 32

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