High Courts Can Grant Protection To Accused While Dismissing Anticipatory Bail Plea In Exceptional Circumstances: Supreme Court

The Supreme Court observed that a High Court, while dismissing anticipatory bail applications, can issue protective orders only when there are exceptional circumstances.

The bench headed by CJI Ramana also observed that such orders should explain the reasons for issuing such protection.

"Even when the Court is not inclined to grant anticipatory bail to an accused, there may be circumstances where the High Court is of the opinion that it is necessary to protect the person apprehending arrest for some time, due to exceptional circumstances, until they surrender before the Trial Court. For example, the applicant may plead protection for some time as he/she is the primary caregiver or breadwinner of his/her family members, and needs to make arrangements for them. In such extraordinary circumstances, when a strict case for grant of anticipatory bail is not made out, and rather the investigating authority has made out a case for custodial investigation, it cannot be stated that the High Court has no power to ensure justice. It needs no mentioning, but this Court may also exercise its powers under Article 142 of the Constitution to pass such an order.", the bench also comprising Justices Surya Kant and Aniruddha Bose observed.

In this case, after rejecting the application seeking anticipatory bail, the High Court directed the accused to surrender before the Trial Court to file a regular bail application within 90 days, by protecting them from any coercive action during that period. The complainants assailed this order before the Apex Court contending that that Section 438, Cr.P.C. does not contemplate the grant of any such protection on the dismissal of the application filed by an accused and rather, the proviso to Section 438(1), Cr.P.C. specifically provides for the arrest of the accused on a rejection of the relief sought in their application.

To answer this contention, the bench referred to Section 438 CrPC.

"18. The focus of Section 438, Cr.P.C., when read in its entirety, clearly relates to the grant of anticipatory bail by the Court. Section 438(1) explicitly lays down certain factors that need to be considered by the Court before granting the relief sought. Section 438(2) lays down the conditions that may be 10 imposed by the Court while granting the relief. Section 438(3) dictates the consequences of the grant of relief under the Section.
19. The only guidance relating to what is to take place once an application under Section 438, Cr.P.C. is rejected is found in the proviso to Section 438(1), Cr.P.C., which specifically provides that once an application is rejected, or the Court seized with the matter refuses to issue an interim order, it is open to the police to arrest the applicant..", the court said.

The court said that any interpretation of the provisions of Section 438, Cr.P.C. has to take into consideration the fact that the grant or rejection of an application under Section 438, Cr.P.C. has a direct bearing on the fundamental right to life and liberty of an individual. The court observed as follows:

"20... The genesis of this jurisdiction lies in Article 21 of the Constitution, as an effective medium to protect the life and liberty of an individual. The provision therefore needs to be read liberally, and considering its beneficial nature, the Courts must not read in limitations or restrictions that the legislature have not explicitly provided for. Any ambiguity in the language must be resolved in favour of the applicant seeking relief." 

21. When the proviso to Section 438(1), Cr.P.C. is analyzed in line with the above dictum, it is clear that the proviso does not create any rights or restrictions. Rather, the sole purpose of the proviso appears to be clarificatory in nature. It only restates, inter alia, the obvious proposition that unless an individual has obtained some protection from the Court, the police may arrest them. In line with the ruling in Gurbaksh Singh Sibbia (supra), the proviso cannot be read as constituting a bar on the power of the Court."

The court then observed that Section 482, Cr.P.C explicitly recognizes the High Court's inherent power to issue relief to an applicant after dismissing their anticipatory bail application. The bench made the following observations:

23. Without going into the question of whether Section 438, Cr.P.C. itself allows for such a power, as it is not necessary to undertake such an exercise in the present case, it is clear that when it comes to the High Court, such a power does exist. Section 482, Cr.P.C explicitly recognizes the High Court's inherent power to pass orders to secure the ends of justice. This provision reflects the reality that no law or rule can possibly account for the complexities of life, and the infinite range of circumstances that may arise in the future.

24. We cannot be oblivious to the circumstances that Courts are faced with day in and day out, while dealing with anticipatory bail applications. Even when the Court is not inclined to grant anticipatory bail to an accused, there may be circumstances where the High Court is of the opinion that it is necessary to protect the person apprehending arrest for some time, due to exceptional circumstances, until they surrender before the Trial Court. For example, the applicant may plead protection for some time as he/she is the primary caregiver or breadwinner of his/her family members, and needs to make arrangements for them. In such extraordinary circumstances, when a strict case for grant of anticipatory bail is not made out, and rather the investigating authority has made out a case for custodial investigation, it cannot be stated that the High Court has no power to ensure justice. It needs no mentioning, but this Court may also exercise its powers under Article 142 of the Constitution to pass such an order.

25. However, such discretionary power cannot be exercised in an untrammeled manner. The Court must take into account the statutory scheme under Section 438, Cr.P.C., particularly, the proviso to Section 438(1), Cr.P.C., and balance the concerns of the investigating agency, complainant and the society at large with the concerns/interest of the applicant. Therefore, such an order must necessarily be narrowly tailored to protect the interests of the applicant while taking into consideration the concerns of the investigating authority. Such an order must be a reasoned one.

The court, taking note of the contents of the High Court order noted the following. First, after the dismissal of the anticipatory bail application, on the basis of the nature and gravity of the offence, the High Court has granted the impugned relief to the respondents without assigning any reasons. Secondly, in granting the relief for a period of 90 days, the Court has seemingly not considered the concerns of the investigating agency, complainant or the proviso under Section 438(1), Cr.P.C., which necessitates that the Court pass such an exceptional discretionary protection order for the shortest duration that is reasonably required. A period of 90 days, or three months, cannot in any way be considered to be a reasonable one in the present facts and circumstances. Therefore, the bench set aside the protective relief granted by the High Court to the accused.

Case: Nathu Singh  vs. State of Uttar Pradesh  [CRA 522 OF 2021]
Coram: CJI NV Ramana, Justices Surya Kant and Aniruddha Bose
Citation: LL 2021 SC 261

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