Accused Entitled To Bail If Arrest Was In Breach Of Sections 41, 41A CrPC : Supreme Court

The Supreme Court observed that any non-compliance of Section 41 and 41A of Criminal Procedure Code at the time of arrest would entitle the accused for grant of bail.

The bench comprising Justices Sanjay Kishan Kaul and MM Sundresh observed that Section 41 and 41A are facets of Article 21 of the Constitution of India.

"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 in Arnesh Kumar judgment..Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action", the bench said.

The court also directed the State Governments and the Union Territories to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code.

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 a cognizable offence, and arrest is not required under Section 41(1).

In Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, the court 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.

"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 are to be recorded by the police officer", the Supreme Court stated in the present judgment..

Come down heavily on officers violating Sections 41, 41A.

"We also expect the courts to come down heavily on the officers 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 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 Code which warrants the officer concerned to make the arrest strictly in accordance with the Code.", the bench observed.

The court noted that Delhi Police viz., Standing Order No. 109 of 2020, provides for a set of guidelines in the form of procedure for issuance of notices or orders by the police officers. 

"Thus, we deem it appropriate to direct all the State 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"

The Court also issued a slew of other directions as follows :

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.

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 (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court

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 followed under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2018 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 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(in which it was held that investigating officer need not arrest each and every accused at the time of filing chargesheet).

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 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 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 district judiciary level and the High Court as earlier directed by this Court in Bhim Singh (supra), 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 anintervening application. Applications for 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. 

Case details

Satender Kumar Antil vs Central Bureau Of Investigation | 2022 LiveLaw (SC) 577 | MA 1849 OF 2021 | 11 July 2022

Coram: Justices Sanjay Kishan Kaul and MM Sundresh

Headnotes

Code of Criminal Procedure, 1973 ; Sections 41, 41A - 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 - 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 in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 - Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action - State Governments and the Union Territories to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code. (Para 73 (b-d))

Code of Criminal Procedure, 1973 ; Sections 437-439 - Bail - 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 anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application. (Para 73 (k))

Code of Criminal Procedure, 1973 ; Sections 88, 170, 204 and 209 - There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code. (Para 73 (e))

Bail - 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. (Para 72-73(a))

Constitution of Special Courts - 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 to be filled up expeditiously. (Para 73 (g))

Code of Criminal Procedure, 1973 ; Sections 440, 436A - Undertrials - 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 the release- While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind - 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 district judiciary level and the High Court. (Para 73 (h-j))

Code of Criminal Procedure, 1973 ; Section 436A - Section 436A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigor as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. (Para 64)

Bail - Economic Offences - The gravity of the offence, the object 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 - It is not advisable on the part of the court to categorise all the offences into one group and deny bail on that basis. (Para 66)

Code of Criminal Procedure, 1973 ; Section 437 - Scope - The jurisdictional Magistrate who otherwise has the jurisdiction to try a criminal case which provides for a maximum punishment of either life or death sentence, has got ample jurisdiction to consider the release on bail. (Para 53-55, 58)

Code of Criminal Procedure, 1973 ; Section 440 - It is a mandatory duty of the court to take into consideration the circumstances of the case and satisfy itself that it is not excessive. Imposing a condition which is impossible of compliance would be defeating the very object of the release. In this connection, we would only say that Section 436, 437, 438 and 439 of the Code are to be read in consonance. Reasonableness of the bond and surety is something which the court has to keep in mind whenever the same is insisted upon, and therefore while exercising the power under Section 88 of the Code also the said factum has to be kept in mind.

Code of Criminal Procedure, 1973 ; Section 437, 439 - The first proviso to Section 437 facilitates a court to conditionally release on bail an accused if he is under the age of 16 years or is a woman or is sick or infirm - This has to be applied while considering release on bail either by the Court of Sessions or the High Court, as the case may be. (Para 58)

Code of Criminal Procedure, 1973 ; Section 41(1)(b)(i) and (ii) - Notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present - Both the elements of 'reason to believe' and 'satisfaction qua an arrest' are mandated and accordingly are to be recorded by the police officer - Referred to (Para 27)

Code of Criminal Procedure, 1973 ; Section 41 - Scope - Even for a cognizable offense, an arrest is not mandatory as can be seen from the mandate of this provision. (Para 21 -23)

Code of Criminal Procedure, 1973 ; Section 87-88 - Courts will have to adopt the procedure in issuing summons first, thereafter a bailable warrant, and then a non-bailable warrant may be issued- Issuing non-bailable warrants as a matter of course without due application of mind against the tenor of the provision - Referred to Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1. (Para 31-32)

Code of Criminal Procedure, 1973 ; Section 167(2) - Limb of Article 21 - 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 benefit of suspect. Such a right cannot be taken away even during any unforeseen circumstances. (Para 34)

Code of Criminal Procedure, 1973 ; Section 170 - Scope and ambit - Referred to Siddharth v. State of U.P., (2021) 1 SCC 676. (Para 36)

Code of Criminal Procedure, 1973 ; Section 204 - Issuing a warrant may be an exception in which case the Magistrate will have to give reasons. (Para 37)

Code of Criminal Procedure, 1973 ; Section 209 - Power of 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. (Para 38)

Words and Phrases - Trial - An 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 substantially is the proceedings before the Court in the form of a trial. If we keep the above distinction in mind, the consequence to be drawn is for a more favourable consideration towards enlargement when investigation is completed, of course, among other factors - 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. (Para 7)

Words and Phrases - Bail - 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. 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 - Bail is the rule and jail is the exception. (Para 8-12)

Criminal Trial - Presumption of innocence- Onus on the prosecution to prove the guilt before the Court -The agency to satisfy the Court that the arrest made was warranted and enlargement on bail is to be denied - Presumption of innocence, being a facet of Article 21, shall inure to the benefit of the accused. (Para 13-18)

Constitution of India, 1950 ; Article 21 - Whatever may be the nature of the offence, a prolonged trial, appeal or a revision against an accused or a convict under custody or incarceration, would be violative of Article 21 - Right to a fair and speedy trial is a facet of Article 21 (Para 40 -41)

Code of Criminal Procedure, 1973 ; Section 309 - Bail - While it is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. (Para 41)

Code of Criminal Procedure, 1973 ; Section 389 - "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 - The power exercisable under Section 389 is different from that of the one either under Section 437 or under Section 439 of the Code, pending trial- Delay in taking up the main appeal or revision coupled with the benefit conferred under Section 436A of the Code among other factors ought to be considered for a favourable release on bail. (Para 42-44)

Code of Criminal Procedure, 1973 ; Section 436A - The word 'trial' will have to be given an expanded meaning particularly when an appeal or admission is pending - In a case where an appeal is pending for a longer time, to bring it under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision.(Para 46)

Code of Criminal Procedure, 1973 ; Section 436A - The word 'shall' clearly denotes the mandatory compliance of this provision - There is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the accused - While taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half  of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. (Para 47)

Interpretation of Statutes - While dealing with a welfare legislation, a purposive interpretation giving the benefit to the needy person being the intendment is the role required to be played by the court. ( Para 57)

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