Anticipatory Bail Plea Not Maintainable After Submission Of Chargesheet: Justice Ravindra Maithani Dissents From Majority View

The majority of a Full Bench comprising Chief Justice Vipin Sanghi and Justice Manoj Kumar Tiwari of the Uttarakhand High Court has held that anticipatory bail application can be entertained even after filing of charge-sheet as there is no time limit prescribed under the Code of Criminal Procedure restricting the stage until which such bail can be granted.

Justice Ravindra Maithani, however, rendered a dissenting opinion and held the contrary to be the correct position of law and accordingly observed,

"There are various provisions of bail in the Code. Sections 437 and 439 of the Code are general and broad principles. Section 438 of the Code comes into play only when there is apprehension of arrest in a non-bailable offence. Now, if the word “arrest” as occurs in Section 438 of the Code is taken to cover all situations of arrest or all situations under which an accused may be taken into custody by a court, it may make various other provisions of the Code redundant."

Background

A Single Bench of the Court had referred to the larger Bench the question as to whether anticipatory bail application of a person can be entertained after filing of the charge-sheet. A Division Bench of the Court answered the said reference in affirmative by a judgment dated 07.09.2022.

After perusing the Division Bench judgment, the Single Judge was of the view that the issues raised by him in the reference order were not appropriately considered by the Division Bench while answering the reference. Thus, he referred the matter again to a larger Bench, pursuant to which the Full Bench was constituted by the Chief Justice.

Origin Of The Issue In Question

This aforesaid doubt cropped up in the mind of the Single Judge after perusing a particular part of the Constitution Bench judgment of the Supreme Court in Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr. Para 7.1 of the said judgment, inter alia, held as follows:

“As held by this Court, the expression “anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently granted by the court in anticipation of arrest. An application for “anticipatory bail” in anticipation of arrest could be moved by the accused at a stage before an FIR is filed or at a stage when FIR is registered but the charge-sheet has not been filed and the investigation is in progress or at a stage after the investigation is concluded.”

The Single Bench found it difficult to resolve the issue as the Division Bench of the Court held that anticipatory bail application is maintainable even after the filing of the charge-sheet but the Single Judge was of the view that the Supreme Court in Sushila Aggarwal (supra) held the opposite in the aforementioned para.

If Conclusion Of Investigation Implies Submission Of Charge-sheet?

Justice Maithani was of the view that though in Para 7.1 of the judgment in Sushila Aggarwal (supra), the Supreme Court has held that anticipatory bail application could be moved at a stage after the investigation is concluded, but the Court had also observed that such an application could be moved until the stage when the charge-sheet has not been filed.

He was of the considered opinion that ‘completion of investigation’ does not per se mean ‘submission of charge-sheet’ and observed,

“Once chargesheet is filed, the police may not proceed against the person charge-sheeted, although, further investigation may be done under Section 173(8) of the Code. Investigation is done by the Investigating Officer. After conclusion of the investigation, the Investigating Officer, on his own, does not go to the court to submit the chargesheet. There are some more stages after completion of investigation and filing of the chargesheet.”

Therefore, he expressed the opinion that as per the law laid down by the Apex Court, a person can very well move for an anticipatory bail even after conclusion of investigation, but not after submission of charge-sheet. The thrust of his judgment was that there is a gap between ‘conclusion of investigation’ and ‘submission of charge-sheet’ and both cannot be held to be the same.

Meaning Of ‘Arrest’ U/S 438 CrPC

Justice Maithani was of the view that after filing of the chargesheet/complaint, the Court examines the matter and while taking cognizance, issues process. An accused appears before the Court in response to such process. All of these are done according to the “procedure established by law”.

“At this stage, it cannot be said that such person has been falsely implicated for sending him behind bars by some influential persons. Taking such person into custody is not “arrest”, as used under Section 438 of the Code. The meaning of “arrest” cannot be construed to bring such accused within the provisions of Section 438 of the Code,” he added.

Therefore, he held that the term ‘arrest’, as finds place under Section 438 of the Code, does not relate to the situation when after filing of the charge-sheet, an accused appears before the Court in response to the process issued by the Court.

“The word “arrest”, as used under Section 438 of the Code is not attracted to the cases when an accused appears and surrenders before the court after filing of the chargesheet. It means that post filing of a chargesheet, if an accused is summoned or required to appear before the court by any process of the Code, in such a situation, the provisions of Section 438 of the Code shall not be applicable,” he further held.

Anticipatory Bail Can’t Substitute Regular Bail

In his dissenting opinion, Justice Maithani held that the anticipatory bail, as such, is not a total substitute of regular bail. He further ruled that the provision of the statute should not be read in a manner so as to make some other provision of the statute redundant. There should be harmonious construction of the different provisions of the enactment.

“Section 438 of the Code comes into play only when there is apprehension of arrest in a non-bailable offence. Now, if the word “arrest” as occurs in Section 438 of the Code is taken to cover all situations of arrest or all situations under which an accused may be taken into custody by a court, it may make various other provisions of the Code redundant and may be a kind of violence to the provisions of Section 438 of the Code,” Justice Maithani observed.

Accordingly, he concluded that no plea for anticipatory bail can be entertained after the filing of charge-sheet and said,

“In view of the foregoing discussion, I am of the view that an application for anticipatory bail is not maintainable after the chargesheet has been filed in the court.”

Case Title: Saubhagya Bhagat v. State of Uttarakhand & Anr. [and other connected matters]

Case No: ABA No. 76 of 2021

Date of Judgment: August 24, 2023

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