Anticipatory Bail Pleas Maintainable For Category ‘A’ Offences Outlined By SC In ‘Satender Antil’ Case: Uttarakhand HC Holds By 2:1 Majority

Recently, a full bench of the Uttarakhand High Court by a 2:1 majority held that anticipatory bail applications are maintainable even after filing of charge sheet.

Chief Justice Vipin Sanghi and Justice Manoj Kumar Tiwari constituted the majority while Justice Ravindra Maithani rendered a dissenting opinion.

The Bench was deciding the issue of admissibility of anticipatory bail pleas after the filing of charge-sheet, being referred to it by a Single Judge Bench. The Single Judge had also referred another ancillary issue for an authoritative pronouncement by the Full Bench.

The Supreme Court, while taking note of the frequent filing of bail pleas after the submission of final report on a wrong interpretation of Section 170 of the CrPC, had categorized the penal offences into four categories, i.e. A, B, C & D in its landmark judgment in Satender Kumar Antil v. CBI.

Category ‘A’ dealt with offences punishable with imprisonment of 7 years or less not falling in category ‘B’ and ‘D’. Category ‘B’ had under its domain offences which are punishable with death, imprisonment for life, or imprisonment for more than 7 years. Category ‘C’, similarly, provided for offences punishable under Special Acts containing stringent provisions for bail. Lastly, category ‘D’ dealt with economic offences not covered by the Special Acts.

Therefore, category ‘A’ included the offences, except the economic offences, for which imprisonment for seven years has been prescribed. The Apex Court, in that case, had directed that bail applications of accused persons under category ‘A’ offences may be decided on their appearance without the accused being taken into physical custody or by granting interim bail till the bail application is decided.

Upon perusing such directions of the Supreme Court, the Single Judge of the High Court had expressed doubt as to whether anticipatory bail applications filed by the accused of category ‘A’ offences can be entertained as it was directed that their bail pleas can be decided without taking them into ‘physical custody’. Thus, it had referred the following question to the Full Bench:

“In view of the judgment in the case of Satender Kumar Antil (supra), after charge sheet is filed and cognizance is taken for offences under category ‘A’, bail application of such accused, on appearance, may be decided without the accused being taken into physical custody. It means, in such matters, the accused has no apprehension of his being taken into custody. Does it mean that for this category of cases, Section 438 of the Code is not applicable at all?”

Majority View

The majority judgment authored by Justice Tiwari (concurred to by Chief Justice Sanghi) held that it is nowhere mentioned in the aforesaid judgment of the Supreme Court that anticipatory bail applications shall not be entertained for offences falling under category ‘A’.

“Hon’ble Supreme Court in the case of Satender Kumar Antil v. Central Bureau of Investigation, reported as (2021) 10 SCC 773, has nowhere held that provision for anticipatory bail made in Section 438 CrPC would not be applicable to persons against whom charge sheet is filed and cognizance is taken for offences under category ‘A’, although necessary guidelines were issued to protect the personal liberty of such persons,” it was clarified.

The Dissenting View

Justice Maithani, however, did not agree to the aforesaid proposition of the majority. He was of the opinion that in Satender Antil, it was held that in category ‘A’ cases, when an accused is not arrested during investigation and if he appears before the Court, he is not to be taken into custody. It means, he held, an accused falling in category ‘A’ cases does not apprehend his arrest.

“The provisions of Section 438 of the Code come into play when a person apprehends his arrest in non-bailable cases. It means that for category-A cases, as classified in the case of Satender Kumar Antil (supra), an application for anticipatory bail may not at all be entertained because as stated, such a person is not to be taken into custody. He cannot be said to be carrying any apprehension of arrest,” he added.

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

Click Here To Read/Download Judgment