S.438 CrPC | Anticipatory Bail Plea Maintainable Even After Filing Of Chargesheet: Uttarakhand High Court Holds By 2:1 Majority

The Uttarakhand High Court has, by a 2:1 majority, held that application for ‘anticipatory bail’ under Section 438 CrPC can be entertained even after submission of charge-sheet.

In their concurring opinions, Chief Justice Vipin Sanghi and Justice Manoj Kumar Tiwari held that the legislature has not imposed any restriction as regards the stage upto which an application for anticipatory bail can be entertained.

"…application for anticipatory bail cannot be held to be not maintainable merely because charge sheet is filed against the accused person. This would amount to doing violence with the language of Section 438, a provision meant to protect the personal liberty of people, which has to be construed in a manner which subserves its purpose and it would not be proper for this Court to read some restriction/condition in the said provision which was not put by the legislature...An interpretation of Section 438 Cr.P.C. which curtails the remedy available to an accused – to preserve his right to life and personal liberty, should be eschewed," they held.

Justice Ravindra Maithani rendered a dissenting opinion. He opined,

"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 Judge 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.

Contentions Of Parties

The applicants contended that as the legislature has not imposed any restriction regarding the stage at which an application for anticipatory bail could be entertained, therefore, reading some restrictions or conditions regarding the stage up to which such application can be filed, would not be warranted and would be against the dictum of the Constitution Bench judgments in the case of Gurbaksh Singh Sibbia v. State of Punjab and Sushila Aggarwal (supra).

It was further argued that the Constitution Bench judgment in the case of Sushila Aggarwal (supra) nowhere provides that an application for anticipatory bail would be maintainable only till filing of charge-sheet and not thereafter.

However, it was submitted on behalf of the State that upon completion of investigation, when charge-sheet is filed, the remedy of anticipatory bail would not be available to an accused person and he can then seek bail under Section 437 CrPC.

The Majority Opinion

The majority opinion authored by Justice Tiwari states that a careful perusal of Section 438 of the CrPC reveals that legislature has not imposed any restriction as regards the stage up to which an application for anticipatory bail can be entertained.

It placed reliance upon the Constitution Bench judgment in Gurbaksh Singh Sibbia (supra) wherein it was held that anticipatory bail can be granted so long as the applicant has not been arrested.

The Court then went on to examine the specific paragraph of Sushila Aggarwal which was cited by the Single Bench while making the reference. Upon perusing the same, the Court was of the considered opinion that the Single Judge failed to notice the sentence in its entirety which says,

“an application for anticipatory bail 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”.

Thus, the Court clarified the position of law laid down in the aforesaid para and held,

“It is common knowledge that upon completion of investigation, either charge sheet or final /closure report is filed. Thus, the Constitution Bench does not prohibit filing of application seeking anticipatory bail after filing of charge sheet, as it was held that such an application can be filed upon completion of investigation.”

The majority opinion went on to reproduce the following portion [Para 7.7] of the Constitution Bench judgment in the aforesaid case which lends corroboration to its interpretation.

“We are of the opinion that the conditions can be imposed by the court concerned while granting pre-arrest bail order including limiting the operation of the order in relation to a period of time if the circumstances so warrant, more particularly the stage at which the “anticipatory bail” application is moved, namely, whether the same is at the stage before the FIR is filed or at the stage when the FIR is filed and the investigation is in progress or at the stage when the investigation is complete and the charge-sheet is filed.”

Accordingly, Justice Tiwari came to the conclusion that an anticipatory bail application can very well be entertained even after filing of charge-sheet and further, the law is well settled that filing of charge- sheet does not affect continuance of anticipatory bail, if granted, as can be gathered from sub-Section (3) of Section 438 CrPC.

Chief Justice Sanghi authored a brief order agreeing with the aforesaid view of Justice Tiwari and observed,

“I agree with the view of my brother Manoj Kumar Tiwari, J. that the legislation has not imposed any restriction as regards the stage up to which an application for anticipatory bail can be entertained.”

However, Justice Maithani delivered a separate order wherein he made detailed analysis of a catena of judgments on the issue and came to the conclusion that anticipatory bail application cannot be entertained after filing of the charge-sheet.

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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