Supreme Court Refuses To Entertain Lawyers Group's PIL Seeking Guidelines On Grant Of Bail In Complaint Cases At Post-Cognizance Stage

The bench of Justices SK Kaul and MM Sundresh while dismissing the petition as withdrawn in their order noted,

"Since a larger canvas is being debated before us in SLP (Crl) No 5191/2021 and the Additional Solicitor General has to assist us, Ms Maneka Guruswamy, ld senior counsel may be permitted to give her suggestions to the learned Additional Solicitor General in this behalf. The petition is dismissed as withdrawn. The writ petition is dismissed as withdrawn in terms aforesaid with liberty to Ms Maneka Guruswamy to give her suggestions to the learned Additional Solicitor General."

Senior Advocates Nalini Chidambaram and Maneka Guruswamy appeared for the petitioners (Lawyers Against Malicious Prosecution).

When the matter was called up for hearing, Justice Kaul, the presiding judge of the bench remarked, "Ms Chidambaram, how can this petition arise? We have already laid down the law. Now you want us to lay down principles for the designated special courts such as ED for them to follow."

To answer the question put forth by Justice Kaul, Senior Advocate Nalini Chidambaram relied on the Top Court's judgement in Siddharth vs State of Uttar Pradesh &Anr in which the Court, while interpreting Section 170 CrPC, held that the police need not arrest each and every accused after the filing of the chargesheet.

Adding that the order in Siddharth had clarified the position of the arrest of the accused u/s 170 CrPC at the post-investigation stage after completion of the investigation, Senior Counsel submitted that a similar position in matters u/s 200 and 204 CrPC remained open with high ambiguity.

"Yes, we did. When a situation arises we have to lay down the law. When the case of ambiguity comes, we have to clarify it. We have different matters coming up before us. We will clarify their position in them. If we entertain these petitions at the behest of the associations, it will give the wrong impression," Justice SK Kaul added.

At this juncture, Senior Advocate Maneka Guruswamy representing the petitioners sought Court's permission to give her suggestions to the Additional Solicitor General in Satinder Kumar Antil v CBI.

"We are wanting to set some principles in place. ASG itself felt that some law needs to be laid down which can be followed uniformly," said Justice SK Kaul, the presiding judge of the bench while allowing Senior Counsel to give her suggestions.

The petitioner in the petition filed through Advocate Prateek K Chadha had argued that the Complaints/Prosecution Complaints filed by a non-police force stood on a lower footing than the Final Report filed by a Police Force u/s 170 and 178 of CrPC and if the investigating agency had not arrested the accused during investigation, then sending the accused(s) to judicial custody pursuant to them being produced before the designated special courts was violative of their right under Article 21 of the Constitution of India.

"In such situations as above, the accused is denied the right (remedy) available to him/her under Cr. P.C Section 438 / 439 to apply for anticipatory bail as the accused is either arrested under a NBW and produced before the Court and/or, he/she is remanded to judicial custody on his / her appearance in the designated court and the court taking cognizance of the complaint. And Hon'ble High Courts often do not accept Cr.P.C 438 / 439 petitions till cause of action apprehending arrest arises from cognizance of a complaint being taken by the designated special court by which time it is too late for the accused to avail of the Cr.P.C Section 438 / 439 remedy," petition had stated.

It was also argued in the petition that the issue of NBW in matter pertaining to section 200 and 204 CrPC, 1973 and remanding the accused(s) to judicial custody despite not being arrested during the investigation was almost a foregone conclusion in complaints filed by ED, Customs, DRI & other such specialized agencies who had powers to arrest but filed a complaint under Cr. P.C 200 & 204 which resulted in the incarceration of accused(s) for long periods in judicial custody due to such approach by the trial courts.

The Supreme Court bench of Justices SK Kaul and Hrishikesh Roy on July 28, 2021, in Satinder Kumar Antil v CBI had decided to lay down principles as to whether a person who was not arrested during the investigation, on the charge sheet being filed could be sent to custody when he appeared on receipt of summons.

Case Title: Lawyers Against Malicious Prosecution v Union of India and Anr| Writ Petition (Civil) No(s) 389/2021

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