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Bharat Chaudhary And Another v. State Of Bihar And Another
Factual and Procedural Background
The appellants—a husband and wife—were accused by their daughter-in-law of offences punishable under Sections 504, 498-A and 406 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. After the High Court of Judicature at Patna denied their application for anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC), the appellants approached the Supreme Court. The Supreme Court issued notice on 19-5-2003 and protected the appellants from arrest pending hearing. The present opinion resolves the appellants’ statutory appeal against the High Court’s refusal to grant anticipatory bail.
Legal Issues Presented
- Whether the power under Section 438 CrPC to grant anticipatory bail survives once a competent court has taken cognizance of the offence or a charge-sheet has been filed.
- Whether the Supreme Court (and by analogy the High Court and Court of Session) is divested of jurisdiction to grant anticipatory bail in such circumstances, compelling an accused to surrender and seek regular bail under Section 439 CrPC.
Arguments of the Parties
Respondent State’s Arguments
- Invoked the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996) 1 SCC 667, to contend that once cognizance is taken the only permissible course is surrender followed by an application for regular bail under Section 439 CrPC.
- Asserted that any court, including the Supreme Court, lacked authority to grant anticipatory bail after cognizance, effectively eliminating Section 438 relief in such situations.
Appellants’ Arguments
The opinion does not elaborate specific arguments advanced by the appellants beyond their request for anticipatory bail.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667 | Anticipatory bail should ordinarily be of limited duration and the regular court should ultimately decide bail after the investigation progresses or a charge-sheet is filed. | The Court distinguished the precedent, emphasising that it provides only a guideline on duration of anticipatory bail and does not bar courts from granting such bail after cognizance or filing of a charge-sheet. |
Court's Reasoning and Analysis
Justice N. Santosh Hegde, writing for the Supreme Court, undertook a textual and purposive interpretation of Section 438 CrPC:
- Statutory Text: The opening words of Section 438(1) permit “any person” who apprehends arrest for a non-bailable offence to apply to the High Court or Court of Session. The Court found no express limitation linked to the stage of the proceedings.
- Section 438 aims to prevent undue harassment through pre-trial arrest and detention. Curtailing the remedy after cognizance would defeat this legislative objective.
- Interaction with the Salauddin Judgment: A careful reading of Salauddin revealed no absolute bar. That decision merely advises courts to grant anticipatory bail for a limited duration, leaving further questions to the trial court once fuller material is available.
- Practical Considerations: Accepting the State’s argument would, in every case where cognizance is taken, “denude” all courts of their Section 438 power, undermining the statutory scheme.
- Guidelines for Future Cases: While gravity of the offence and the need for custodial interrogation remain relevant factors, the mere filing of a charge-sheet or taking of cognizance cannot by itself bar anticipatory bail.
Holding and Implications
Appeal Allowed; Anticipatory Bail Granted. The appellants shall be released on anticipatory bail, if arrested, upon executing a self-bond of Rs 5,000 each with a surety for the like amount and compliance with the conditions enumerated in Section 438 CrPC.
Implications: The decision clarifies that courts retain jurisdiction to grant anticipatory bail even after cognizance is taken or a charge-sheet is filed, subject to judicious consideration of case-specific factors. It reinforces Section 438’s protective purpose without creating an open-ended entitlement, thereby guiding lower courts on the permissible scope and duration of anticipatory bail.
N. Santosh Hegde, J.— Heard learned counsel for the parties.
2. Leave granted.
3. The appellants in this case are husband and wife and were accused by their daughter-in-law of offences punishable under Sections 504, 498-A and 406 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act. Their application, filed under Section 438 of CrPC for grant of anticipatory bail has been rejected by the High Court of Judicature at Patna. The said order is under challenge in this appeal. When this matter came up for preliminary hearing on 19-5-2003, we issued notice to the respondents and also made an interim order not to arrest the appellants in the meantime. Today after hearing the parties on facts, we are inclined to grant anticipatory bail to the appellants.
4. Shri B.B Singh, learned counsel appearing for the respondent State, however, raised a legal objection. His contention was that since the court of first instance has taken cognizance of the offence in question, Section 438 of CrPC cannot be used for granting anticipatory bail even by this Court and the only remedy available to the appellants is to approach the trial court and surrender, thereafter apply for regular bail under Section 439 of CrPC. In support of this contention the learned counsel relied on the judgment of this Court in the case of Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667.
5. If the arguments of the learned counsel for the respondent State are to be accepted then in each and every case, where a complaint is made of a non-bailable offence and cognizance is taken by the competent court then every court under the Code including this Court would be denuded of its power to grant anticipatory bail under Section 438 of CrPC.
6. We do not think that was the intention of the legislature when it incorporated Section 438 in CrPC which reads thus:
“438. (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.”
7. From the perusal of this part of Section 438 of CrPC, we find no restriction in regard to exercise of this power in a suitable case either by the Court of Session, High Court or this Court even when cognizance is taken or a charge-sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, in our opinion, prevent the courts concerned from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. In our opinion, the courts i.e the Court of Session, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of CrPC even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the court to do so.
8. The learned counsel, as stated above, has relied on the judgment of this Court referred to hereinabove. In that case i.e namely Salauddin Abdulsamad Shaikh (1996) 1 SCC 667 a three-Judge Bench of this Court stated thus:
When the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration, the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted.
Ordinarily the court granting anticipatory bail should not substitute itself for the original court which is expected to deal with the offence. It is that court which has then to consider whether, having regard to the material placed before it, the accused person is entitled to bail.
9. From a careful reading of the said judgment we do not find any restriction or absolute bar on the court concerned granting anticipatory bail even in cases where either cognizance has been taken or a charge-sheet has been filed. This judgment only lays down a guideline that while considering the prima facie case against an accused the factum of cognizance having been taken and the laying of a charge-sheet would be of some assistance for coming to the conclusion whether the claimant for anticipatory bail is entitled to such bail or not. This is clear from the following observations of the Court in the above case:
“It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted.”
10. From the above observations, we are unable to read any restriction on the power of the courts empowered to grant anticipatory bail under Section 438 of CrPC.
11. We respectfully agree with the observations of this Court in the said case that the duration of anticipatory bail should be normally limited till the trial court has the necessary material before it to pass such orders and it thinks fit on the material available before it. That is only a restriction in regard to blanket anticipatory bail for an unspecified period. This judgment in our opinion does not support the extreme argument addressed on behalf of the learned counsel for the respondent State that the courts specified in Section 438 of CrPC are denuded of their power under the said section where either the cognizance is taken by the court concerned or a charge-sheet is filed before the appropriate court. As stated above, this would only amount to defeat the very object for which Section 438 was introduced in CrPC in the year 1973.
12. As observed above and having heard the learned counsel for the parties, we are of the considered opinion that the appellants in this case should be released on bail, in the event of their being arrested, on their furnishing a self-bond each for a sum of Rs 5000 and a surety to the like sum. The appellants shall abide by the conditions enumerated in Section 438 of the Code.
13. Appeal allowed.
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