The decisions of the Supreme Court in Satender Kumar Antil v CBI regarding procedure to be followed by courts in cases where the investigation agency has not arrested the accused person and filed its chargesheet, is critically analyzed in this article.
I. Introduction
The Supreme Court, in the last one year, has given a series of three decisions attempting to answer the critical query: Whether a person who has not been arrested by the investigation agency, should be taken into custody by the court upon filing of chargesheet and his appearance in such court?
This article analyzes the following decisions of the Supreme Court and summarizes the legal position as it stands today considering the decisions collectively:
Satender Kumar Antil v CBI (2021) 10 SCC 773, dated 07.10.2021 (‘Antil-1’)
Satender Kumar Antil v CBI 2021 SCC OnLine SC 3302, dated 16.12.2021 (‘Antil-2’)
Satender Kumar Antil v CBI 2022 SCC OnLine SC 825, dated 11.07.2022 (‘Antil-3’)
II. Background
Let us briefly consider the background of the Antil cases. The petitioner was named as an accused in the FIR registered by the Central Bureau of Investigation (‘CBI’); the investigation was completed without arresting the person, and chargesheet was filed with the court. The chargesheet was taken on record by the court (cognizance was taken), in the absence of the accused person, and the court issued summons for the person directing him to be present in the court on a certain date. However, the person did not make himself present in the court and rather filed an anticipatory bail application. The bail application was rejected, and the court issued a non-bailable warrant against the accused person. Ultimately, the matter reached the Supreme Court.
In its first interim order dated 28.07.2021, the Supreme Court questioned the need for anticipatory bail for the petitioner as there should not be any fear of being taken into custody and rather it was the petitioner himself who was not appearing in the court. The petitioner highlighted the major lacuna before the court and submitted:
“The system which is sought to be followed especially in the State of Uttar Pradesh is that even if a person is not arrested during the investigation, on charge sheet being filed, more so, in such cases of CBI a person is sent to custody and thus, his appearance and applying for bail would have resulted in his being sent to custody”
The Supreme Court found this position of the law to be incorrect and decided that it will be appropriate to lay down some principles in this regard.
III. Guidelines laid down in Antil-1 decision
The Supreme Court, in its Antil-1 decision, categorized various offences into four (4) categories and laid down certain guidelines for the procedure to be followed in cases which meet the pre-requisite conditions that (i) the person should not have been arrested during the investigation, and (ii) the person should have co-operated throughout the investigation including appearing before the investigating officer whenever called for.
The categories of offences and the guidelines prescribed in Antil-1 are as follows:
Category A: Offences punishable with imprisonment of 7 years or less not falling in categories B and D
After the filing of the charge sheet/complaint and taking cognizance of the same:
a) Ordinary summons at the first instance, including permitting appearance through lawyer;
b) If the accused does not appear despite service of summons, then a bailable warrant (‘BW’) for physical appearance may be issued;
c) Non-bailable warrant (‘NBW’) to be issued on failure to appear despite issuance of BW;
d) NBW may be cancelled or converted into a BW/Summons without insisting on the physical appearance of the accused if the accused files such an application and undertakes to appear on the next date.
e) Bail application may be decided on his appearance without the accused being taken in physical custody or by granting interim bail till the bail application is decided.
Category B: Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years
On the appearance of the accused, bail application to be decided on merits.
Category C: Offences punishable under special Acts containing stringent provisions for bail like NDPS Act [S. 37], PMLA [S. 45], UAPA [S. 43D (5)], Companies Act [S. 212(6)], etc.
On the appearance of the accused, bail application to be decided on merits, along with the compliance of the provisions of bail contained in the special Act.
Category D: Economic offences not covered by special Acts
On the appearance of the accused in Court pursuant to process issued bail application to be decided on merits. Further, the seriousness of the charge and the severity of the punishment imposed by the statute should also be considered.
IV. Clarifications given in Antil-2 decision
After two months, the Supreme Court, in its Antil-2 decision, issued certain clarifications to the above Antil-1 order. The clarifications are summarized as follows:
The intent behind Antil-1 guidelines was to ease the process of bail and not to restrict it. The guidelines do not impose additional fetters, rather, they intend to enlarge the scope of bail;
Merely by categorizing certain offences as economic offences (Category D) which may be non-cognizable, no different meaning should be given to the Antil-1 order; and
If during the course of investigation, there has been no cause to arrest the accused person, merely the filing of chargesheet would not be an ipso facto cause to arrest him, an aspect already clarified in the decision in the case of Siddharth v State of UP (2022) 1 SCC 676.
V. Clarifications given in Antil-3 decision
In its Antil-3 decision, the Supreme Court has reiterated the bail jurisprudence and also given some clarifications regarding the various categories of offences. The observations of the court are summarized as follows:
Regarding the general bail jurisprudence, the court reiterated its various earlier decisions with regard to the procedure for arrest (ss. 41, 41A, and 60A of CrPC), issuance of warrants and taking bonds (ss. 87 and 88), default bail (s. 167(2)), custody and chargesheet (s. 170), issue of process and committing cases to court (ss. 204 and 209), adjournments (s. 309), suspension of sentence pending appeal (s. 389), bail on half sentence served as undertrial (s. 436A), bail provisions (ss. 437 and 439), and amount of bond (s. 440).
-- It is notable that the Supreme Court reiterated its decision in the case of Siddharth v State of UP (supra) and held that strict compliance has to be made with the decision. The court held that in a case where the prosecution does not require the custody of the accused, there is no need for an arrest under section 170 of CrPC; there is not even a need for filing a bail application as the accused is merely being forwarded to the court for framing of charges and issuance of process for trial. It was held that the court may fall back on the provisions of section 88 of CrPC and take bonds and ensure presence of the person during trial. The same observations were made by the court for s. 209 of CrPC also.
-- The court has clarified that there should not be any insistence of a bail application while considering the application under sections 88, 170, 204, and 209 of CrPC.
-- The court has also clarified that bail applications should be disposed off within a period of two weeks and anticipatory bail applications within six weeks.
Regarding Category A and B offences, the court stated that the general bail principles as reiterated above would apply to these categories of offences. Further, in Category A, one would expect a better exercise of discretion on the part of the court in favour of the accused while for Category B, cases will have to be dealt with on a case-to-case basis but keeping in view the general principles of law and the provisions.
Regarding Category C offences (special Acts), the court, without going through the provisions of the statutes individually, observed that the general principle governing delay would apply to these categories also and the rigors contained in the special Act regarding bail would not apply if substantial delay was being caused. The most important thing that the court clarified for this category is that in a case where the accused is either not arrested consciously by the prosecution or arrested and enlarged on bail, there is no need for further arrest at the instance of the court (Para 65 of the decision). The court held that the observations regarding section 170 of CrPC (supra) would apply to this category also.
Regarding Category D offences (economic offences), the court importantly clarified that it is not advisable on the part of the court to categorize all the offences into one group (i.e., economic offences) and deny bail on that basis. It means that the court rejected the idea that just because the committed offence is an economic offence, the bail cannot be granted and observed that each case should be seen separately and the decision on bail should be decided on the gravity of the offence, the object of the Special Act, and the attending circumstances along with the period of sentence [the court referred to P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791].
VI. Conclusion
As the Supreme Court held in Antil-2 decision, the intent of the court behind the Antil series of decisions was to enlarge the scope of bail and remove doubts that arose in the application of statutory provision leading to fetters on individual liberty. However, in effect, the Antil series of decisions fall considerably short in achieving so.
Firstly, regarding the Category A offences involving punishment up to seven years, the courts in India have anyways been liberal in granting bail and other reliefs to the accused persons. Specially for persons who were not arrested during investigation, the grant of bail would generally be immediate.
Secondly, the procedure set out for Category A offences (i.e., issuance of summons, followed by BW, and then NBW, and then considering bail upon appearance) is more than generally the procedure followed after several authoritative decisions of the Supreme Court on the subject matter of procedure. Thus, nothing new is laid down in the procedure also.
Thirdly, regarding Category B (punishment more than 7 years) and D (economic offences), there is absolutely nothing that is prescribed. The guidelines, read with the clarifications, merely state that bail should be filed which should be considered on merits.
Fourthly, regarding Category C offences (special Acts) also, there is absolutely nothing prescribed and the guidelines merely state that the rigors of the bail conditions contained in the special Acts should also be considered by the court while granting bail.
Fifthly, the categorizing of offences gives rise to another set of doubts as to where would an offence fall. For instance, there is no definition of ‘economic offences’ given or used in the decisions. By creating a separate category for economic offences, even offences punishable for, say, 5 years (e.g., offences under the GST law – s. 132 of CGST Act, 2017), which were otherwise less-grave, are now within Category D. The benefit that would have been otherwise available to an accused person regarding getting bail is now taken away.
Sixthly, these decisions do not consider the fate of anticipatory bails that are regularly filed before lower courts and High Courts in such fact scenarios. It has been held by the Supreme Court that anticipatory bails may be filed after the filing of chargesheet, in anticipation of being taken into custody by the court (in Bharat Chaudhary v State of Bihar (2003) 8 SCC 77).
Lastly, the question of law and procedure that was sought to be addressed (i.e., whether a cooperating accused, who has not been arrested during investigation and chargesheet has been filed, should be taken into custody upon his appearance in the court) still does not stand answered. An elaboration of sections 88, 170, and 205 of CrPC would by itself have solved the problem, and the correct procedure as follows should have been laid down:
(i) Custody as mentioned in s. 170 means only being present in the court and there is no default or compelling requirement under that section that the accused should be taken into custody by the court and thereafter, he should apply bail. (as laid down in Siddharth v State of UP (supra));
(ii) The accused person may apply for exemption from personal appearance under s. 205 of CrPC, and the court may (a) either grant such exemption at the first instance, for the entire proceeding or for a specific period, or (b) reject such exemption and continue with the proceeding through process;
(iii) When the accused is present in the court, the court may take his bond under s. 88 of CrPC, with or without sureties, for his appearance during trial. However, if the person has not appeared in the court on his own and rather has been compelled through an NBW, the court may not exercise its discretion under s. 88 (as laid down in Pankaj Jain v Union of India (2018) 5 SCC 743).
Considering the number of accused persons whose fate depends on the procedure laid down by law and the Supreme Court, it is imperative that further clarity is brought to the doubts existing even now after these decisions. It would be interesting to see if any further clarifications are issued or if any legislative changes are brought in the law governing bails and dealing with this peculiar fact situation.
Authored by the Editorial Team, Metalegal Advocates. The views expressed are personal and do not constitute legal opinion.