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Anticipatory Bail in CrPc: Explainer through Asfak Alam Case

Intro and Background:
Our criminal laws in the name of Gender Parity give a tool to policemen to take a toll on rights. The deference to fundamental rights is often accorded in the same vain, such deference may also lead to the grave injustice often against the male counterpart.

India has been fighting against various forms of inequality in personal laws and their prevalent customs, Dowry and Child Marriage being one of them, the thing that often goes out of sight is the heavy powers that CrPc gives to the police and the burden it puts on the other party as in Sec 125 only if it is not put carefully.

This arguement doesn't despise law but it shows the small but very much existent cases that entail the misuse perhaps mechanical use of CrPc that being a tool of justice leads to injustice. Asfak Aslam vs State of Jharkhand case is no exception, apart from the factual matrix of the case and the mechanical use of law that it states to not do, the matter also being highlighted is the pure prejudice people have against the male counterparts in dowry cases or the whole canvas of matrimonial disputes in general, it shows that perhaps the utilitarian way to justice is not the correct way and lastly it emphasizes on previously laid down judgements that were progressive in nature but not prejudicial.

The case is a matrimonial dispute case that changed the face of police arrest and showed that even the judiciary can be wrong. It shows the Powers of the Supreme court and what makes it 'supreme' in nature. It values its precedents and develops upon them new guidelines for arrest. It is also a landmark case for anticipatory bail and limit on the discretion of the court on giving bail orders. Bail as a matter of right and discretion on the court is also being discussed herein.

Overall the case in name of Matrimonial dispute serves as a correction tool for the arrest of a person, it checks on the police's power to make such arrest , it increases the scope for anticipatory bail as well as bail in general, it itself lays down the scope for a court giving bail to a person and through its precedent it gives rather reiterates the guidelines of arrest of a person.

Asfak Aslam v State of Jharkhand

In the Apex - Supreme Court of India

Coram: S Ravindra Bhatt and Aravnid Kumar Counsels -
Plaintiff: Samahar Singh, Shweta Kumari
Defendant: Vishnu Sharma, Madhusmita Bora Subject
Criminal Date - 31.7.2023

Facts of the Case: The case was between father in law and the son in law, the facts of the case are as follows - The second Respondent and the appellant were wed. The appellant claimed that the respondent-wife's father used to meddle and put pressure on him and his family because she wasn't satisfied. As a result, the appellant's family was threatened, and the wife's family was the target of complaints.

In Lalita Kumari v. State of UP the Five-Judge Bench issued directives to the Police that they must follow specific procedures before filing a First Information Report (FIR), but the Police disregarded the orders.

On February 4, 2022, the Police filed a formal complaint (FIR) against the The plaintiff, his brother, & other individuals. In addition to Sections 3 (penalty for giving or taking dowry) alongside 4 (penalty for demanding dowry) of the Dowry Prohibition Act, 1984, the FIR accused them of violating Section 498A (husband or relative subjecting her to cruelty), Sec 323 and Sec 504 as well as Section 506 (criminal intimidation) of the Indian Penal Code, 1860 (IPC).

Section 498A of IPC 1860 Anyone who submits a woman to cruelty while she is her spouse or a family member of her husband faces up to three years in prison as well as a fine. explanation (a) any intentional behaviour that poses a risk to the woman's life, limb, or health or that would encourage her to commit suicide; or (b) harassing the woman in a way that aims to force her or anyone connected to her to comply with any illegal demand for any kind of property or valuable security, or stems from her or anyone connected to her failing to comply with said demand.

Here arrest is made through - Sec 4 of the dowry prohibiton act Anybody who, through direct or indirect means, demands dowry from the parents, other family members, or guardians of the bride or bridegroom, as the case might be, faces a minimum sentence of six months in jail, a maximum sentence of two years, and a fine of up to 10,000 rupees.

With the caveat that a judge may impose a term of imprisonment of under six months in jail for appropriate and unique reasons that will be stated in the judgement.

The appellant was arrested and requested anticipatory bail before the Sessions Judge in Gumla, Jharkhand, in accordance with section 438; however, that request was denied on June 28, 2022.

The Appellant applied for anticipatory bail on June 28, 2022, hoping to be protected from possible arrest. The Trial Court denied the application. The nature of the allegations�which included charges for harassment, threats, and additional acts against the appellant�likely had an impact on the Court's decision to refuse anticipatory bail because they called for a careful review of the available evidence and their implications for the investigation.

The appellant appeared before the Jharkhand High Court on July 5, 2022, seeking anticipatory bail. The appellant cooperated with the inquiry at all times, and after it was finished, a charge sheet was presented before the Sessions Judge.

Sec 438 CrPc: 1 Under this section, anyone with reasonable suspicion that they may be detained for allegedly committing an offence for which bail is not available may apply to both the High Court and the Court of Sessions for an order indicating that, in the event of an arrest, he shall be released on bail. The Court may decide on this after taking a variety of things into account, such as,
  1. the accusations' nature and seriousness;
  2. the applicant's past, especially if he was incarcerated after being found guilty by a court of any crime that could be considered a crime;
  3. the applicant's potential to elude justice;
  4. The court may reject the application of anticipatory bail right away or issue an interim order allowing the bail if it is submitted with the intent to cause the applicant harm or disgrace by his arrest.

However, the officer in charge of a police station may arrest the applicant without a warrant based only on the accusations made in the application if the High Court or the Court of Session, as the case might be, has not issued any interim orders under this subsection or has denied the application for anticipatory bail.

1A. In order to provide the Public Prosecutor with a fair chance to be heard when the application is ultimately heard by the Court, the Court shall promptly cause a notice of at least seven days' notice, along with a copy of the interim order, to be served upon the Public Prosecutor and even the Superintendent of Police.

1B. If, upon the Public Prosecutor's application, the Court determines that the applicant's presence is required in the interests of justice, then the applicant requesting anticipatory bail must be present at the time of the final hearing for the application and the issuance of the final order.

2 i When the High Court or the Court of Session issues a directive pursuant to paragraph (1), it may incorporate any restrictions it deems appropriate, taking into account the specific facts of the case, such as�a requirement that the subject make himself available to undergo questioning by a police officer upon request; a requirement that the subject refrain from offering any inducement, threat, or promise to anyone who is aware of the case's facts in order to prevent them from telling the court or any police officer;

ii a requirement that the individual not depart India without the court's prior consent;

iii any additional requirements that could be set under provision 437, Subsection (3), as if bail were approved in accordance with that provision.

3 If, after making such an accusation, an officer in charge of the police station arrests the person without a warrant and the person is ready to post bail either at the time of the arrest or at any point while under the officer's custody, they will be released on bail. If, however, a magistrate who has been made aware of the offence determines that a warrant should be issued in the very first instance against the person, he will issue a bailable warrant according with the Court's directive under Sub-Section (1). The Code of Criminal Procedure, 1973 (Cr. P.C.) does not define the word Anticipatory Bail Application (ABA). Rather, the term was first used in the 41st Law Commission's Report, 1969 (the report), where the commission felt that a provision protecting an accused person or anyone who is apprehended or believes they may be arrested for any non-bailable offence should be included.

Per Section 436 in the Cr. P. C., bail becomes a matter of rights for bailable offences; under Sections 437 and 439 of the same law, bail is a matter for judicial discretion for non-bailable offences. In situations where bail under Sections 436, 437, and 439 can only be issued subsequent to an arrest, Section 438 offers what is known as Pre-Arrest bail, or anticipatory bail. The term "anticipatory bail" describes a bail that is granted before an arrest.

In the case of Sushila Aggarwal vs. State if NCT of Delhi (2020), the Supreme Court of India rendered a key decision, holding that anticipatory bail may be granted without a time limit and may be granted till the conclusion of the trial. The Court brought up the freedom struggle in India, arguing that the absence of institutional safeguards, arbitrary arrests, and indefinite detentions were major factors in motivating the populace to demand independence.

The appellant was granted temporary protection by the High Court on August 8, 2022, ordering the Police not to make an arrest while his Anticipatory Bail Application was pending. The Police filed a charge sheet as a result of the ongoing investigation. When the appellant's anticipatory bail application underwent review by the High Court on January 18, 2023, in spite of the protective order, the court denied the anticipatory release and ordered the appellant to appear before the appropriate court and request regular bail.

The High Court stated:
Taking into account the case's facts and circumstances as well as the opposing arguments made by the learned counsel, I discovered that the petitioner faces grave accusations that the informant was also cruelly treated by filing criminal charges against the members of his family shortly after the case was instituted. I am not inclined to grant the petitioner the privilege of anticipatory bail, which is denied, in light of the opposing submissions from skilled counsel, the materials that are available against the petitioner, and the seriousness of the charges. The petitioner is instructed to appear before the lower court and request regular bail; the lower court will evaluate the case on its own merit, unaffected by this directive.

The Court emphasised that the accusations demanded caution when granting anticipatory bail, taking into account the potential for tampering with evidence & influencing witnesses. The High Court's decision to reject the earlier interim protection underscored the Court's latitude in evaluating the need for an arrest in matrimonial offence cases and the criticality of upholding justice while safeguarding individual rights.

According to the appellant, the right to personal liberty is highly valued by the Constitution, and when the Accused's detention is required for an investigation or questioning, or in certain cases involving serious offences where it is impossible to completely rule out the Accused's capacity to influence witnesses, an arrest must be made prior to the filing of a charge sheet.

The argument put up by Learned Counsel is that just because an arrest may be made, it does not follow that it should be undertaken in every situation. It is important to remember the difference between the mere fact that the power to arrest exists and the reason for using it. Thus, it is maintained that in this case, the CrPC has Sec 41A that has to be adhered to. Section 41-A7 attempts to stop unwarranted arrests of the accused.

The Code of Criminal Procedure (Amendment) Act, 2008 introduced it in Section 6, and 2010 later updated it. Police officers may now give a notice to someone who has been the subject of a legitimate complaint, solid information, or reasonable suspicion that they have done a crime that is punishable by law. According to the revised clause, the person must abide by the notice's requirements; if they do not, or if they do not identify themselves, a police person has the authority to arrest them for the crime specified in the notice.

The case of Rakesh Kumar vs. Vijayanta Arya noted that the arrest not only causes shame and indignity to the accused, but also damages the reputation of his entire family. The accused and his family members suffered humiliation and disgrace that could not be restored, no matter how much justification was given to the neighbours and those who witnessed the arrest. A person is destroyed by arrest and incarceration, and a number of innocent relatives suffer as a result.

41A.Notification of police officer appearance:
  1. In all cases where the arrest of the individual is not required under the provisions of subsection (1) of section 41, the police officer shall issue a notice directing the person towards whom a reasonable complaint has been filed, or credible information received, either a reasonable suspicion exists that the person has engaged in a cognizable offence, to appear before him in or at any other place as may be specified in the notice.
  2. If someone receives one of these notices, it is their responsibility to abide by its provisions
  3. If the subject obeys the notice and keeps doing so, he won't be detained for the offence mentioned in it unless the police officer believes that he should be arrested for grounds that will be documented.
  4. The police officer can, in addition to any orders that may have been issued by a competent Court on this regard, arrest the individual for the offence specified in the notice if they at any point refuse to comply with the notice's conditions or refuse to identify themselves.
The Counsel relied on the Arnesh Kumar Case, Satendra Kumar Case and Siddhart vs State of UP Case to emphasise the submissions and to make clear that the accused should only be placed under arrest if the investigating officer has reason to suspect that they may flee or refuse to follow a summons.

The State's learned counsel argued that an accused person is never automatically entitled to the payment of anticipatory bail, which is always a decision that is made at the discretion of the court. This was the case with charge sheets. The Court consistently considers the potential for an accused person to influence witnesses or tamper with evidence in other ways, depending on his prior behaviour. It was brought to light that the respondent, she is the complainant in this instance, claimed that, shortly after they were married, the appellant or his relatives had been harassing her regularly at the marital residence, and that she was at times threatened with death.

The Appellant filed a criminal appeal Number. 2207 of 2023 with the Supreme Court, citing grievances over the High Court's Order dated January 18, 2023. The Supreme Court, in an order dated July 31, 2023, held:

The Apex Court carefully considered the matter before concluding that the appellant's request for anticipatory relief was not supported by any unique circumstances. The appellant's charges were unclear, and the court took that into consideration. Before and after the 08-08-2022 ruling, the appellant assisted the police investigation when they requested anticipatory bail. The Court determined that the Appellant should have been granted bail by the High Court at the time the charge sheet was submitted. Nevertheless, after the Court denied the Application, the Appellant was instructed to turn himself in and request regular bail.

Ratio Decidendi:
The most important factors to consider when demanding bail or an anticipatory bail are the nature and severity of the offence, the accused's propensity or ability to sway evidence during an investigation or obstruct a trial by threatening or otherwise attempting to influence witnesses, the accused's possibility of escaping justice, and other factors.

When granting anticipatory bail, the court has always stressed the value of individual liberty. The court should use prudence and discretion when dealing with significant charges, such as those that carry lengthy penalties or unique offences.

The seriousness of the crime, the accused's capacity to tamper with evidence or disrupt the legal proceedings, and the po Sushila Aggarwal vs. State (NCT of Delhi)ssibility of the accused escaping justice are the main factors taken into account while deciding whether to grant bail or anticipatory bail. The court has complete control over the proceedings and has the authority to set rules to guarantee the accused's attendance and involvement. These rules should serve as the court's constant guiding in each case.

In the five-judge bench decision in , the court reviewed earlier rulings, taking into account the ruling in Gurbaksh Singh's Sibbia vs. State of Punjab, and made a determination regarding the appropriateness of imposing restrictions on the amount of pre-arrest bail, in particular in relation to the filing of a charge sheet. In its ruling (M.R. Shah, J.), the court concluded, among other things, that:

In light of the observations made by the Constitution Bench of this Court in Gurbaksh Singh Sibbia v. State of Punjab, the judge may, if appropriate, limit the duration of the order to a short period of time only after a formal complaint pertaining to the order's subject matter is filed. In such a case, after filing the formal complaint, the applicant may be directed to secure an order of bail under Sections 437 or 439 of the Code within a reasonable amount of time.

The Constitution Bench additionally stated that there is no requirement that the same be adhered to consistently. It is further noted and decided that the standard practice ought to be to refrain from restricting the order's operation to a specific time frame. We believe that if the circumstances warrant it, the court can impose conditions when granting a pre-arrest bail order.

These conditions can include restricting the order's operation for a specific period of time, specifically the stage when the "anticipatory bail" application is made. This can occur just before a FIR is filed, during the investigation while the FIR is pending, or after the investigation is finished and the charge sheet is filed. But as previously noted, it is often not advisable to restrict the order in connection to a time frame

The author of this judgement issued a concurring opinion, stating that section 438 CrPC doesn't require or obligate courts to impose time-based relief restrictions or to record witness statements made by the police during an investigation or inquiry. The court must take into account a number of factors when evaluating an application for the granting of anticipatory bail, including the nature of the crime, the applicant's role, the possibility that he will influence the investigation's direction or tamper with evidence by intimidating witnesses, the possibility that he will flee justice by leaving the country, etc.

By reason of Section 438(2), the courts would be entitled to impose the conditions listed in Section 437(3) CrPC. Additional restrictive measures would have to be evaluated on a case-by-case basis and in the context of the information provided by the State and the investigative agency.

Such specific and other strict criteria may be imposed if the case or circumstances justify it; nonetheless, they should not be applied uniformly. Comparably, conditions that limit the amount for anticipatory bail may be granted if they are required in light of the particulars of any case or cases; however, these requirements may not always be met.

The type and gravity of the charges, the applicant's role, plus the facts of the case should generally guide judges in determining whether to grant anticipatory bail or reject it. The court will determine whether to grant and, if so, what kind of extraordinary conditions to impose. These choices are discretionary and dependent on the facts of the situation.

Depending on the accused's actions and conduct, anticipatory bail may be granted from the time the charge sheet is filed until the conclusion of the trial.

Additionally, anticipatory bail orders shouldn't be "blanket," meaning they shouldn't allow the defendant to commit new crimes and then request forgiveness. It must be limited to the offence / incident for which an arrest is requested in connection with a particular incidence.

It is not applicable to a future incident involving the commission of a crime. Through the history of our Republic, Section 438�a statute designed to stop arbitrary arrests & indefinite detention�has played a vital role. According to reports from the Law Commission, arrests are commonplace and are frequently utilised to harass or humiliate residents as well as to the advantage of powerful people. Arbitrary arrests are still a common occurrence despite multiple Law Commission investigations and recommendations. Parliament has not given any thought to restricting the courts' pre-arrest , anticipatory bail authority, particularly in cases involving serious offences.

The Court's legal interpretation should not restrict the use of this authority since doing so would reduce the discretion to an incredibly small and unrecognisable amount, defeating the purpose of the clause. The Court's discretion must be broad to prevent a minuscule and restricted fraction that would ultimately impede society's wider goals.

The cases that counsel referenced are helpful and insightful manuals regarding the authority of the police officers, the court's discretion, and its responsibilities in a variety of situations, including those involving marriage offences like 498A of the Indian Penal Code, among other cases.

It was decided in Arnesh Kumar (above) that: According to clause (1) of the section 41 CrPC, a person cannot be arrested for a crime just because a police officer is confident that the accused perpetrated it, even if the crime carries a sentence of no more than seven years in prison or a maximum of seven years in jail with or without a fine.

The arresting officer must be persuaded prior to making an arrest that the arrest is required to stop the accused from committing new crimes, to conduct a thorough investigation, or to stop them from destroying or altering evidence.

In addition, the legislation requires police officer to put the facts in writing and justify the arrest. First, the police officer needs to ask oneself why the arrest is required, what good it will do, and what goal it will accomplish.

The power for arrest must be used after answering these queries and meeting one or more requirements. In fine, based on information and material, the police officer must have a reasonable suspicion that the accused committed the offence before to making an arrest. Furthermore, the arrest has to be required for one or more of the goals specified in Section 41 CrPC clause (1)'s subclauses (a) through (e).

Making deduction from the Siddhart Case the court said that:
We might see that a key component of our constitutional requirement is personal liberty. When a custodial investigation is required, the crime is terrible, there is a chance of influencing the witnesses, or there is a chance the accused may flee, there is a reason to arrest the accused during the course of the inquiry. There is no requirement that an arrest be made just because it is legal to make one. There is a difference between having the authority to make an arrest and having a reason to use it.

Routine arrests have the potential to irreversibly damage a person's reputation and self-esteem. Since the accused has cooperated with the investigation throughout and there is no reason to believe that they would run or refuse to comply with the summons, we fail to see why the investigating officer should be obliged to arrest the accused. Because there are no particularly noteworthy characteristics or circumstances, this Court finds that the appellant in this case is not entitled to an order of anticipatory bail.

The question at hand is whether the allegations brought against the appellant were true or false at this time, which would be at most conjectural at this point�at least for this Court. It makes no difference if the marriage terminated practically before the couple could settle down. However, it should be noted that the time the anticipatory bail had been pending might be divided into two periods: the first was between April 2022 - August 8, 2022, during which he was not covered by any temporary order. Second, on August 8, 2022, the High Court issued an order essentially instructing the police not to detain him while his application per Sec 438 was pending. Notably, the inquiry was finished, the chargesheet was submitted after August 8, 2022, and the Sessions Judge actually took cognizance on October 1, 2022.

These were significant elements, and while the High Court acknowledged them, it gave them a very different interpretation. According to the record, the appellant assisted with the investigation prior to August 8, 2022, when he was not granted protection, and following August 8, 2022, when he was granted protection until the chargesheet was filed and it was recognised on October 1, 2022. Because of this, the court should have automatically granted bail after the chargesheet had been submitted and the accused was unable to stop it.

The court took into account the allegations, the nature of the offences, and the maximum sentence that the offences were likely to bring. However, the court chose not to do so, just shrugging aside the appeal with a robotic air and, as the last straw, ordering the appellant to appear in person before the Trial judge to request ordinary bail. Consequently, this court believes that the High Court erred by taking such a casual stance. Because of this, the contested order�which ordered the appellant to surrender and then request bail�cannot stand and is hereby overturned.

Prior to adjourning, the court would instruct all courts that had halted proceedings to adhere precisely to the legal precedent set by Arnesh Kumar (above) and would restate the directives included therein, among other directives:

With this ruling, we hope to prevent police personnel from making needless arrests of suspects and magistrates from arbitrarily and automatically authorising their imprisonment. To verify the aforementioned observations, we provide the subsequent instructions:
11.1. Every State Government should give its police personnel the instruction to determine if an arrest is required using the above-mentioned standards derived from Section 41CrPC rather than to make an arrest automatically when a charge according to Section 498-A IPC gets registered;

11.2. Under Section 41(1)(b)(ii), a check list with specific subclauses should be given to every police officer;

11.3. An police officer will present the accused to the magistrate for additional detention, transmit the properly completed check list, and provide the documentation and justifications for the arrest;

11.4. The magistrate must read the police report provided in accordance with the aforementioned requirements before approving the accused's custody; the magistrate will only grant detention after noting that the report has been satisfactorily completed;

11.5. The District Superintendent of Police may extend the decision to not arrest an accused person for reasons that must be documented in writing, and it must be sent to the magistrate with a copy within two weeks of the case's initiation;

11.6. The accused shall receive a notice of appearance according to with Section 41-A CrPC within two weeks after the case's initiation date; the district superintendent of police may extend this time for reasons that must be documented in writing;

11.7. In addition to facing departmental discipline, the police officers in question who disobey the aforementioned instructions risk being found in contempt of court and facing legal action from the territorially competent High Court.

11.8. The competent High Court may take departmental action against the person who authorises detention without documenting the Judicial Magistrate's stated grounds.

12. We hasten to add the fact that the aforementioned instructions will not only be applicable in the current case according to Section 498-A IPC and Section 4 of the Dowry Prohibition Act, but also in similar cases where the offence is punishable by a term of imprisonment that may be less than or equal to seven years, with or without fine.

The Sessions courts, as well as all other criminal courts handling other offences, must abide by the aforementioned directives, which the High Court will formulate as notifications and guidelines. Similarly, every State's DGP is responsible for making sure that stringent guidelines pertaining to the aforementioned directives are followed.

Within eight weeks of today, the High Courts & the DGPs of every State will make sure that these directives and departmental circulars are released for the benefit of all subordinate courts and law enforcement agencies in every State.

All states and High Courts must provide affidavits of compliance with this Court through their Registrars within ten weeks.

Commentary on the Judgement:
In Lalita Kumari versus Government of UP, the Five Judge Bench had taken into consideration the significance of filing the earliest information as a First Information Report (FIR) for two reasons: first, to ensure that the criminal process is initiated and thoroughly documented from the outset; and second, to ensure that the earliest information obtained in relation to the commissions for a cognizable offence is documented in order to prevent any exaggeration, etc.

The Court further listed some categories of cases that would be eligible for a preliminary investigation, including those involving medical malpractice, family conflicts, business offences, matrimonial disputes, corruption, and cases with unusually long delays in the start of criminal prosecutions without a good reason. Before filing a formal complaint, a preliminary investigation must be carried out in matrimonial / family disputes to ascertain whether a crime is cognizable and to safeguard the interests of the accuser & accused.

The police must abide by the instructions provided in this ruling. Here the Arnesh Guidelines along with the other cases provide that there is no immediate need to arrest the party in case of Sec4 as a notice has to be given for offenences under 7 yrs of imprisonment.

As a result, the appeal is granted in the previously stated terms. It is ordered that the appellant be released on expanded bail, subject to any restrictions that the trial court might set forth. All of the High Courts & Police Authorities .States must abide by the aforementioned instructions within the specified time frame and in the manner specified in the paragraph above.

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