It is definitely most refreshing, most reassuring and most rejuvenating to learn that none other than the Apex Court itself in a most learned, laudable, landmark and latest judgment titled Md Asfak Alam v. State of Jharkhand & Anr in Criminal Appeal No(s). 2207 of 2023 [Arising Out Of Special Leave Petition (CRL.) No. 3433 of 2023 and cited as 2023 INSC 660 and also cited as 2023 LiveLaw (SC) 583 that was pronounced as recently as on July 31, 2023 has reiterated the landmark guidelines laid down by the top court itself for arrest under Section 498A of the IPC and for other offences punishable by a maximum jail term of seven years in its 2014 Arnesh Kumar judgment. Not only this, a Bench of Apex Court comprising of Hon’ble Mr Justice S Ravindra Bhat and Hon’ble Mr Justice Aravind Kumar has also most commendably directed the High Courts and the police chiefs to issue notifications and circulars in terms of the 2014 judgment to ensure strict compliance. Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice S Ravindra Bhat for a Bench of Apex Court comprising of himself and Hon’ble Mr Justice Aravind Kumar sets the ball rolling by first and foremost putting forth in para 1 that, “On the previous date of hearing, i.e., on 26.07.2023, this Court heard the counsel for the parties to the Special Leave Petition. But having regard to the peculiar nature of the impugned order, kept this matter back for orders to be pronounced today.”
Needless to say, the Bench then states in para 2 that, “Special leave granted. The appellant is aggrieved by the denial of anticipatory bail and a further direction to surrender before the Court and seek regular bail.”
To put things in perspective, the Bench envisages in para 3 that, “The necessary facts are that the appellant and the second respondent (hereafter referred to as “husband and wife”, respectively) were married on 5.11.2020. The appellant alleges that the respondent-wife was not happy and her father used to interfere and pressurize him and his family. This led to complaints lodged against the wife’s family for threatening the appellant’s family. It is alleged that on 02.04.2022, without complying with the directions of Five Judge Bench in Lalita Kumari vs. Govt. of UP & Ors., [2013] 14 SCR 713, the concerned Police Station Gumla Mahila P.S. in Case No. 07/2022., registered the First Information Report (FIR) against the appellant and his brother and others, complaining of commission of offences under Section 498A, 323/504/506 of the Indian Penal Code, 1860 (IPC) and Section 3 & 4 of the Dowry Prohibition Act.”
As it turned out, the Bench then discloses in para 4 that, “The appellant apprehended arrest and applied for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) before the Sessions Judge, Gumla, Jharkhand; that application was dismissed on 28.06.2022. The appellant then approached the Jharkhand High Court seeking anticipatory bail on 05.07.2022. All this while, the appellant cooperated with the investigation, and after its completion, a charge-sheet was filed before the Sessions Judge.”
Briefly stated, the Bench then enunciates in para 5 that, “Cognizance was taken on 01.10.2022 by the Sessions Court. The Sessions Court noted in this order that on 08.08.2022, the High Court had protected the appellant with the interim order directing that he may not be arrested. When the application was heard by the High Court next on 18.01.2023, without adverting, the pending anticipatory bail was rejected, and the High Court went on to direct the appellant to surrender before the competent Court and seek regular bail.”
It would be germane to note that the Bench then underscores in para 9 stating that, “This court has emphasised the values of personal liberty in the context of applying discretion to grant bail. It has been ruled, in a long line of cases that ordinarily bail ought to be granted and that in serious cases – which are specified in the provisions of the CrPC (Section 437) which involve allegations relating to offences carrying long sentences or other special offences, the court should be circumspect and careful in exercising discretion. The paramount considerations in cases where bail or anticipatory bail is claimed are the nature and gravity of the offence, the propensity or ability of the accused to influence evidence during investigation or interfere with the trial process by threatening or otherwise trying to influence the witnesses; the likelihood of the accused to flee from justice and other such considerations. During the trial, the court is always in control of the proceedings, and it is open for it to impose any condition which it deems necessary to ensure the accused’s presence and participation in the trial. The court must, in every case, be guided by these overarching principles.”
Most significantly, the Bench then mandates in para 12 holding that, “In the present case, this Court is of the opinion that there are no startling features or elements that stand out or any exceptional fact disentitling the appellant to the grant of anticipatory bail. What is important is not that the matrimonial relationship soured almost before the couple could even settle down but whether allegations levelled against the appellant are true or partly true at this stage, which at best would be matters of conjecture, at least for this Court. However, what is a matter of record is that the time when the anticipatory bail was pending can be divided into two parts – firstly, when there was no protection afforded to him through any interim order (between April 2022 and 08.08.2022). Secondly, it was on 08.08.2022 that the High Court granted an order effectively directing the police not to arrest him during the pendency of his application under Section 438 of the CrPC. Significantly, the investigation was completed, and chargesheet was filed after 08.08.2022, and in fact cognizance was taken on 01.10.2022 by the Sessions Judge. These factors were of importance, and though the High Court has noticed the factors but interpreted them in an entirely different light. What appears from the record is that the appellant cooperated with the investigation both before 08.08.2022, when no protection was granted to him and after 08.08.2022, when he enjoyed protection till the filing of the chargesheet and the cognizance thereof on 01.10.2022. Thus, once the chargesheet was filed and there was no impediment, at least on the part of the accused, the court having regard to the nature of the offences, the allegations and the maximum sentence of the offences they were likely to carry, ought to have granted the bail as a matter of course. However, the court did not do so but mechanically rejected and, virtually, to rub salt in the wound directed the appellant to surrender and seek regular bail before the Trial Court. Therefore, in the opinion of this court, the High Court fell into error in adopting such a casual approach. The impugned order of rejecting the bail and directing the appellant, to surrender and later seek bail, therefore, cannot stand, and is hereby set aside. Before parting, the court would direct all the courts ceased of proceedings to strictly follow the law laid down in Arnesh Kumar (supra) and reiterate the directions contained thereunder, as well as other directions:
“I. 11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to, ensure what we have observed above, we give the following directions:
11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;
11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
11.3. The police officer- shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
11.4. The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;
11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.
11.8. Authorizing detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
12. We hasten to add that the directions aforesaid shall not only apply to the case under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a terms which may be less than seven years or which may extend to seven years, whether with or without fine.”
II. The High Court shall frame the above directions in the form of notifications and guidelines to be followed by the Sessions courts and all other and criminal courts dealing with various offences.
III. Likewise, the Director General of Police in all States shall ensure that strict instructions in terms of above directions are issued. Both the High Courts and the DGP’s of all States shall ensure that such guidelines and Directives/Departmental Circulars are issued for guidance of all lower courts and police authorities in each State within eight weeks from today.
IV. Affidavits of compliance shall be filed before this court within ten weeks by all the states and High Courts, through their Registrars.”
Finally, the Bench concludes by holding in para 13 that, “The appeal is accordingly allowed in the above terms. The appellant is directed to be enlarged on bail subject to such terms and conditions that the Trial Court may impose. The High Courts and the Police Authorities in all States are required to comply with the above directions in the manner spelt out in the para above, within the time frame mentioned.”
All told, the Apex Court has laid down in no uncertain terms that the landmark directions that were issued in Arnesh Kumar guidelines on arrest must be strictly implemented within the definite time frame as mentioned above. The Apex Court has also directed the High Courts and DGPs of the States to ensure strict compliance of these guidelines within the time limit as specified above. This will definitely go a long way in primarily ensuring that a person is not arbitrarily arrested without any prima facie ground as we see many times happening most deplorably especially in the cases pertaining to Section 498-A of the IPC! There can be just no denying it!
