SPECIAL LEAVE PETITION (CRL.) NO.5191 OF 2021

SUPREME COURT OF INDIA

Satender Kumar Antil v CBI

SPECIAL LEAVE PETITION (CRL.) NO.5191 OF 2021

Taking note of the continuous supply of cases seeking bail after filing of the final report on a wrong interpretation of Section 170 of the Code of Criminal Procedure (hereinafter referred to as “the Code” for short), an endeavor was made by the Hon’ble Supreme Court to categorize the types of offenses to be used as guidelines for the future and certain provisions were discussed viz. – Section 41, 41A, 60, 87, 88, 167(2), 170, 204, 209, 309, 389, 436A, 437, 439, 440CrPC and many others and consequently, following guidelines were issued:

Categories/Types of Offences

1. Offences punishable with imprisonment of 7 years or less not falling in category B & D.
2. Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.
3. Offences punishable under Special Acts 3 containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc.
4. Economic offences not covered by Special Acts.

REQUISITE CONDITIONS

1. Not arrested during investigation.
2. Cooperated throughout in the investigation including appearing before Investigating Officer whenever called. (No need to forward such an accused along with the chargesheet (Siddharth Vs. State of UP, 2021 SCC online SC 615)

CATEGORY A

(This category deals with both police cases and complaint cases.)

After filing of chargesheet/complaint taking of cognizance

1. Ordinary summons at the 1st instance/including permitting appearance through Lawyer.
   1. If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.
   1. NBW on failure to failure to appear despite issuance of Bailable Warrant.
   1. NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.
   1. Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided.

CATEGORY B/D

On appearance of the accused in Court pursuant to process issued bail application to be decided on merits.

CATEGORY C

1. Same as Category B & D with the additional condition of compliance of the provisions of Bail under NDPS S. 37, 45 PMLA, 212(6) Companies Act 43 d(5) of UAPA, POSCO etc.”
2. The trial Courts and the High Courts will keep in mind the aforesaid guidelines while considering bail applications.

However, there exists a caveat that where the accused have not cooperated in the investigation nor appeared before the Investigating Officers, nor answered summons when the Court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a possible recovery is needed, the aforesaid approach cannot give them benefit.

DIRECTIONS ISSUED:

Further, certain set of directions were issued by the Hon’ble Apex Court pertaining to bail and default bail.

These directions are meant for the investigating agencies and also for the courts. Accordingly, following directions, which may be subject to State amendments, were issued:

1. The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.
2. The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by the Hon’ble Supreme Court in Arnesh Kumar v State of Bihar (2014) 8 SCC 273. Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.
3. The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail.
4. All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2017 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020, to comply with the mandate of Section 41A of the Code.
5. There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code. 83 f) There needs to be a strict compliance of the mandate laid down in the judgment of the Hon’ble Supreme Court in Siddharth Vs. State of UP, 2021 SCC online SC 615 wherein it was observed that there is no need to forward such an accused along with the chargesheet who is not arrested during investigation and cooperated throughout in the investigation, including appearing before Investigating Officer whenever called.
6. The State and Central Governments will have to comply with the directions issued by the Hon’ble Supreme Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.
7. The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release.
8. While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind.
9. An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by the Hon’ble Supreme Court in Bhim Singh v. Union of India, (2015) 13 SCC 605, followed by appropriate orders.
10. Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.
11. All State Governments, Union Territories and High Courts are directed to file affidavits/ status reports within a period of four months