Various remedies are available to protect the liberty of a person who has not been arrested during investigation but is fearful of being taken into custody by the court upon his first appearance. This article discusses s. 205, anticipatory bail, s. 88, and regular bails as the remedies.
Individual liberty is paramount. However, a person may be deprived of such freedom and liberty when he is accused of having committed a crime and his custody is thought fit by the agency investigating such crime or by the jurisdictional court. A balance of convenience has to be nonetheless drawn up between the two aspects – the person's liberty and the necessity of custody. It often happens that the investigation agency may find the person guilty of having committed the crime, but still doesn't feel the need to arrest the person – such person may have well cooperated during the investigation and there may be no apprehension that he would not attend trial.
The investigation agency may, thus, file its chargesheet (collating all evidence and forming the agency's opinion on the commission of the crime) in the court, without arresting the person. Here's where the confusion starts. The court will start its proceedings and require the person to be present in the court, by issuing process (summons or warrant). Now, is the custody of the person required to be taken by the court when he attends? Because of the various doubts that surround this question, the accused person may resort to various remedies available under law to protect his liberty. This article discusses the various remedies available to such an accused person who has not been arrested by the investigation agency, but anticipates being taken into custody by the court upon his appearance in such court.
II. Genesis of the issue and background
Reactive behavior like running away or absconding from investigation, attempting to tamper evidence or influence witnesses related to the investigation, or doing acts which would sabotage the overall case, are generally seen while the investigation is underway and not after it has been completed and chargesheet has been filed. Thus, ideally, as any layman to criminal procedure would also speculate, there should be no need for the court to take a person into custody if the investigation agency itself hasn't felt the need to do so.
The confusion starts from a misinterpretation and misapplication of a statutory provision in the Code of Criminal Procedure, 1973 ('CrPC') – section 170. The section reads as under:
"if ... it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial ..."
In other words, if upon having conducted the investigation, the agency feels that there is sufficient evidence against the person, it shall forward the person under custody to the court and file the chargesheet (police report). Various practices have emerged around this provision in recent times, based on the following interpretations:
- The person has to be necessarily taken into custody;
- The chargesheet cannot be filed unless the person is taken into custody;
- If the person is not present in the court, the chargesheet may be taken on record but the person would be taken into custody the first time he appears in the court.
The underlying philosophy, however, has been missed – that the criminal procedural law just wishes to ensure that all evidence, including the chargesheet, should be taken on record by the court in the presence of the accused person. This philosophy is also embodied in other provisions of the CrPC such as section 273 which states that all evidence shall be taken by the court in the presence of the accused.
At this juncture, a laudable decision of the Supreme Court is noteworthy. In Siddharth v State of UP (2022) 1 SCC 676, the court held that "the word 'custody' appearing in Section 170 CrPC does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the investigating officer before the court while filing the chargesheet". Consequently, it stated that there is no need for any arrest of the accused while taking cognizance under section 170 of the code.
III. Remedies or recourses available to the accused
Now, in this background, let us consider the following remedies available to an accused person who has not been arrested during investigation, and chargesheet has been filed naming him as an accused, and such person fears being taken into custody by the court upon his appearance:
(a) Filing exemption from personal appearance u/s 205 of CrPC
(b) Filing anticipatory bail application u/s 438 of CrPC
(c) Furnishing bond u/s 88 of CrPC
(d) Appearing before the court and filing regular bail
(A) Filing exemption from personal appearance u/s 205 of CrPC
Section 205 of the CrPC provides for exemption from personal attendance in the court to any person who's accused and hence required by the court to be present during each day of the proceeding. The section states that "Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader".
Therefore, if after taking cognizance of the offence through the chargesheet, the court issues a summons to the accused person for personally attending the court, such accused person can make the application to the court to permit him to appear through his pleader / lawyer. As the court in various cases has observed that the benefit of section 205 exemption from appearance can be given to the accused even at first appearance through counsel. Moreover, the exemption may be granted at any stage of the proceeding – i.e., at the stage of issuance of summons, or at any subsequent stage.
However, it may be noted that the court will allow the application under section 205 only for reasonable grounds such as that the Petitioners are holding very responsible posts and it would be inconvenient for them to appear in person in the Court on every date or the applicant is a daily wage earner.
The requirement of personally attending each and every court hearing is rooted in section 273 of the CrPC which states that all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused – this is a protective measure and prevents any proceeding or evidence taking place in the absence of the accused person or behind his back, and is based on the principle of natural justice ensuring a fair trial. Naturally, in case an exemption is sought under section 205 from personally attending the court, an undertaking is to be given by the accused person that he shall not raise any objection subsequently on the admissibility of any evidence taken in his absence if his lawyer was present in such proceeding.
(B) Filing anticipatory bail application u/s 438 of CrPC
The accused person may also apply for anticipatory bail under section 438 of the CrPC, to the Sessions Court or the jurisdictional High Court – both these courts have concurrent jurisdiction on the subject matter of anticipatory bail and the accused person may choose to apply for anticipatory bail in either of these courts. An anticipatory bail may be granted by the court in any of the stages of criminal proceeding: (i) before the filing of the FIR, or (ii) after filing of the FIR and during the pendency of the investigation, or even (iii) after the filing of the chargesheet.
In the scenario being discussed in the present article, where the chargesheet has been filed and the accused person has not been arrested during investigation, whether an anticipatory bail is maintainable was answered in the affirmative by the Supreme Court in Bharat Chaudhry v State of Bihar (2003) 8 SCC 77. The court held that the fact that the chargesheet has been filed or that cognizance has been taken would not by itself prevent the grant of anticipatory bail.
Now, recently, with the decision of the Supreme Court in Siddharth v State of UP (2022) 1 SCC 676, the position has been cemented even more firmly – in such case, the court held that there is no need for an accused person to be taken into judicial custody while submission of chargesheet – a practice that is still regularly followed across the country. The court held that 'custody' as mentioned in section 170 of CrPC does not mean only police custody or judicial custody, it would mean presentation of the accused in the court. Citing the same decision, the apex court in the case of Aman Preet Singh v CBI 2021 SCC OnLine SC 941 granted the anticipatory bail to the accused though he was not arrested during the investigation but was named as an accused in chargesheet.
Similar decisions have been given by the Allahabad high court in the cases of Mahendra Kumar v State of UP delivered on 7th May 2022 and Chandra Pal Singh v State of UP delivered on 19th May 2022 where citing the Siddharth case (supra), the court granted the anticipatory bail to accused.
(C) Furnishing bond u/s 88 of CrPC
Another recourse available to an accused person not arrested during investigation is provided under section 88 of the CrPC. The section provides that when any person for whose appearance the court is empowered to issue summons or warrant is present in such court, the court may require such person to execute a bond, with or without sureties, for his appearance in the court. This provision finds its place in the procedural law to ensure the presence of the accused person in the court at various stages of the criminal proceedings against him.
Recently, in a decision of the Supreme Court (refer Satender Kumar Antil v CBI 2022 SCC OnLine SC 825), the court clarified that in a case where the prosecution does not require custody of the accused, there is no need for an arrest when a case is sent to the magistrate under section 170. There is not even a need for filing a bail application, as the accused is merely forwarded to the court for framing of charges and issuance of process for trial. The court can fall back upon section 88 of CrPC and complete the formalities required to secure the presence of the person in the court.
It is to be, however, noted that the power under section 88 is discretionary, and the court may choose to decline to exercise it. For instance, if the person has been presented to the court under custody or because of a warrant having been issued, or if the case requires the accused to be remanded to judicial custody because of any reason, the court would not accept bond and release the person (refer Pankaj Jain v Union of India (2018) 5 SCC 743).
(D) Appearing before the court and filing regular bail
The last resort, indeed, is for the accused to present himself and seek regular bail from the court. The accused person would be needed to be taken into custody (maybe only symbolic, without handcuffing or exercise of any force) and thereafter he may apply for bail. The court may:
(i) instantly decide and grant bail to the person – in this case the person does not need to go to jail / judicial custody; or
(ii) subsequently decide the bail application, but grant interim bail to the person instantly – in this case the person does not go into judicial custody that day, but his fate would depend on the ultimate decision of the court regarding the bail application; or
(iii) reject the bail application instantly – in this case, the person would have to go into judicial custody that day itself.
In order to bring clarity to the above procedure and lay down guidelines, the Supreme Court in the last one year, has given a series of three decisions attempting to answer the critical query:
- Satender Kumar Antil v CBI (2021) 10 SCC 773, dated 07.10.2021
- Satender Kumar Antil v CBI 2021 SCC OnLine SC 3302, dated 16.12.2021
- Satender Kumar Antil v CBI 2022 SCC OnLine SC 825, dated 11.07.2022
Through these three decisions, the Supreme Court has 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 guidelines are summarized as under:
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, ordinary summons are to be first issued and appearance through lawyer should be permitted. Thereafter, bailable warrant to be issued, followed by non-bailable warrant in case of non-appearance. Upon appearance of the person, bail application should be decided by the court without taking him in physical custody. Interim bail should be granted till such bail application is not 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. Such 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.
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. The general principle governing delay would apply to these categories and the rigors contained in the special Act regarding bail would not apply if substantial delay was being caused.
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. 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.
Through these guidelines, the Apex court intends to ease the process of bail and enlarge its scope. 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.
The anxiety that surrounds an accused person who has not been arrested during investigation but who has been named as an accused, and then has been issued summons or warrant to appear in the court, is tremendous. The above remedies or recourses are certainly available to such a person, but with the condition or caveat that the overarching reason always is the seriousness of the case and allegations. Criminal trials are always to be treated with utmost seriousness and any of the above remedies does not always ensure that coercive action is prevented forever.
Originally Published 16 December 2022
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.