Case Title: Satendra Kumar Antil v. CBI, (2022) 10 SSCC 51.

Bench: J. Sanjay Kishan Kaul and J. M.M. Sundresh

Introduction

Satendra Kumar Antil v. Central Bureau of Investigation(2022) is a landmark judgment on bail and pre-trial arrest. Although pronounced by a two-judge bench, the depth of jurisprudence and the extensive references to precedent it offers are immense. It serves as a guiding light for anyone working on matters related to bail. One could even call it a modern scripture guiding bail jurisprudence in India. In this article, I will explain why such a claim is not an exaggeration. We will explore the impact of the Antil judgment on bail jurisprudence and examine how the directions framed in this decision affect both the rights of individuals and the duties of the State.

This article follows the structure adopted in the judgment to provide readers with a coherent and better reading experience. The author’s analysis and commentary will be presented in a separate section following the discussion of the judgment.

Division of Offences into four categories

In this case, the Supreme Court divided offences into four categories, providing a different procedure for each category. These categories were:

Category A: 7 Years or less imprisonment and not falling in Categories B & D.

Category B: Death, Imprisonment for life, or more than 7 years imprisonment.

Category C: Special Act NDPS, UAPA, Companies Act, PMLA, etc.

Category D: Economic Offences not covered by Special Acts.

For all categories, there were two requisite conditions: 1) Person is not arrested during investigation. 2) Cooperated throughout in the investigation including appearing before investigating officer whenever called.

Now, for each category the procedure were enshrined by Supreme Court:

For Category A

1. Ordinary summons at the 1^st instance/including permitting appearance through lawyer.
2. If such an accused does not appear despite service of summons, then bailable warrant for physical appearance may be issued.
3. NBW on failure to appear despite issuance of bailable warrant.
4. NBW may be cancelled or converted into a bailable warrant/summons without insisting physical appearance of the 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 physciall on the next date/s of hearing.
5. Bail applications of such accused on appearance may be decided without the accused being taken into custody or by granting interim bail till the  bail application is decided.

For Category B & D:

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

For Category C:

Same as Categories B and D with the additional condition of compliance of the provisions of Bail under NDPS (Section 37), Section 45 of the PMLA, Section 212(6) of the Companies Act, Section 43-D(5) of the UAPA, POSCO Act, etc.

(Para 2)

After categorising the types of offences, the Court examined relevant precedents to support its reasoning. The judgment addresses several key areas in significant detail, including the definitions of ‘bail’ and ‘trial,’ the presumption of innocence, provisions related to arrest under Section 41 of the CrPC, issuance of notice under Section 41A, and procedures under Section 60A, among others. Numerous other provisions are also discussed, all of which contribute to making this a judgment of substantial legal influence, justifying its description as a landmark ruling.

Discussion of key concepts in the Judgment

The Court took cognizance of the prevailing situation in the country, particularly the overcrowding of jails with undertrial prisoners. It observed that in a democracy, the State must never create the impression of functioning as a police state, as the two concepts are fundamentally opposed. (Para 6)

Trial

Court defined trial for the purpose of enlargement on bail to include, the stage of investigation and thereafter. Similarly, an appeal or revision shall also be construed as a facet of trial when it comes to the consideration of bail on suspension of sentence. (Para 7)

Bail

Bail is also not defined in the Code, though is used very often. A bail is nothing but a surety inclusive of a personal bond from the accused. It means the release of an accused person either by the orders of the court or by the police or by the investigating agency. (Para 9)

Bail is the rule

The principle that bail is the rule and jail is the exception has been well recognized through the repetitive pronouncements of this Court. This again is on the touchstone of Article 21 of the Constitution of India as held in Nikesh Tarachand Shah v. UOI.

The object of the bail is to secure appearance of accused to the Cour facing trial.[1] Further, the object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required that an accused person will stand his trial when called upon.[2] (Paras 12-13).

Presumption of Innocence

The presumption of innocence is an internationally recognized legal principle, enshrined in Article 14(2) of the International Covenant on Civil and Political Rights, 1966, and Article 11 of the Universal Declaration of Human Rights, 1948. The Supreme Court of Canada, in R. v. Antic (2017), held that the right not to be denied reasonable bail without just cause is a fundamental element of an enlightened criminal justice system. This right reinforces the presumption of innocence at the pre-trial stage and serves as a safeguard for the personal liberty of accused persons. Notably, this right encompasses two key aspects: first, bail must not be denied without just cause; and second, the conditions imposed must be reasonable.

Provisions of Code of Criminal Procedure, 1973

In this case, the Hon’ble Supreme Court examined a wide range of provisions under the Code of Criminal Procedure, including Sections 41, 41A, 60A, 87, 88, 167, 170, 204, 209, 309, 389, 437, 439, and 440. The following discussion analyses the Court’s interpretation of each of these provisions in the context of bail jurisprudence.

Section 41, 41-A and 60-A of CrPC

Section 41 of the Code of Criminal Procedure deals with arrest in cognizable offences without a warrant. It mandates that a police officer must record the reasons for making such an arrest in writing. This duty is not discretionary and must be strictly complied with. Any non-compliance with this requirement shall operate in favour of the person suspected of the offence.

The Hon’ble Supreme Court referred to the landmark judgment of Arnesh Kumar v. State of Bihar,[3] wherein it was held that while making an arrest under Section 41 of the Code of Criminal Procedure, the police must record in writing the specific reasons justifying the arrest. The Court further emphasised that the power exercised under Section 167 CrPC should not be invoked in a routine, casual, or cavalier manner.

The Magistrate must independently record their satisfaction, which cannot rest solely on the ipse dixit of the police officer. Additionally, the mechanical reproduction of the grounds mentioned in Section 41 CrPC in the case diary—without due application of mind—should be firmly discouraged and discontinued. This direction was issued to apply in all cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine.

The Hon’ble Supreme Court in the present case stated that follow the Arnesh Judgment in letter and spirit by the investigating and prosecuting agencies. The court observed that despite the direction regarding the issuance of notice under Section 41-A of the code, no concrete steps have been taken to comply with it.

Moving to section 41A of CrPC, it deal with serving of notice by police where arrest is not required under Section 41. The compliance with notice is important for the person as it protects him from getting arrested. However, police can arrest with recorded reasons as held in Arnesh.

With regard to these provisions court referred to two judgments, one of the Delhi High Court and another of the Jharkhand High Court, namely Rakesh Kumar v. Vijayanta Arya and Mahesh Kumar Chaudhary v. State of Jharkhand, respectively. In both these cases, the need for guidelines and effect of non-compliance were discussed.

Section 87 and 88 of the Code

Section 87 deals with the Issue of Warrant in lieu of, or in addition to, summons and Section 88 deals with the power to take bond for appearance. In Inder Mohan Goswami v. State of Uttarakhand, it was held by the Supreme Court that the Courts will have to adopt the procedure in issuing summons first, thereafter a bailable warrant, and then a non-bailable warrant may be issued. Personal Liberty is of paramount importance; therefore, we caution courts at first and second instance from issuing non-bailable warrants.

Section 167(2) of the Code

Section 167 deals with the provision of default bail when the investigation cannot be completed on time. It is another limb of Article 21 of the Constitution of India. Presumption of innocence is also inbuilt in this provision. In Rakesh Kumar Paul v. State of Assam, it was held that in matters of personal liberty and Article 21, it is not always advisable to be formalistic or technical.

Section 170 of the Code

Section 170 marginal note states, “Cases to be sent to magistrate when evidence is sufficient”. The scope of this provision is dealt with in Siddharth v. State of U.P., This is a power which is to be exercised by the court after the completion of the investigation by the agency concerned. Therefore, this is a procedural compliance from the point of view of the court alone, and thus the investigation agency has got a limited role to play. 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 of the Code.

There is not even a need for filing a bail application, as the accused is merely forwarded to the court for the framing of charges and issuance of process for trial. If the court is of the view that there is no need for any remand, then the court can fall back upon Section 88 of the Code and complete formalities required to secure the presence of the accused for the commencement of the trial. Of course, there may be a situation where a remand may be required, it is only in such cases that the accused will have to be heard.

This was stated only for persons not in custody. If the accused persons is already in the custody, for which, the bail application has to be decided on its own merits.

Section 204 and 209 of the Code

Section 204 deals with the issue of process. A case may be either a summons case or a warrant case. Section 209 deals with the commitment of case to court of session when offence is triable exclusively by it.

Section 309 of the Code

Section 309 provides power to postpone or adjourn proceedings. While considering this section, the court observed that right to a fair and speedy trial is yet another facet of Article 21. Therefore, while it is expected of the court to comply with Section 309 of Code of Criminal Procedure  to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for consideration of bail.

Precedents

Court referred to precedent laid down by Supreme Court in Hussainara Khatoon v. State of Bihar, where it was observed by the court that many people are in prison without even facing trial and after Maneka Gandhi, the pre-trial detention ensure “reasonable, just and fair” procedure.

Further, Surinder Singh v. State of Punjab was referred, wherein, it was held that speedy trial is a fundamental right enshrined under Article 21 of the Constitution of India.

Section 389 of the Code

Section 389 provides for suspension of sentence pending appeal; release of appellant on bail. In Atul Tripathi v. State of U.P., it was held that Section 439 applies in pre-conviction stage whereas section 389 applies during the post-conviction stage.

Section 436-A of the Code

Section 436-A provides for maximum period for which an undertrial prisoner can be detained. It states that if a person has been imprisoned for one-half of the maximum period of imprisonment, he should be enlarged on bail.

Section 437 of the Code

Section 437 provides when bail may be taken in case of non-bailable offence. The court also discusses power of magistrate while dealing with this provision. The Hon’ble Supreme Court referred to Ishan Vasant Deshmukh v. State of Maharashtra, wherein it was held that

“ …..The observations of the Supreme Court that generally speaking if the punishment prescribed is that of imprisonment for life or death penalty, and the offence is exclusively triable by the Court of Sessions, the Magistrate has no jurisdiction to grant bail, unless the matter is covered by the provisos attached to the Section 437 of the Code. Thus, merely because an offence is punishable with imprisonment for life, it does not follow that a Magistrate would have no jurisdiction to grant bail, unless offence is also exclusively triable by the Court of Sessions. This, implies that the Magistrate would be entitled to grant bail in cases triable by him even though punishment prescribe may extend to imprisonment for life.”

Section 439 of the Code

Section 439 provides for special power of High Court or Court of Session regarding bail.

Section 440 of the Code

Section 440 provides for the amount of bond and reduction thereof.

Categories A & B

In category A, one would expect a better exercise of discretion on the part of the court in favour of the accused. In Category B, these cases will have to be dealt with on a case-to-case basis again keeping in view the general principle of law and provision as discussed above.

Special Acts (Category C)

General principles governing delay would apply to these categories also. In UOI v. K.A. Najeeb, it was held that liberty guaranteed by part II of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. Further, in Supreme Court Legal Aid Committee v. UOI, para 15, it was held that undertrials cannot be indefinitely detained pending trial.

Further, the court clarified one aspect of the interpretation of section 170 of the Code. That is only 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. Similarly, the court stated that the existence of a pari materia or a similar provision like Section 167(2) of the Code available under the Special Act would have the same effect, entitling the accused to a default bail.

Economic Offences (Category D)

The Court stated that the position of this was already discussed in P. Chidambaram v. E.D. and reiterated the same “(para 23)  ….even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does bail jurisprudence provides so.”

Role of the Court

The conviction rate in India in criminal cases is abysmally low. It appears to us that this factor weighs on the mind of the Court while deciding bail applications in a negative sense. Debarring a person from granting bail without reasonable ground is punitive in nature. Low conviction rate should not be reason for Court to decide bail strictly, contrary to legal provisions.

Special Bail Act

 Court signifies the importance of separate Bail Act as it is available in different countries such as the UK and the USA. The Bail Act, 1976 of UK takes into consideration various factors. It is an attempt to have a comprehensive law dealing with bails by following a simple procedure.

Judgment Analysis/Conclusion

This judgment comprehensively addresses issues related to bail, personal liberty, pre-trial detention, and the constitutional imperative of safeguarding individual rights. It may rightly be regarded as a holistic pronouncement and a significant advancement in the development of bail jurisprudence. The Court brings together and consolidates various precedents previously laid down by the Supreme Court, offering a unified interpretation of the law. Notably, it takes cognizance of instances where such precedents have been disregarded and issues strict directions to ensure that State authorities adhere to them in both letter and spirit.

By categorizing offences and laying down distinct guidelines for each category, and further recommending the enactment of a special Bail Act in India, this judgment marks a significant advancement in bail jurisprudence. It may aptly be described as a modern scripture guiding bail jurisprudence in India. Furthermore, the extensive analysis of statutory provisions within the judgment helps clarify the interpretation and application of those provisions in practice.

This is a landmark judgment that will continue to guide legal professionals for years to come. Its seminal contribution lies in the structured reasoning, the emphasis on human rights, and the clear interpretation of foundational concepts such as ‘trial,’ ‘presumption of innocence,’ and ‘bail,’ among others. These elements collectively make this ruling a lasting legacy in Indian bail jurisprudence.

In conclusion, this judgment is of considerable importance to legal scholarship. Law students may explore the key concepts outlined in this ruling for further academic research. Additionally, legal researchers can analyze how this judgment could serve as a foundation for the creation of a Bail Act in India and examine its potential in securing and safeguarding human rights. The scope of research that emerges from this judgment is vast, offering rich opportunities for doctrinal, comparative, and policy-oriented studies in criminal law and constitutional rights.

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[1] Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632.

[2] Sanjay Chandra v. CBI, AIR 2012 SC 830.

[3] Arnesh Kumar v. State of Bihar (2014) 8 SCC 273.