Various treatments can be found to guard the freedom of
an individual who has not been arrested throughout investigation however is
petrified of being taken into custody by the court docket upon his first
look. This article discusses s. 205, anticipatory bail, s.
88, and common bails because the treatments.

I. Introduction

Individual liberty is paramount. However, an individual could also be
disadvantaged of such freedom and liberty when he’s accused of getting
dedicated a criminal offense and his custody is assumed match by the company
investigating such crime or by the jurisdictional court docket. A steadiness
of comfort needs to be nonetheless drawn up between the 2
elements – the individual’s liberty and the need of
custody. It usually occurs that the investigation company might discover
the individual responsible of getting dedicated the crime, however nonetheless
would not really feel the necessity to arrest the individual – such individual
might have effectively cooperated throughout the investigation and there could also be
no apprehension that he wouldn’t attend trial.

The investigation company might, thus, file its chargesheet
(collating all proof and forming the company’s opinion on the
fee of the crime) within the court docket, with out arresting the
individual. Here’s the place the confusion begins. The court docket will begin
its proceedings and require the individual to be current within the court docket,
by issuing course of (summons or warrant). Now, is the custody of the
individual required to be taken by the court docket when he attends? Because
of the assorted doubts that encompass this query, the accused
individual might resort to numerous treatments obtainable below legislation to
defend his liberty. This article discusses the assorted treatments
obtainable to such an accused one who has not been arrested by
the investigation company, however anticipates being taken into custody
by the court docket upon his look in such court docket.

II. Genesis of the problem and background

Reactive habits like working away or absconding from
investigation, trying to tamper proof or affect witnesses
associated to the investigation, or doing acts which might sabotage
the general case, are usually seen whereas the investigation is
underway and never after it has been accomplished and chargesheet has
been filed. Thus, ideally, as any layman to felony process
would additionally speculate, there must be no want for the court docket to take
an individual into custody if the investigation company itself hasn’t
felt the necessity to take action.

The confusion begins from a misinterpretation and misapplication
of a statutory provision within the Code of Criminal Procedure, 1973
(‘CrPC‘) – part 170. The part
reads as below:

“if … it seems to the officer accountable for the
police station that there’s adequate proof or cheap
floor as aforesaid, such officer shall ahead the accused
below custody to a Magistrate empowered to take cognizance of the
offence upon a police report and to strive the accused or
commit him for trial …”

In different phrases, if upon having performed the investigation, the
company feels that there’s adequate proof in opposition to the individual,
it shall ahead the individual below custody to the court docket and file the
chargesheet (police report). Various practices have emerged round
this provision in current instances, based mostly on the next
interpretations:

• The individual needs to be essentially taken into custody;




• The chargesheet can’t be filed except the individual is taken into
  custody;




• If the individual just isn’t current within the court docket, the chargesheet might
  be taken on document however the individual can be taken into custody the
  first time he seems within the court docket.

The underlying philosophy, nonetheless, has been missed – that
the felony procedural legislation simply needs to make sure that all
proof, together with the chargesheet, must be taken on document by
the court docket within the presence of the accused individual. This philosophy is
additionally embodied in different provisions of the CrPC corresponding to part 273
which states that every one proof shall be taken by the court docket within the
presence of the accused.

At this juncture, a laudable resolution of the Supreme Court is
noteworthy. In Siddharth v State of UP (2022) 1 SCC 676,
the court docket held that “the phrase ‘custody’ showing in
Section 170 CrPC doesn’t ponder both police or judicial
custody however it merely connotes the presentation of the accused by
the investigating officer earlier than the court docket whereas submitting the
chargesheet”. Consequently, it acknowledged that there isn’t any want
for any arrest of the accused whereas taking cognizance below part
170 of the code.

III. Remedies or recourses obtainable to the
accused

Now, on this background, allow us to contemplate the next treatments
obtainable to an accused one who has not been arrested throughout
investigation, and chargesheet has been filed naming him as an
accused, and such individual fears being taken into custody by the
court docket upon his look:

(a) Filing exemption from private look u/s 205 of
CrPC

(b) Filing anticipatory bail utility u/s 438 of CrPC

(c) Furnishing bond u/s 88 of CrPC

(d) Appearing earlier than the court docket and submitting common bail

(A) Filing exemption from private look u/s
205 of CrPC

Section 205 of the CrPC gives for exemption from private
attendance within the court docket to any one who’s accused and therefore
required by the court docket to be current throughout every day of the
continuing. The part states that “Whenever a Magistrate
points a summons, he might, if he sees purpose so to do, dispense with
the non-public attendance of the accused and allow him to look by
his pleader”.

Therefore, if after taking cognizance of the offence by way of the
chargesheet, the court docket points a summons to the accused individual for
personally attending the court docket, such accused individual could make the
utility to the court docket to allow him to look by way of his
pleader / lawyer. As the court docket in varied circumstances has noticed that
the advantage of part 205 exemption from look will be given
to the accused even at first look by way of counsel. Moreover,
the exemption could also be granted at any stage of the continuing –
i.e., on the stage of issuance of summons, or at any subsequent
stage.

However, it could be famous that the court docket will permit the
utility below part 205 just for cheap grounds corresponding to
that the Petitioners are holding very accountable posts and it
can be inconvenient for them to look in individual within the Court on
each date or the applicant is a each day wage earner.

The requirement of personally attending each court docket
listening to is rooted in part 273 of the CrPC which states that every one
proof taken in the middle of the trial or different continuing shall
be taken within the presence of the accused – this can be a
protecting measure and prevents any continuing or proof taking
place within the absence of the accused individual or behind his again, and
relies on the precept of pure justice guaranteeing a good trial.
Naturally, in case an exemption is sought below part 205 from
personally attending the court docket, an enterprise is to be given by
the accused individual that he shall not increase any objection
subsequently on the admissibility of any proof taken in his
absence if his lawyer was current in such continuing.

(B) Filing anticipatory bail utility u/s 438 of
CrPC

The accused individual might also apply for anticipatory bail below
part 438 of the CrPC, to the Sessions Court or the
jurisdictional High Court – each these courts have concurrent
jurisdiction on the subject material of anticipatory bail and the
accused individual might select to use for anticipatory bail in both
of those courts. An anticipatory bail could also be granted by the court docket
in any of the levels of felony continuing: (i) earlier than the submitting
of the FIR, or (ii) after submitting of the FIR and throughout the pendency
of the investigation, and even (iii) after the submitting of the
chargesheet.

In the state of affairs being mentioned within the current article, the place
the chargesheet has been filed and the accused individual has not been
arrested throughout investigation, whether or not an anticipatory bail is
maintainable was answered within the affirmative by the Supreme Court
in Bharat Chaudhry v State of Bihar (2003) 8 SCC 77. The
court docket held that the truth that the chargesheet has been filed or
that cognizance has been taken wouldn’t by itself forestall the
grant of anticipatory bail.

Now, just lately, with the choice of the Supreme Court in
Siddharth v State of UP (2022) 1 SCC 676, the place has
been cemented much more firmly – in such case, the court docket held
that there isn’t any want for an accused individual to be taken into
judicial custody whereas submission of chargesheet – a follow
that’s nonetheless usually adopted throughout the nation. The court docket held
that ‘custody’ as talked about in part 170 of CrPC doesn’t
imply solely police custody or judicial custody, it will imply
presentation of the accused within the court docket. Citing the identical resolution,
the apex court docket within the case of Aman Preet Singh v CBI 2021 SCC
OnLine SC 941 granted the anticipatory bail to the accused
although he was not arrested throughout the investigation however was named
as an accused in chargesheet.

Similar selections have been given by the Allahabad excessive court docket in
the circumstances of Mahendra Kumar v State of UP delivered on seventh
May 2022 and Chandra Pal Singh v State of UP delivered on
nineteenth May 2022 the place citing the Siddharth case (supra), the
court docket granted the anticipatory bail to accused.

(C) Furnishing bond u/s 88 of CrPC

Another recourse obtainable to an accused individual not arrested
throughout investigation is supplied below part 88 of the CrPC. The
part gives that when any individual for whose look the
court docket is empowered to situation summons or warrant is current in such
court docket, the court docket might require such individual to execute a bond, with or
with out sureties, for his look within the court docket. This provision
finds its place within the procedural legislation to make sure the presence of the
accused individual within the court docket at varied levels of the felony
proceedings in opposition to him.

Recently, in a call of the Supreme Court (refer Satender
Kumar Antil v CBI 2022 SCC OnLine SC 825), the court docket clarified
that in a case the place the prosecution doesn’t require custody of
the accused, there isn’t any want for an arrest when a case is shipped to
the Justice of the Peace below part 170. There just isn’t even a necessity for
submitting a bail utility, because the accused is merely forwarded to
the court docket for framing of fees and issuance of course of for trial.
The court docket can fall again upon part 88 of CrPC and full the
formalities required to safe the presence of the individual within the
court docket.

It is to be, nonetheless, famous that the facility below part 88 is
discretionary, and the court docket might select to say no to train it.
For occasion, if the individual has been offered to the court docket below
custody or due to a warrant having been issued, or if the case
requires the accused to be remanded to judicial custody due to
any purpose, the court docket wouldn’t settle for bond and launch the individual
(refer Pankaj Jain v Union of India (2018) 5 SCC 743).

(D) Appearing earlier than the court docket and submitting common
bail

The final resort, certainly, is for the accused to current himself
and search common bail from the court docket. The accused individual can be
wanted to be taken into custody (perhaps solely symbolic, with out
handcuffing or train of any power) and thereafter he might apply
for bail. The court docket might:

(i) immediately resolve and grant bail to the individual – in
this case the individual doesn’t have to go to jail / judicial
custody; or

(ii) subsequently resolve the bail utility, however grant interim
bail to the individual immediately – on this case the individual does
not go into judicial custody that day, however his destiny would rely upon
the last word resolution of the court docket relating to the bail utility;
or

(iii) reject the bail utility immediately – on this
case, the individual must go into judicial custody that day
itself.

In order to carry readability to the above process and lay down
pointers, the Supreme Court within the final one yr, has given a
collection of three selections trying to reply the important
question:

• 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 selections, the Supreme Court has categorized
varied offences into 4 (4) classes and laid down sure
pointers for the process to be adopted in circumstances which meet the
pre-requisite situations that (i) the individual shouldn’t have been
arrested throughout the investigation, and (ii) the individual ought to have
co-operated all through the investigation together with showing earlier than
the investigating officer each time known as for. The pointers are
summarized as below:

Category A: Offences punishable with imprisonment of seven
years or much less not falling in classes B and D: After the
submitting of the cost sheet/criticism and taking cognizance of the
identical, unusual summons are to be first issued and look
by way of lawyer must be permitted. Thereafter, bailable warrant to
be issued, adopted by non-bailable warrant in case of
non-appearance. Upon look of the individual, bail utility
must be determined by the court docket with out taking him in bodily
custody. Interim bail must be granted until such bail utility
just isn’t determined.

Category B: Offences punishable with dying, imprisonment
for all times, or imprisonment for greater than 7 years: On the
look of the accused, bail utility to be selected
deserves. Such circumstances must be handled on a case-to-case
foundation however holding in view the final ideas of legislation and the
provisions.

Category C: Offences punishable below particular Acts
containing stringent provisions for bail like NDPS Act [S. 37],
PMLA [S. 45], UAPA [S. 43D (5)], Companies Act [S. 212(6)],
and so on.: On the looks of the accused, bail utility
to be selected deserves, together with the compliance of the
provisions of bail contained within the particular Act. The common
precept governing delay would apply to those classes and the
rigors contained within the particular Act relating to bail wouldn’t apply
if substantial delay was being brought about.

Category D: Economic offences not coated by particular
Acts: On the looks of the accused in Court pursuant
to course of issued bail utility to be selected deserves.
Further, the seriousness of the cost and the severity of the
punishment imposed by the statute also needs to be thought-about. It is
not advisable on the a part of the court docket to categorize all of the
offences into one group (i.e., financial offences) and deny bail on
that foundation.

Through these pointers, the Apex court docket intends to ease the
technique of bail and enlarge its scope. In a case the place the
prosecution doesn’t require the custody of the accused, there may be
no want for an arrest below part 170 of CrPC; there may be not even
a necessity for submitting a bail utility because the accused is merely being
forwarded to the court docket for framing of fees and issuance of
course of for trial.

IV. Conclusion

The nervousness that surrounds an accused one who has not been
arrested throughout investigation however who has been named as an accused,
after which has been issued summons or warrant to look within the court docket,
is great. The above treatments or recourses are actually
obtainable to such an individual, however with the situation or caveat that
the overarching purpose at all times is the seriousness of the case and
allegations. Criminal trials are at all times to be handled with utmost
seriousness and any of the above treatments doesn’t at all times guarantee
that coercive motion is prevented perpetually.

Originally Published 16 December 2022

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