Additional Relief In An Application u/s 438 CrPC Must Be Narrowly Tailored Taking Into Consideration Concerns Of Investigating Authority: Supreme Court

Supreme Court, in its Judgment dated 28.05.2021, clarified that proviso to Section 438(1) CrPC does not act as a bar to grant additional protection to the applicant, however, such discretionary power cannot be exercised in an uncalculated manner.

A Full Bench of Chief Justice NV Ramana, Justice Surya Kant and Justice Aniruddha Bose, while allowing the present appeal, said, “The Court must take into account the statutory scheme under Section 438 CrPC, particularly, the proviso to Section 438(1) CrPC, and balance the concerns of the investigating agency, complainant and the society at large with the concerns/interest of the applicant. Therefore, such an order must necessarily be narrowly tailored to protect the interests of the applicant while taking into consideration the concerns of the investigating authority. Such an order must be a reasoned one. The impugned orders passed by the High Court, in the present appeals, do not meet any of the standards as laid out above.”

Reasons enumerated by the bench in pursuance of its observation;

1. After dismissal of the Anticipatory Bail Application, Court has granted the impugned relief to the respondents, without assigning any reasons.
2. In granting relief for a period of 90 days, the Court has seemingly not considered the concerns of the Investigating agency, complainant or the proviso under Section 438(1) CrPC, which necessitates that the Court pass such an exceptional discretionary protection for the shortest duration that is reasonably required.

“The impugned orders therefore do not withstand legal scrutiny. The resultant effect of the High Court’s orders is that neither are the respondents found entitled to pre-arrest bail, nor can they be arrested for a long duration. During the said duration they can roam freely without being apprehensive of coercive action…Such a direction by the High Court exceeds its judicial discretion and amounts to judicial largesse, which the Courts do not possess”, added the Court.

Question to be determined in the present appeal was whether the High Court, while dismissing an application seeking Anticipatory Bail, could have granted them protection from arrest or not and what are the determinants of the same.

Reliance was placed on landmark cases of Sushila Aggarwal v. State, (2020) 5 SCC 1 and Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565.

In both the impugned orders against which the appeal was preferred, Allahabad High Court while dismissing the Anticipatory Bail Application of the respondents-accused, granted 90 days to surrender before the Trial Court to seek regular bail and also granted protection from any coercive action for the said period.

Case Title: Nathu Singh v. State of UP | CRIMINAL APPEAL No. 522 of 2021