Rahul Kumar vs Central Bureau Of Investigation Anti Corruption Branch

Neena Bansal Krishna, J.

The Petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 („B.N.S.S., 2023‟hereinafter) has been filed on behalf of the Petitioner for quashing of the Order dated 01.08.2024, passed by learned Special Judge (P.C. Act) Central Bureau of Investigation („CBI‟ hereinafter), New Delhi wherein direction had been given to the Petitioner/accused for filing of formal Application for Bail.

Briefly stated, the FIR No. RC0032024A0002 dated 08.01.2024 at Police Station CBI, ACB, New Delhi under Section 120B of the Indian Penal Code („IPC, 1860‟ hereinafter) and Section 7 of Prevention of Corruption Act, 1988 („P.C. Act‟ hereinafter) was registered in which after due investigations, the Charge Sheet has been filed by the CBI, in CBI No. 95/2024 „CBI vs. Aman Singh and Others‟. The Petitioner was never arrested during the course of the investigation and the Charge Sheet was filed without his arrest, before the learned ASJ. Thereafter, the learned Special Judge vide Order dated 09.07.2024, issued summons to the Petitioner for appearance before the Court on 01.08.2024. The Petitioner, consequently appeared and furnished personal Bond of Appearance, as directed by the Court. By the same Order, after accepting the Personal Bonds for Appearance, learned Special Judge, directed the Petitioner to file a formal Application for bail on the next date of hearing.

The Petitioner asserted that since he had put in his appearance before the learned Special Judge on the first date itself, there was no requirement of submitting a Bail Application, to secure his presence during the trial. Consequently, the Order dated 01.08.2024 of the learned Special Judge directing him to file the Bail Application, is liable to be set-aside.

The Petitioner has relied on the case of „Tarsem Lal vs. Enforcement of Directorate Jalandhar Zonal Branch‟, Criminal Appeal No. 2608/2024 wherein Apex Court has held that where the accused has not been arrested during the investigation, he shall not be arrested or taken into custody when he appears in compliance to the summons.

Reliance has also been placed on „Satender Kumar Antil vs. Central Bureau of Investigation and Anr., (2022) 10 SCC 51 and „Pankaj Jain vs. Union of India‟. AIR 2018 SC 1155.

No formal reply has been filed on behalf of the respondent. Learned counsel on behalf of the respondent submits that three separate Sanction Orders for prosecuting the three accused persons, were given and the Charge Sheet has been filed by the CBI. The learned Special Judge has taken cognizance of the same vide Order dated 09.07.2024.

Submissions heard.

Admittedly, the Charge Sheet was filed by the respondent without arrest of the Petitioner and the cognizance was taken by the Ld. Special Judge vide Order dated 09.07.2024. On the same day, summons were issued by the Ld. Special Judge for appearance of the Petitioner on the next date of hearing i.e. 01.08.2024.

The Petitioner along with Accused No. 2, appeared before the Ld. Special Judge on 01.08.2024 and furnished the Personal Bonds, which were accepted by the learned Special Judge, till the next date of hearing i.e. 07.08.2024. Both the accused were directed to file a formal Application for their bail.

The Petitioner is aggrieved by the direction given by the Ld. Special Judge for filing of a Bail Application, on the next date. It is contended that the law does not require filing of a formal Bail Application, to be released on a personal bond. The furnishing of the Personal Bond under Section 88 Cr.P.C. is sufficient compliance and there is no provision under Cr.P.C., which mandates the filing of a Bail Application or furnishing of Bail Bond along with Surety Bond.

To consider the contention of the Petitioner, it would be pertinent to reproduce Section 87 and 88 of the Cr.P.C., which read as under:-

The aforesaid two Sections feature in Chapter VI which deals with „Processes to Compel Appearance‟. It is evident that when a Court seeks the attendance of a person, either a summon or a warrant may be issued depending upon the nature and facts of the case. The attendance of the “person” is not defined and would include any person, witness including the accused whose presence may be required by the Court. Section 87 gives the discretion to the Court, to issue warrant either in lieu of or in addition to summons. The exercise of the aforesaid power to issue warrants can be done only after recording the reasons. A warrant can be either bailable or non-bailable. Section 88 empowers the Court to take a Bond for appearance of the person with or without sureties.

In the case of Inder Mohan Goswami vs. State of Uttaranchal & Ors., (2007) 12 SCC 1, the Apex Court laid down the guidelines for issuance of summons or warrants. It was directed that the Courts would first issue the summons and thereafter bailable warrants and in case of no success, then issue a non-bailable warrants if so required in a given situation. The issuance of non-bailable warrants involves interference with the personal liberty of an individual. Arrest and imprisonment mean deprivation of most precious right of an individual, therefore the Courts must be extremely careful before issuing non-bailable warrants. While recognising the individual liberty as a precious right, it needs to be balanced with the interest of the society in maintaining law and order, both of which are equally important for the survival of a civilized society. It was thus, observed that sometimes in the interest of public and the State, it becomes absolutely imperative to curtail the freedom of an individual for a certain period and only in such situation the non-bailable warrants may be issued. The circumstances may be if it is reasonable to believe that the person shall not voluntarily appear in the Court or the police is unable to find the person to serve him with the summons or it is considered that the person could harm someone if not placed into the custody immediately. As far as possible, the summons should suffice the appearance of the accused in the Court, which must be preferred to bailable or non-bailable warrants, which should not be issued without proper scrutiny of facts and complete application of mind. It is only if the Court is fully satisfied that the only way of ensuring the presence of the accused who is avoiding the appearance, that the non-bailable warrants may be issued. There cannot be any straitjacket formula for issuance of warrants though the Court must exercise its discretion judiciously with extreme care and caution.

Further, it has always been the concern of the Courts that the valuable right of liberty and grant of Orders of release on bonds, must not be made illusionary by imposing onerous Bond amounts which the person may not be able to abide. It has always been a vexed question about the amount for which the bonds and must be submitted.

This aspect was considered in the case of Pankaj Jain vs. Union of India (UOI) & Ors., (2018) 5 SCC 743 wherein a reference was made to Section 88 CrPC wherein discretion has been given to the Court to release the person on his Bond with or without sureties for his appearance in the Court. The discretionary power is given to the Court with the objective of ensuring appearance of such person in the Court or any other Court to which the trial may be transferred. It does not confer any right on a person who is present in the Court, but the power/discretion is given to the Court to facilitate the appearance, which is clearly indicated by the use of the word „may‟ in Section 88 of CrPC. Furthermore, the words used are “any person” meaning that it includes not only the accused but even witness or any other person who may be present in the Court and whose presence is required.

In order to secure the presence of any person under Section 87 and Section 88 of Cr.P.C. it is abundantly clear that the court may issue summons or warrants, as the circumstances may entail. These are the general sections defining the manner of securing presence and are equally applicable to all the stages of trial where ever a person has to be summoned. The provisions for Bail exist in distinct Chapters which deal with the trial after the Charge-Sheet is filed. The Bail orders must not be confused with seeking presence of a person by either issuing the summons or warrants; while one is a substantive order, other is only a procedure to secure presence; they both go hand in hand.

Chapter XII of Cr.P.C. (now Chapter XIII of BNSS) deals with „Information to the Police and their Powers to Investigate‟. It commences from Section 154 which provides for commencement of process of investigations by registration of FIR. Section 170 of Cr.P.C. provides for cases to be sent to Magistrate, when evidence is sufficient. It does not impose an obligation on the Officer In-charge to arrest each and every accused at the time of filing of the Charge-Sheet. Many a times where the accused has co-operated during the investigation, the Charge-Sheet is submitted without the formal arrest of the accused. Yet, as a practice on the filing of the Charge-Sheet, non-bailable warrants are issued for production of the accused, which is essentially premised on the assumption that there is an obligation to arrest the accused and produce him before the Court.

In the case of Satender Kumar Antil (Supra) it was clarified that where the Investigating Officer does not believe that the accused will abscond or disobey the summons, he/she is not required to be produced in custody. The word custody appearing in Section 170 Cr.P.C., does not contemplate either police or judicial custody but it merely connotes the presentation of the accused before the Court while filing the Charge-Sheet by the Investigating Officer. Personal liberty is the most important aspect of constitutional mandate. The occasion to arrest the accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime where there is a possibility of influencing the witnesses or the chances of the accused to abscond. Merely because an arrest can be made because it is lawful, does not mandate that arrest must be made.

It is abundantly clear from the aforesaid discussion that power of arrest during the investigations, though available, is circumscribed with the factors as discussed above. Arrest is not a rule and Bail is the rule, to be followed unless circumstances suggest otherwise.

The next stage of criminal trial is filing of Chargesheet in the Court and the trial. In this context, it is also significant to refer to Chapter XVI of Criminal Procedure Code, 1973 which deals with “Commencement of Proceedings before the Magistrate” (Now Chapter XVI of BNSS “Complaints to Magistrates”).

Section 204 and 209 of the Code (Sections 227 and 232 of BNSS, respectively) are significant to be considered in this regard as they provide for the procedure to be followed once the Charge Sheet is filed in the Court. Section 204 provides for issue of process in a warrant case, or if Court thinks fit, a summons for causing the accused to be brought or to appear at a certain time before such Magistrate. It reads as under:

Section 204 of the Code speaks of issue of process while commencing the proceedings before the Magistrate.

Similarly, Section 209 deals with the commencement of the trial by the Court of Sessions after the committal of the case. The relevant part of Section 209 Cr. P. C. reads as under:

From the aforesaid provisions and their placement in the respective Chapters, it is evident that Section 87 and Section 88 of Cr.P.C. are the general provisions providing for issue of Summons/warrants for securing presence. However, Section 204 and Section 209 feature in Chapter XVI of Criminal Procedure Code, 1973 which deals with “Commencement of Proceedings before the Magistrate” (Now Chapter XVI of BNSS “Complaints to Magistrates”), which specifically provide for admitting the accused to Bail. The Section 87 and Section 88 of Cr.P.C. deal with securing presence and not specifically with Bail.

The issue is not whether the accused is required to be admitted to Bail to face trial, but is limited to the question whether filing of Bail Application is mandatory before the accused is admitted to Bail.

This aspect has been succinctly dealt by the Apex Court in the case of Satender Kumar Antil (Supra), wherein it was explained that in simple parlance, bail means a release subject to the restrictions and conditions. It is for the Magistrate to take a call even without an Application for bail, if he is inclined to do so. In such a case, he can seek a bond or surety by taking recourse to Section 88 of CrPC. It was made clear that there was no need for a separate Application and the Magistrate is required to afford an opportunity and to pass a speaking order on bail.

In the case of Tarsem Lal (supra), though in the context of Complaint cases, similar observations were made that where the accused has not been arrested till the time of filing of complaint in the Court and the accused appears pursuant to the summons issued under Section 87 of the Code, then there is no reason for the Court to refuse or decline to accept the Bonds for ensuring the accused presence during the trial. It was further explained that furnishing of a Bond according to Section 88 of Cr.P.C., is an undertaking to appear before the Court, on the date fixed and in default he agrees to pay the amount so mentioned in the bond.

From the aforesaid discussion, it may be concluded that once a person appears in the Court pursuant to summons in a Warrant Trial case, he is not absolved of the provisions of bail. The Court may consider releasing him on bail after giving proper hearing to the parties, with or without filing of Application for bail. To conclude, filing of Bail Application per se is not mandatory.

Therefore, it is held that the directions given by the learned Special Judge vide Order dated 01.08.2024, were not required and the Court may hear the parties before admitting the Petitioner to bail and direct furnishing of Bail Bond and Surety Bond, in accordance with law.