Obtain Bail or Anticipatory Bail in Complaint cases or Go Inside

A Contemporary and Necessary Research

We are going to research a very practical and important question of law which is yet to be settled.

“Question of law: Whether a court that issues a summons to the accused to ‘appear’ and answer the charges in a complaint case is empowered to arrest and remand the accused in the court’s custody on his first appearance? Or if an accused who is ‘appearing’ before the concerned court after receiving a summons in a complaint case must file for bail when he appears, or necessarily obtain anticipatory bail before he appears? In both cases, the answer is unequivocally ‘YES’”

How?

Before entering this research study, I remind myself of my senior’s teaching: to read the law as it is, accept it as it is, process it as it is, and express it as it is. Practice to check other resources for clarification would be if I have doubts even after. I encourage the readers to do the same.

Research methodology adopted: Conclusion-First approach, and step-by-step examination of the conclusion

In this study, I intend to adopt a “conclusion-first” (answer first) approach to ensure clarity. By presenting my answers upfront, I want the readers to grasp the results first before going through a systematic, step-by-step examination of the research methodology. I have designed this structure of study to transform a complex legal inquiry into an interesting, engaging and transparent study towards the question of law. This approach is inspired by the way my senior answers the questions of the judicial officers in the courtroom. He would begin by directly answering the question and then guide the judge step by step through his reasoning process that led to that conclusion.    

Let us dive into a fascinating study on the question of law one by one in the following order of answers

(1) Obtaining a bail or an anticipatory bail is necessary for the accused who makes his/their first appearance in the summoning order before the concerned (trial) court.

(2) If not, the concerned court (trial) is empowered to arrest and remand the accused to its custody on his first appearance in pursuance of the summoning order.

(3) Courts cannot accept a bond under section 88 Cr.P.C instead of (or in the place of) bail or A.B since the court is not empowered to release solely based on his bond.

In simple language, the answer comes first, and the explanation or reasoning comes next, which are: (1) the accused must either apply and obtain bail from the court that summons him on his first appearance, or he must necessarily obtain an anticipatory bail from the Sessions or High Court before appearing for the first time on summons. (2) If the accused fails to do so (i mean not obtaining Bail or A.B), the concerned court that summons him is empowered to arrest him and remand him to its custody as per section 309 Cr.P.C. (3) Also, as an additional reading, we will learn that the bond under section 88 Cr.P.C is not equivalent to bail and therefore the courts cannot release a person by just accepting a bond under section 88 Cr.P.C without ordering of his release on a bail application (which includes A.B).

What is the connection between summons and bail/Anticipatory Bail?

A sharp reading of sections 478, 480 BNSS (corresponding to sections 436 & 437 Cr.P.C 1973) from Chapter XXXV – Provisions as to Bail and Bonds alongside Form No.2’ from the second schedule of BNSS., 2023 would clarify that a person accused of an offence in a complaint case must obtain bail while he is appearing before the concerned court.

Right. Now, while reviewing the aforementioned sections and form, we must fix in our mind that there is no separate bail provision or form contemplated under the BNSS (or in Cr.P.C) for police cases or complaint cases. BNSS (or Cr.P.C) maintains a uniform framework for bail provisions for both police and complaint cases. In other words, no provision under the BNSS (or Cr.P.C) bars the accused from filing and obtaining bail or Anticipatory bail in complaint cases, to be precise, since there is no exception for the accused from obtaining Bail or Anticipatory Bail under BNSS (or Cr.P.C), he has no other option but to apply for Bail or Anticipatory Bail and must obtain it on or before his first appearance in the concerned (trial) court.

The word ‘appears’ and its play in the field of complaint cases

Thus, it is inevitable to see the word “appears” has been drafted in both ‘sections 478(1), 480(1) of the BNSS and in Form No. 2 in the Second Schedule to the BNSS, 2023’ and from this, it is evident that the intention of the legislature is that, a person who is an accused in a police case or in a complaint case is being served with a summons by a competent court (trial) after taking cognizance, he (the accused) must ‘appear’ before the concerned court in obedience to the summoning order and thereafter, on such appearance, the accused must seek and obtain bail in both the cases involving bailable and non-bailable offences, in view of the expression “or appears” being used under Sections 478, 480 and form no.2 of the BNSS.

Now, the big question here is why the accused must go for Bail or A.B on his first appearance in complaint cases?

Because the very next question that comes to the court’s mind following the summoning order would be of what the court must do (or what action to take) if the accused ‘appears’ in obedience to the summoning order. Here is the answer: the only Chapter with immediate relevancy to the summoning order is ‘Provisions as to bail and bonds’ (Chapter XXXV) for the reason that the word ‘appear’ readily seems to appear in summons form (the first place) and in bail provisions.

Now, it is high time to take a look at the newly defined provision for bail under the BNSS., 2023 and a judicial reference in connection to accused.

Definition of bail under BNSS: “Section 2 (b) “bail” means release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond”.

Who is the accused? “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” [Pepsi Foods Ltd. Vs. Special Judicial Magistrate, (1998) 5 SCC 749]

Even a superficial reading of section 2(b) of the BNSS combined with Pepsi Foods Ltd (supra) would lead us to understand that a person who is an accused (once a summons is received, he is confirmed as an accused) comes automatically under the custody of law, and hence bail is a necessity for his temporary release from the court’s custody till the end of the trial or case however he is not released from the custody of law. It is worthwhile to note that the Hon’ble Supreme Court did not categorise the ‘accused’ as police accused or complaint accused in Pepsi Foods Ltd (supra).

Releasing a person on Bail or A.B is a temporary release from the custody of court and not from the custody of law. 

When and where can an accused file a bail application after he receives a summons?

For this, it is valuable to read ‘paragraph 10’ from the Hon’ble Supreme Court judgment Souvik Bhattacharya … Appellant(s) versus Enforcement Directorate, Kolkata Zonal Office – ii …Respondent(s) – Criminal Appeal No. of 2024 (Arising out of SLP(Criminal) No.14476 of 2023) (Arising out of impugned final judgment and order dated 18-10-2023 in CRM(SB) No.164/2023 passed by the High Court at Calcutta) – 16th February, 2024]

“10. As such Section 437 would come into play when the accused is arrested or detained or when the summons or warrant is issued against the accused for causing him to be brought or to appear before the Court. In absence of any order for issuance of summons or warrant under Section 204 or under any other provision of Cr.P.C., the summons could not have been issued or served upon the appellant nor he could have been arrested or taken into custody. The appellant-accused also appears to have filed the bail application before the Special Court under the misconception of fact and misconception of law, which application came to be dismissed by the Special Court. Though the said issue was not specifically raised by the appellant before the High Court, the said question being the question of law, we have permitted the counsel for the appellant to be raised in the instant appeal”.

Here, the Hon’ble Supreme Court in Souvik Bhattacharya case (supra) has taken the matter as a question of law and held that if the accused ‘appears’ on the summons or is brought before the concerned court on a ‘warrant’, only then he can apply for bail under section 437 Cr.P.C (kindly note that the Apex court did not speak about section 88 Cr.P.C) before the concerned court. In other words, the Apex court has pronounced that if there is no summons for appearance, then the accused cannot surrender himself for the custody of the court and claim bail under section 437 Cr.P.C.

Whether the Anticipatory Bail is for apprehension of arrest by the police only, or is there no Anticipatory Bail for complaint cases?

Now, the very big question is whether an accused of a non-bailable offence in a complaint case, after receiving a summons, could apply and obtain anticipatory bail before his appearance? The answer is a very big YES. How? Let us analyse.

Normally, a basic misunderstanding occurs that the Anticipatory bail application is only for police cases and not for complaint cases, inasmuch as there is no intervention or involvement of police authorities in complaint cases. But the same is answered in the negative by the following judgment, after all, the provisions in the BNSS are handmade of justice that fit the legislation’s intent.

A three-Judge Bench of the Hon’ble Supreme Court in Satender Kumar Antil vs. Central Bureau of Investigation and Others (dated 21.03.2023), while addressing the question posed by the amicus curiae, pertains to the status/position of an accused person appearing before the court for the first time after receiving a summons is clarified by the Hon’ble Supreme Court after referring its previous judgment in Mahdoom Bava vs. Central Bureau of Investigation [Mahdoom Bava vs. Central Bureau of Investigation (20.03.2023 – SC)-MANU/SC/0275/2023= 2023(4) SCALE 548= AIR 2023 SC 1570= 2023 INSC 263], the same is reiterated as follows:

“Mr. Siddharth Aggarwal , learned senior Counsel seeks to bring to our notice an order passed yesterday by a Bench of this Court in Criminal Appeal No. 853/2023, Mahdoom Bava vs. Central Bureau of Investigation where the issue qua how the Court deals with anticipatory bail where a person has cooperated with investigation but never arrested and charge sheet has been filed has been dealt with.

…..

Learned counsel submits that though there is observation qua the correctness of the practice to be tested in an appropriate case, this case itself is the appropriate case as directions have already been passed and somehow they have been understood as if they will apply to cases for regular bail and not to anticipatory bail. We would like to clarify that what we have enunciated qua bail would equally apply to anticipatory bail cases. Anticipatory bail after all is one of the species of a bail”. [Miscellaneous Application No. 2034/2022 in MA 1849/2021 in Special Leave to Appeal Crl. No. 5191/2021, IA No. 52669/2023, IA No. 52666/2023, IA No. 36585/2023, IA No. 36697/2023, IA No. 35729/2023, IA No. 52662/2023, IA No. 52655/2023, IA No. 54736/2023, IA No. 54707/2023, IA No. 55890/2023, IA No. 56839/2023, IA No. 56842/2023, IA No. 56846/2023, IA No. 56848/2023, MA 2035/2022 in Special Leave to Appeal Crl. No. 5191/2021, IA No. 166259/2022, Diary No. 10451/2023 and IA No. 51653/2023 – Date of Order: 21.03.2023 – Satender Kumar Antil Vs. Central Bureau of Investigation & Ors (21.03.2023 – SC Order)-2024 (1) MWN (CR.) 424].

What the Hon’ble three-judge bench means by stating that “this case itself is the appropriate case as directions have already been passed” is that the direction issued in Satender Kumar Antil vs. Central Bureau of Investigation [Miscellaneous Application No.1849 OF 2021 in Special Leave Petition (Crl.) No.5191 OF 2021 & ANR – July 11, 2022] applies to A.B also since there are many amended orders issued on the main judgment. In clear words, the aforesaid three-judge bench of the Supreme Court simplified the position/practice that the directions/guidelines issued for bail in Satender Kumar Antil (main judgment) shall equally/also apply to anticipatory bail also in cases where the accused make(s) his/their first appearance in the trial court (concerned court) following a summoning order, since the Anticipatory Bail is nothing but one of the kinds of bail.

Hence, it is clear that the accused, who is about to make his first appearance in court, can file and seek Anticipatory Bail before the Sessions court or High Court to avoid arrest and remand by the courts, irrespective of whether it is a police case or a complaint case.

What happens if the accused appears pursuant to the summons and applies for bail, or what happens if he appears without an order of bail apprehending his arrest (A.B order)?

This must be answered by mentioning that the court is empowered to arrest and remand the accused to its custody directly on his first appearance. A curious reading of the following Supreme Court Judgments clarifies the power of the court to arrest and remand the accused on his first appearance in obedience to the summons order, in affirmative.

It is important to note that the Supreme Court’s decision in the Mahdoom Bava case (supra) is not just for CBI cases. It also applies to cheque bounce cases (Section 138 of the NI Act). This was confirmed the very next day in the Satender Kumar Antil vs. CBI – ordered (21.03.2023), as reported in 2024 (1) MWN (Cr.) 424 (3 judge bench)

“48. Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender [Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440]”

From the Directorate of Enforcement case (supra) and the Mahdoom Bava case (supra), it is clear that the power of arrest highlighted in the aforementioned judgments is nothing but the handmade of justice, empowering the concerned courts to remand the accused who is appearing for the first time before it. A thorough examination of the aforementioned judgments clarifies since an arrest is a precondition/prerequisite to remand an accused into judicial custody, the Hon’ble Supreme Court has interpreted and grant such power of arrest as an inherent or “inbuilt” procedure to the trial court, when a trial court by reasoning order intends to remand an accused who is appearing for the first time in response to the court’s summon.

Analysing section 88 Cr.P.C as not an alternative to bail or A.B

What is bail, though not explained in Cr. P.C. is now defined in section 2(b) of the BNSS as the release of an accused from the custody of law. Here, a combined reading of sections 2(b), 478, 480 and 482 BNSS go to show that the word ‘release’ is the ‘magic word’ that empowers the court to free a person from its temporary clutches (custody), since the main case is pending. Now the important ingredient i.e., the ‘magic word release’ is absent under section 90 BNSS and the only power available to the court is if an accused person who is appearing for the first time in response to the summons executes a Bond under section 91 BNSS then the concerned court may receive the same and record/file it with the case bundle and nothing else.

In simple words, the courts are not empowered to release a person after receiving only a bond under section 91 BNSS for the following reasons.

Section 88 Cr.P.C (s.91 BNSS) is not a right of any person

Judgments reference

One may ask, how would you say that an accused shall not be released by obtaining a bond under section 88 Cr.P.C (s.91 BNSS)? For a simple reason, no court, even the Hon’ble Supreme Court, can release an accused from custody invoking section 88 Cr.P.C (s.91 BNSS) since it has no ‘power’ to release.

Yes, I meant power. I know there are constitutional and inherent powers for the Hon’ble Supreme Court or High Court to release a person from custody, but not by invoking section 88 Cr.P.C (s.91 BNSS). The power required to release a person in custody is to be ascertained from the sections only (through concerned words). Let us restrict ourselves only to bail. If we examine sections 478 & 480 BNSS, we can find the words ‘shall be released on bail’ which empower the Magistrate/trial court to release a person from custody. Are there any such ‘magic words’ available under section 88 Cr.P.C (s.91 BNSS) empowering the Magistrate/court to release a person from custody? The answer is ‘NO’.

We have to understand that the law is based on logical conclusions; therefore, it is illogical to release a person by invoking section 88 Cr.P.C (s.91 BNSS) from custody, whereby the magistrate or trial court has no power to do so. Further, Chapter XXXV BNSS says ‘Provisions as to Bail and Bonds’ and not as ‘Provisions as to Bail or Bonds’. Therefore, on the first ‘appearance’ of the accused through summons, the provision to release him is only through bail and not by obtaining a bond under section 88 Cr.P.C (s.91 BNSS).

At this moment,  I want to cite the following Supreme Court judgment.

“15. Now, we come to the issue of whether an order of the Court accepting bonds under Section 88 amounts to grant of bail. If an accused appears pursuant to a summons issued on the complaint, he is not in custody. Therefore, there is no question of granting him bail. Moreover, even if the accused who appears before the Court does not offer to submit bonds under Section 88 of the CrPC, the Court can always direct him to do so. A bond furnished according to Section 88 is an undertaking to appear before the Court on the date fixed. The question of filing bail bonds arises only when the Court grants bail. When an accused furnishes a bond in accordance with Section 88 of the CrPC for appearance before a Criminal Court, he agrees and undertakes to appear before the Criminal Court regularly and punctually and on his default, he agrees to pay the amount mentioned in the bond. Section 441 of the CrPC deals with a bond to be furnished by an accused when released on bail. Therefore, in our considered view, an order accepting bonds under Section 88 from the accused does not amount to a grant of bail” – TARSEM LAL vs. DIRECTORATE OF ENFORCEMENT  JALANDHAR ZONAL OFFICE – 2024 INSC 434 – CRIMINAL APPEAL NO.2608 OF 2024 (Arising out of Special Leave Petition (Crl.) No. 121 of 2024) – May 16, 2024]

Conclusion

Hence, in conclusion, the answer to the question of law that is based on the aforesaid research study is that the accused must apply for bail after he appears for the first time before the concerned court that issues a summons to him, or he must necessarily obtain Anticipatory Bail to avoid the arrest by the court (not by police) and remand to its custody. In the first case, if he applies for bail, the court is empowered to reject the bail application and take him into its custody by arresting and remanding the accused, since the arrest is the inbuilt power granted by the Judicial pronouncements.

In the event of the accused’s first appearance in a complaint case, since there is no separate provision or provision that bars the accused from obtaining bail (including A.B), it is must and necessary for the court must see whether the accused is filing bail application (on his first appearance) or has he obtained an order of A.B already, without the release of bail order from the concerned court or without an order of A.B the court shall not allow the accused to walk away.

By

Ramprakash Rajagopal

Advocate, Tamilnadu.