Satender Kumar Antil V. CBI (2021)

Citation – Civil Appeal No. 7598 of 2021

Court -The Supreme Court of India

Bench– Justice Sanjay Kishan Kauland Justice M.M Sundresh

Relatable Section / Acts–

Section 45 of PMLA Act – Non-cognizable and non-bailable offences. 

Section 19 of PMLA Act- the power to arrest. 

Section 88 of CrPC – the power to take bond for appearance.

Issue before the court–

In the instant case, the Supreme Court clarified that the twin bail conditions provided under section 45 of the Prevention of Money Laundering (PMLA) Act have been struck down. Furthermore, the Apex Court laid down guidelines for the grant of bail to ease the procedure of bail as the lower courts are hesitant to grant bail even after the cooperation of the accused.

The main issue that the Supreme Court came across is that of unnecessary arrest of the accused person during an investigation, or before as well as after filing of the chargesheet.

Abstract–

In the case of Satender Kumar Antil v. CBI &Anr, the Divisional Bench of two Judges of the Supreme Court voiced the dissatisfaction with the possibility of regular arrests as well as thought it was important to set down a few guidelines in this regard and came up with new guidelines on granting bail. The aim of these new guidelines is to prevent the unnecessary arrest of the accused person during an investigation, or before as well as after filing of the chargesheet. Furthermore, the Supreme Court outlined four categories into which criminal offences should be classified. These guidelines also provide some constructive suggestions to prevent the accused person from getting arrested during the investigation.

Introduction– 

According to Section 173 of the Code of Criminal Procedure, an investigation is completed after the filing of the police report by the investigation agency, i.e., by producing the final findings before the court. Meanwhile, if the investigation agency asserts that they have obtained enough evidence to build a prima facie case, then according to Section 170 of the Code of Criminal Procedure 3 the investigation agency may request the concerned Magistrate to remand the accused in judicial custody and thereafter, for the commencement of the trial. However, the accused may not be sent to judicial custody if capable of furnishing a surety with some security amount or a Personal Bond with an undertaking that that he shall appear before the court whenever required.

Facts–

In this instant case, the accused had applied for anticipatory bail after the charge sheet was filed against him. However, because of his absence in the Court during the proceedings, the application was rejected and non-bailable warrants were issued. Resultantly, a Special Leave Petition was filed before the Supreme Court where the accused was questioned about his absence before the Court and about the filing of anticipatory bail application. An application was also filed regarding clarification of section 45 of the PMLA Act, which was struck down in 2018 in the case of Nikesh Tarach and Shah v Union of India. In this case, the Supreme Court had categorized the offences into 4 groups: A, B, C and D. The counsel submitted that there were some inconsistencies with respect to the categories. For example- other than being a special statute, category D covers economic offenses. However, theft, which is punishable for 3 years, is an economic offence and should come under category A or B. Mr. Raju stated that section 45 has been amended even though it was struck down and the amendment has been subsequently challenged. The bench stated that Section 45 (original provision) has been struck down. By striking down section 45, the Court’s intention was to ease the procedure of bail. The Court further asked the parties to decide collectively about the clarification they sought from the Court. Talking about the irresponsibility of the lower courts in granting bail, the Court said that the Supreme Court has been converted into a bail court with 40% of cases of anticipatory bail. The Court said that in economic cases, the motive is to get the amount and not everyone should be put behind bars with the investigation continuing indefinitely. Mr. Siddharth Agrawal stated that the order dated 7th Oct 2021, did not create fetters on grant of bail. To this, the bench replied, “we will say that the order no way imposes additional fetters, but it is in furtherance of the line of judicial thinking to enlarge the scope of bail”. Mr. N. Hariharan submitted that even if the person was not arrested but then brought before the Court, an odd situation would be created as section 19 of PMLA Act did not contemplate arrest. Furthermore, Section 45 would not come into play if Section 19 does not come into play. He further stated that clarification should be given regarding section 45 PMLA. The bench replied to this and said, “We has already stated that if the Investigating Agency does not need to arrest at the time of investigation, then we have discouraged.” Mr. Hariharan further said that even if the accused was not arrested under PMLA by the agency, and was produced along with the complaint, he should be given benefit available with respect to other cases. This suggestion by Mr. Hariharan was disagreed with by Mr. Raju as he stated that such guidelines could not be issued as in some cases, the investigating officer can be corrupt, and he will not arrest the accused. To this the bench replied, “If during the course of investigation, there is no cause to arrest the accused, merely because chargesheet is filed, would not be an ipso facto cause” The bench pointed that the mindset of lower courts is such that they tend to reject bail and any order passed by the Supreme Court would not change such mindset. Mr. Amit Desai stated that in Bombay, the Trial Court interprets the guidelines as a judgment and ignores the law on grant of bail. Another point was stated by Mr. Mukul Rohtagi that when a person, who meets the conditions set in order of 7th Oct, “appears on summons, then such a person has the recourse of Section 88 of Cr.PC, whereby he ought to apply for bond and not bail. “It was requested by him to specify in order that recourse of section 88 is available with the accused. Mr. Desai stated that people have to apply for bail even in complaint cases. The Court remarked that bail matters should not be heard for more than 15 to 20 minutes, but usually the hearing goes on for hours. All the time which the Courts should devote to the prosecution of a case is spent on hearing bail matters. Mr. Desai also stated that because of this there is overcrowding in the jail as the undertrials are sitting there. Mr. Raju stated that hospitals are occupied by 90 percent of offenders.

Case Analysis –

In Satender Kumar Antil v. CBI court gives the following guidelines for arrest and bail-

24.Section 41A deals with the procedure for appearance before the police officer who is required to issue a notice to the person against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence, and arrest is not required under Section 41(1). Section 41B deals with the procedure of arrest along with mandatory duty on the part of the officer.
25.On the scope and objective of Section 41 and 41A, it is obvious that they are facets of Article 21 of the Constitution. We need not elaborate any further, in light of the judgment of this Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273:
26.We only reiterate that the directions aforesaid ought to be complied with in letter and spirit by the investigating and prosecuting agencies, while the view expressed by us on the non-compliance of Section 41 and the consequences that flow from it has to be kept in mind by the Court, which is expected to be reflected in the orders.
27.Despite the dictum of this Court in Arnesh Kumar (supra), no concrete step has been taken to comply with the mandate of Section 41A of the Code. This Court has clearly interpreted Section 41(1)(b)(i) and (ii) inter alia holding that notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present. Thus, sub-clause (1)(b)(i) of Section 41 has to be read along with sub-clause (ii) and therefore both the elements of ‘reason to believe’ and ‘satisfaction qua an arrest’ are mandated and accordingly are to be recorded by the police officer.
28.It is also brought to our notice that there are no specific guidelines with respect to the mandatory compliance of Section 41A of the Code. An endeavor was made by the Delhi High Court while deciding Writ Petition (C) No. 7608 of 2017 vide order dated 07.02.2018, followed by order dated 28.10.2021 in Contempt Case (C) No. 480 of 2020 & CM Application No.25054 of 2020, wherein not only the need for guidelines but also the effect of non-compliance towards taking action against the officers concerned was discussed. We also take note of the fact that a standing order has been passed by the Delhi Police viz., Standing Order No. 109 of 2020, which provides for a set of guidelines in the form of procedure for issuance of notices or orders by the police officers. Considering the aforesaid action taken, in due compliance with the order passed by the Delhi High Court in Writ Petition (C) No.7608 of 2017 dated 07.02.2018, this Court has also passed an order in Writ Petition (Crl.) 420 of 2021 dated 10.05.2021 directing the State of Bihar to look into the said aspect of an appropriate modification to give effect to the mandate of Section 41A. A recent judgment has also been rendered on the same lines by the High Court of Jharkhand in Cr.M.P. No. 1291 of 2021 dated 16.06.2022.
29.Thus, we deem it appropriate to direct all the State Governments and the Union Territories to facilitate standing orders while taking note of the standing order issued by the Delhi Police i.e., Standing Order No. 109 of 2020, to comply with the mandate of Section 41A. We do feel that this would certainly take care of not only the unwarranted arrests, but also the clogging of bail applications before various Courts as they may not even be required for the offences up to seven years.
30.We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41A. We express our hope that the Investigating Agencies would keep in mind the law laid down in Arnesh Kumar (Supra), the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance. Our view is also reflected by the interpretation of the specific provision under Section 60A of the Code which warrants the officer concerned to make the arrest strictly in accordance with the Code.

These were the conditions laid down by the Supreme Court for the guidelines to be applicable- i. During the investigation, there was no arrest of the accused. ii. There was cooperation from the side of the accused which includes appearing before the court as well as paying the amount asked. The Court has differentiated the offences in 4 categories. Category A, General offences- Not an economic offence; offences which are punishable for 7 years or less than that; offenses which are not punishable with death, life imprisonment or imprisonment for 7 years or more. Category B,Heinous Offences- offenses which are punishable with imprisonment for 7 or more years, death penalty or life imprisonment. Category C, Special Offences- offences that are punishable under Special Acts. For example- section 37 of NDPS Act, section 45 of PMLA Act, UAPA Act section 43D(5), and Companies Act section 212(6). Category D, Economic offences – offences not covered by any special Act. 

SC has laid down specific guidelines as per the category.

Category A- after filing of chargesheet,1. The Court will issue an ordinary summon .2. After that, if the accused doesn’t appear, then warrant will be issued for physical appearance.3. If he still does not appear then a non-bailable warrant will be issued.4. The Court can cancel the non-bailable warrant or convert it into a bailable warrant, with no insistence on the accused’s physical appearance, provided the accused files an application before the non-bailable warrant is executed and promises that he will be present physically on the next date of hearing.5. The Court can decide bail application of the accused in his presence without taking him in custody or he may also be granted interim bail before bail application is decided. Category B & D- if the accused appears in Court during any proceedings, the bail application will be decided on merits. Category C- “the conditions are same as in category B and D, along with compliance of specific provisions of bail which are provided under the Special Act.

Conclusion-

 In the case of Sanjay Chandra vs SBI, the Court held that economic offences are not excluded from the Court’s considerations for granting bail and that the only factor that the court must examine is the seriousness of the accusation and the harshness of the sentence. The rules provided much-needed guidance for subordinate courts, which are often hesitant to grant bail but rapid to order the detention of the accused persons, even when they have cooperated during the inquiry.”

Written by Rasikh Javed