Under S.438 Cr.P.C., the Court while granting relief to the applicant shall consider concerns of Investigating agency, complainant, and proviso to it: Supreme Court

While addressing an appeal against the order of the High Court under section 438 of Code of Criminal Procedure, the supreme court held that while dismissing the application but granting relief, the court shall consider the consider concerns of Investigating agency, complainant, and proviso to the section. This judgment was passed in the case of Nathu Singh vs. State of Uttar Pradesh and others [Crl.A.No.522/2021] and Ompal Singh vs. State of Uttar Pradesh & ors. [Crl.A.No.2271/2021] by a Bench consisting of Hon’ble The Chief Justice, Hon’ble Justice Surya Kant, and Hon’ble Justice Aniruddha Bose.

The present criminal appeals were filed by way of a Special Leave Petition. As far as the facts of this case are concerned, both the impugned orders, the High Court of Judicature at Allahabad while dismissing the anticipatory bail application of the respondents – accused, granted them 90 days to surrender before the Trial Court to seek regular bail and granted them protection from coercive action for the said period. Aggrieved by the same order both the complainants appealed in the Supreme Court. In the case of Nathu Singh, the appellant’s daughter was married to respondent no.2, and since she died under suspicious circumstances in her matrimonial home. The complainant registered for the offenses under Section 304 IPC and 498A IPC with sections 3 and 4 of the Dowry Prohibition Act against respondent no. 2 to 5. In the case of Ompal Singh, allegations were put that the appellant’s brother and the letter’s two sons were attacked by the respondents due to a dispute between the parties relating to the encroachment of land. The two sons were attacked on vital parts and consequently, FIR was registered under sections 307, 504, and 34 IPC.

The respondents approached the High Court under sections 438 CrPC to seeks protection from the arrest. The High Court dismissed their applications but granted them the above-mentioned relief. Aggrieved by the same, the complainant-appellants filed the present appeals before the Supreme Court.  The issue that the Supreme Court seeks to address was whether the High Court while dismissing the anticipatory bail applications could have granted them protection from arrest.

The Supreme court referred to its decision under the Sushila Aggarwal vs. Sate where it was held when an anticipatory bail is granted under section 438CrPC is granted the same is not limited to a fixed period and would extend till the end of the trial. However, if the factum of the case warranted special conditions could be imposed. The courts can therefore limit the period of anticipatory bail but reasons for the same should be given which would be assailable before a Superior Court. While interpreting Section 438 CrPC, the supreme court held that it is no longer res Integra that an interpretation of the provision of section 438 should take into consideration the fact that the section has a direct bearing on the fundamental right to life and liberty of an individual. Any ambiguity under the interpretation of the section must be resolved in favour of the person seeking relief. Further, the Supreme Court held that the proviso under section 438 CrPC clearly stipulated that unless the individual has obtained some form of protection from police may arrest them.

The Supreme court held that if not section 438 the High Court can very well grant relief to the applicant under section 482 CrPC as the section explicitly recognizes the High Court’s inherent power to pass orders to secure ends of justice. The court held that an order must be narrowly tailored to protect the interest of the applicant while taking into consideration the concerns of investigating authority with reasons for the same. the Supreme Court held that the High Court erred in exercising its powers under section 438 CrPC since while it dismissed the anticipatory bail it also provided relief, but the same was given without assigning reasons. Further, when 90 days period was assigned, the concerns of the investigation agency, complainant, and the applicant were not balanced.

The Supreme Court concluded by holding, “order dated 28.01.2021 in Criminal Miscellaneous Anticipatory Bail Application No. 1700 of 2021 to the extent of granting protection for 90 days to the respondents-accused are set aside, leaving it open to the Investigating Agency to proceed in the matters  in accordance with law and complete the investigation.”

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