Person accused of non-bailable offence but who was not required in custody during investigation is entitled to bail: Supreme Court

The Supreme Court has held that if a person is accused in a non-bailable offence and his custody was not required during the period of investigation, then it is appropriate that such an accused be released on bail. (Aman Preet Singh vs CBI).The fact that the accused was not arrested during the investigation and not being produced in custody before the chargesheet was filed is sufficient to entitle such person to be released on bail, the top court said..“The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this,” the Supreme Court explained..Given that there was an attempt to send such an accused person to judicial custody in the present case despite interim protection granted by the Supreme Court earlier, the Bench of Justices Sanjay Kishan Kaul and MM Sundresh was prompted to exclaim, ."This is one more case based on a misconception and misunderstanding of Section 170, CrPC!".Section 170 of the Code of Criminal Procedure (CrPC) deals with the procedure to be followed after cases are sent to the Magistrate concerned, when the evidence is sufficient..The top Court explained that once a charge sheet has been filed, the court concerned has to accept the same immediately and proceed thereafter in accordance with Section 173, CrPC (report of police officer on completion of investigation). .If a warrant of arrest is to be issued thereafter, the court is required to record the reasons as contemplated under Section 87, CrPC "that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.".In cases involving (i) a person accused of a non-bailable offence and (ii) whose custody was not required during the period of investigation, the Supreme Court explained that, ."In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.".The Court added that these observations supplement the Supreme Court's ruling in Siddharth vs. State of Uttar Pradesh & Anr, which is the guiding principle for a Magistrate while exercising powers under Section 170, CrPC. .The Court was dealing with a case where an FIR was registered in 2014 and the appellant had been asked to join the probe after the chargesheet was filed. .In July 2019, a Special Chief Judicial Magistrate (CBI) at Bhubaneshwar issued non-bailable warrants of arrest against the accused in the case, including the appellant. .After the appellant approached the Supreme Court for anticipatory bail, he was granted interim protection by the Supreme Court in May 2021, which directed him to approach the trial court for regular bail. .Recalling this May 2021 order, the Supreme Court pointed out that since the custodial interrogation of the appellant was not required during investigation and charge sheet having been filed, there was really no occasion to arrest the appellant..Thereafter, the appellant was supposed to join the trial court proceedings virtually. However, when he sought to enter the appearance, his request was declined by an order dated June 2021 by the trial court. This denial was predicated on the reasoning that the appellant had not remained physically present. .This trial court order was upheld by the Orissa High Court in a judgment dated July 9, 2021. The Orissa High Court was then challenged before the Supreme Court. .Before the Supreme Court, the appellant also registered protest over the high-handedness of the CBI given that the public prosecutor had called on the trial court to send the appellant to judicial custody, despite the interim protection granted by the Supreme Court. .The prosecutor is alleged to have submitted that the Supreme Court's direction that the appellant "not be arrested" did not mean that he could not be sent to judicial custody. Expressing disapproval, the Supreme Court said:."We may only note all these submissions are completely inappropriate and indefensible. Neither did the learned Additional Solicitor General seek to contend except stating that those are only submissions. We expect a public prosecutor to be conscious of the legal position and fair while making submissions before the Court. We say no more as at least the Chief Judicial Magistrate understood the order clearly and thus did not agree with the submission of the public prosecutor.".The Supreme Court went on to rule that it was a fit case for the trial court to grant the appellant bail on the next date of hearing. The top court also extended its interim protection from arrest to the accused till the trial court passes an order in this regard..On a parting note, the Court also directed the circulation of the ruling in Siddharth v. State of Uttar Pradesh.."In order to prevent situations of the kind which have arisen and repeatedly arise, it may be appropriate for the High Courts to circulate the judgments passed in Siddharth vs. State of Uttar Pradesh & Anr.(supra) and passed today to the trial Courts as the problem appear to be endemic," the Court said. .[Read Judgment]