Initiative I - 01 Oct, 2021 - PIL in the Hon’ble Supreme Court of India seeking to include the position of those accused never arrested during investigation but possibly facing jail by Trial Courts remanding them to judicial custody on their appearance before the Trial Court on the Investigating Agency filing the prosecution compliant in the Trial Court.

The manner of issuance of summons by the Trial Courts in India to the accused in a criminal trial when the charge sheet or prosecution complaint is filed by the Investigating Agency has had longstanding concerns due to the wrong interpretation of the summons and bail provisions in CrPC by the Trial Courts. In specific, Trial Courts in several states across India were issuing non-bailable warrants (NBWs) against the accused in a routine manner as a means to summon them for appearance in the Court when the Investigating Agency files the chargesheet or the prosecution complaint. These NBW’s were issued despite the accused having extended cooperation throughout the investigation and never having been arrested during the investigation. On appearance, many Trial Courts routinely remanded the accused to judicial custody despite the accused never having been arrested during the investigation. As a result, the accused often ended up in jail for long periods until their bail applications were heard and decided at whichever Court the bail was finally granted.

The Hon’ble Supreme Court of India took up this matter in 2021 wherein the Hon’ble Supreme Court issued clear guidelines and direction in this matter to the Trial Courts. Here below is a look at the chronology of the various writs which were filed in the Hon’ble Supreme Court of India and the orders issued by the Hon’ble Supreme Court of India in this matter.

In July 2021, a Special Leave Petition (Satender Kumar Antil v CBI & Anr.) was filed against the dismissal of an anticipatory bail petition by the Hon’ble High Court of Allahabad. The petition sought to challenge the inconsistencies in the grant of anticipatory bail by the Trial Courts and High Court of Allahabad as Trial Courts in Uttar Pradesh routinely followed a norm and more so in cases filed by specialized agencies like CBI, NIA etc. where the accused individuals who were not arrested during investigation were automatically sent into judicial custody on appearance further to a NBW issued by the Trial Court for their appearance on the chargesheet or the prosecution complaint being filed in the Court by the Investigating Agency. A copy of the Special Leave Petition is attached as Annexure A.

On 16th August, in Sidharth v State of Uttar Pradesh & Anr., the controversy surrounding Section 170 of the CrPC was brought up wherein Trial Courts had wrongly interpreted the section to mean that the chargesheet will not be taken on record on it being filed by the Investigating Agency in the Trial Court unless the accused appears before the Trial Court and is taken into custody. The Hon’ble Supreme Court held that Section 170 of the CrPC does not impose an obligation on the Investigating Officer to arrest each and every accused at the time of filing the charge sheet. The Hon’ble Court observed that the practice of some Trial Courts of insisting on the arrest of an accused as a prerequisite formality to take the chargesheet on record is misplaced and contrary to the true intent of Section 170 of the CrPC. A copy of the order is attached as Annexure B.

On 2nd September 2021, in Aman Preet Singh v CBI through Director, addressing the same practice by the Trial Courts, the Hon’ble Supreme Court laid down that while accepting the chargesheet, the Magistrate or Court is required to invariable issue a process of summons, and not warrant of arrest. It was further observed that, if an accused in a non-bailable offence has been enlarged and free for many years without even being arrested during investigation, it would be contrary to the governing principles surrounding grant of bail to suddenly direct his arrest merely on the ground that chargesheet has been filed in the Trial Court. A copy of the order is attached as Annexure C.

On 14th September, 2021, while continuing the hearings in Satender Kumar Antil v CBI & Anr., a plea of an accused who was not arrested during investigation of the case and was charge sheeted by CBI in a corruption case the bench of Justices Sanjay Kishan Kaul and M M Sundresh said, “in view of the submission in Court, it is deemed appropriate that some guidelines may be laid down so that the Courts are better guided and not troubled with the aspect of bail on charge sheet being filed”. A copy of the order is attached as Annexure D.

On 1st October 2021, Lawyers Against Malicious Prosecution (LAMP) filed a Writ Petition before the Hon’ble Supreme Court of India bringing up the issues in Satender Kumar Antil v CBI & Anr seeking to broaden the scope of Hon’ble Supreme Court of India’s directions to include similar instances in special criminal legislations like the Prevention of Money Laundering Act, 2002 (PMLA). This petition urged the Hon’ble Supreme Court of India to look into the manner in which individuals who had cooperated during investigation and were not arrested were being routinely sent to judicial custody and often for long periods of time till they get bail on they appearing before the Trial Courts when summoned through NBWs on chargesheet or prosecution complaint is filed in the Trial Court. While the two-judge bench of the Hon’ble Supreme Court of India, comprising of Hon’ble Mr. Justice Sanjay Kaul and Hon’ble Mr. Justice M M. Sundresh, dismissed the petition, However the Hon’ble Supreme Court permitted the senior legal counsel representing LAMP, Advocate Menaka Guruswamy to submit her suggestions (recommendations) in this regard to the Additional Solicitor General who was handling the matter for Union of India. Copy of the Writ Petition is attached as Annexure E and copy of the order is attached as Anenxure F.

On 4th October 2021, Advocate Maneka Guruswamy submitted the suggestions to Additional Solicitor General, Mr. S.V. Raju, pursuant to order dated 1st October 2021. Copy of the letter is attached as Annexure G respectively.

On 7th October 2021, in Satender Kumar Antil v CBI & Anr., the Hon’ble Supreme Court of India issued guidelines for issuance of bail in offences in Category A (i.e., offences punishable with imprisonment of 7 years or less, not falling in category B & D). While Offences in Category B (Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years) , Category C (Offences punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc.) and Category D (Economic offences not covered by Special Acts) were excluded from the guidelines. The guidelines issued for offences under Category A are as follows:

“After filing of chargesheet/complaint taking of cognizance

• a) Ordinary summons at the 1st instance/including permitting appearance through Lawyer.
• b) If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.
• c) NBW on failure to failure to appear despite issuance of Bailable Warrant.
• d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.
• e) Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided.”

Whereas, for Category B & D, “On appearance of the accused in Court pursuant to process issued bail application to be decided on merits.”. For Offences under Category C, an additional safeguard was added wherein “Same as Category B & D with the additional condition of compliance of the provisions of Bail uner NDPS S. 37, 45 PMLA, 212(6) Companies Act 43 d(5) of UAPA, POSCO etc.”.

A copy of the order is attached as Annexure H.

On 16th December, 2021, in the hearing pursuant to a clarificatory application filed in Satender Kumar Antil v CBI & Anr., the Hon’ble Supreme Court further revised the guidelines issues in this matter to clarify that the twin conditions for grant of bail specified in Section 45 of the PMLA have been struck down. The Hon’ble Court observed "The parties state that they will…work out some fine tuning required to give meaning to the intent of our order dated 7.10.2021. At this stage it suffices to say that by referring to Category C Section 45 of PMLA has been mentioned, which has been struck down by this Court. Ld ASG states that an amendment was made which is pending challenge...and is a matter to be considered by that Bench. We are putting a caution that merely by categorising certain offences as economic offences which may be non-cognizable it does not mean a different meaning is to be given to our order…. Our intention was to ease the process of bail…". A Copy of the order is attached as Annexure I.

Thus, today, the settled position of law in the matter of accused summoned by Trial Courts when they have never been arrested during investigation is that they should not be sent to judicial custody but to be released on bail.

While a major part of achieving this clarity in position of law was by the work done by the Lawyers representing the petitioners in Satender Kumar Antil v CBI & Anr., Sidharth v State of Uttar Pradesh & Anr., and Aman Preet Singh v CBI through Director, especially Senior Advocates Mr. Sidharth Luthra with fair reciprocal support by ASG Mr. S V Raju, LAMP through Senior Advocate Ms. Menaka Guruswamy was able to play a minor role in bringing the inconsistencies in this matter while prosecution complaints (as opposed to chargesheets) are filed to the notice of all concerned and the guidelines issued to include the situation of those never arrested during investigation having to face jail when prosecution complaints are filed and the Trial Court takes it on record.