Recently, the Allahabad High Court ('AHC') in Amar Mani Tripathi v. State of U.P.1 ruled that if an accused summoned for cognizable and non-bailable offences cannot apply for bond under s. 88 of the Code of Criminal Procedure, 1973 ('CrPC'), instead he must apply for regular bail in accordance with the law. The decision raises a critical procedural question in criminal trials involving such offences: Is it necessary for an individual, not yet arrested by the investigating agency or police, to file for bail to ensure their liberty during the trial? This essay examines this question in light of the landmark decisions of the Hon'ble Supreme Court ('SC') in the case series of Satender Kumar Antil v. CBI.
Legal Provisions and Procedure
Cognizable and non-bailable offences represent categories in criminal law that are considered more serious than others (i.e., the non-cognizable and bailable offences). It is noteworthy that while the Indian Penal Code, 1860 ('IPC') and other laws may penalize an offence by categorizing it as non-cognizable and non-bailable, or as cognizable and bailable, but typically, offences are categorized as either 'cognizable and non-bailable' or 'non-cognizable and bailable'. The former denotes more serious offences, while the latter covers less severe crimes.
Upon completion of an investigation where evidence implicates an individual, the police or another investigating agency files a report, commonly known as a 'chargesheet,' with the Court under s. 170 of the CrPC. The accused is then presented to the Court along with the chargesheet. The SC in Siddharth v. State of UP2 clarified that this 'custody,' does not imply typical judicial or police custody but merely ensures the accused's presence in Court. Therefore, there is no necessity to arrest the accused merely because they have been chargesheeted.
Thereafter, the Court summons the accused to appear and respond to the charges levied against him. This step aims to ensure the accused's participation in the trial, facilitating the continuation of proceedings in their presence. At this point, a critical question arises: Must the court necessarily take the accused into custody upon their first appearance, thereby requiring them to file a bail application for their release? Alternatively, could the accused submit a bond under s. 88 of the CrPC, guaranteeing their appearance, potentially without sureties, and thereby continue participating in the trial?
AHC's Decision in Amar Mani Tripathi
The recent decision of the AHC in the case of Amar Mani Tripathi v. State of U.P.3 has held the following in regard to cognizable and non-bailable offences:
- Since cognizable and non-bailable offences are grave and serious, an accused cannot be joined to the trial through bonds for appearance under s. 88 of the CrPC.
- The appropriate procedure would be to file a bail application under s. 439 of the CrPC.
- The bail application should be decided as per the law laid down by the SC in the Satender Kumar Antil decision.
Now, the law regarding the procedure to be followed by courts in cases where the investigation agency has not arrested the accused and filed its chargesheet has been well settled by the SC in a series of decisions in Satendra Kumar Antil v. CBI. In this regard, the decisions of the SC in Satender Kumar Antil v CBI4 ('Antil-1') and Satender Kumar Antil v CBI5 ('Antil-2') hold significance. While the decision of the SC in Antil-1 categorizes various offences under four (4) categories, Antil-2 is a detailed guideline document on various aspects pertaining to bail, bonds, and related aspects. Considering the importance of these rulings, they serve as crucial references for analysing the legal position surrounding bonds under s.88 of the CrPC.
Guidelines in Antil's Decisions
The SC, in Antil-2, has elaborately referred to and laid down the following guidelines regarding, s. 88 of the CrPC:
- The SC reiterated its decision in the case of Siddharth v State of UP (supra) and emphasized that strict compliance with this decision is mandatory. It was affirmed that in cases where the prosecution does not require the custody of the accused, there is no necessity for an arrest under s. 170 of the CrPC. Further, there is not even a requirement to file a bail application, as the accused is merely being forwarded to the Court for the framing of charges and the issuance of process for the trial. It was held that the Court may utilize the provisions of s. 88 of the CrPC to take bonds and ensure the presence of the person during the trial.
- Upon the appearance of the accused in the Court, it is not mandatory for the person to be taken into custody. The Court must assess the merits of the case to determine whether to take the person into custody.
- If the Court decides not to take the person into custody, it may rely on s. 88 of the CrPC and accept a bond for appearance. In paragraph 43 of its decision, the SC held that "If the Court is of the view that there is no need for any remand, then the Court can fall back upon section 88 of the Code and complete the formalities required to secure the presence of the accused for the commencement of the trial."
- If the Court deems that a remand or custody is necessary, it must give the accused an opportunity to be heard. Paragraph 43 of the SC's decision further clarified that: "Of course, there may be a situation where a remand may be required, it is only in such cases that the accused will have to be heard. Therefore, in such a situation, an opportunity of being heard will have to be given to the accused persons, if the Court is of the prima facie view that the remand would be required.", and also held that "Suffice it to state that for due compliance of Section 170 of the Code, there is no need for filing of a bail application.".
- While issuing process (summons/warrant) under s. 204 of the CrPC, the Court should resort to s. 88 of the CrPC. In paragraph 46 of its decision, the SC held that "Section 204 of the Code speaks of issue of process while commencing the proceeding before the Magistrate. ... As this provision gives a discretion, and being procedural in nature, it is to be exercised as a matter of course by following the prescription of Section 88 of the Code.".
- Even while committing a case to the Sessions Court, the Magistrate can accept bonds for appearance under s. 88 of the CrPC. In paragraph 47 of its decision, the SC held that "As we have already dealt with the definition of bail, which in simple parlance means a release subject to the restrictions and conditions, a Magistrate can take a call even without an application for bail if he is inclined to do so. In such a case he can seek a bond or surety and thus can take recourse to Section 88. However, if he is to remand the case for the reasons to be recorded, then the said person has to be heard."
Thus, the SC held that it may not be necessary for the Court to take the person into custody. In such cases, the Court has two options: (i) it may instruct the accused to join the trial and ensure their presence on subsequent dates or proceedings, or (ii) it may accept a bond for appearance under s. 88 of the CrPC.
Alternatively, the court may conclude that taking the person into custody is necessary. In such instances, the court must hear the accused and subsequently pass an order regarding bail.
With its detailed discussion and guidelines concerning s. 88 bonds for appearance, the SC has succinctly established the law regarding such bonds. It is clear that the decisions in Satender Kumar Antil pertain only to cognizable and non-bailable offences (for bailable offences, these decisions and their rationales do not apply). Notably, the AHC's decision is sub-silentio on the guidelines laid down in Antil's decisions by the SC. It presumes that in cases involving cognizable and non-bailable offences, custody of the accused is necessary and hence bail under s. 439 of the CrPC is the appropriate remedy.
For completeness, the impact on cases in subordinate Courts in Uttar Pradesh, where bonds under s. 88 of the CrPC have already been accepted, warrants further discussion. The decision of the AHC in Amar Mani Tripathi should not serve as a reason to cancel or forfeit such bonds because persons have already joined the trial and are beyond the stage of first appearance or s. 170 of the CrPC. Further, they may not be in breach of any of the bond conditions to attract consequences regarding forfeiture of bonds under s. 446A of the CrPC. Overall, the cancellation of bonds in such cases would not serve any beneficial or necessary purpose to the trial.
Conclusion
The appropriate test for the applicability of s. 88 of the CrPC is not the nature of the offence (whether cognizable or non-bailable), but rather the Court's determination of the need to take the accused into custody based on the specific facts of the case. It is important to appreciate that there is no provision in CrPC which mandates the accused into custody upon appearance in the Court. S. 170 of the CrPC, which might have been assumed to imply mandatory custody upon the filing of a chargesheet, has been authoritatively interpreted in Siddharth v. State of UP (supra) to suggest otherwise. Thus, the requirement for an accused to apply for bail upon appearance in court is contrary to the law and contradicts the guidelines established in the Antil decisions.
In an abundance of caution, and as an alternative measure, the accused may choose to file a joint application under s. 88 r/w s. 439 of the CrPC before the Trial Court. This joint bonds-cum-bail application is filed with the hope that should the Court reject the request for accepting bonds, it may consider granting bail as an alternate relief. The success of such an application depends on the particular facts and circumstances of each case and, in instances where there is uncertainty about the Court's decision regarding custody, this approach may prove effective.
Footnotes
1. Application u/s 482 No.-3614 of 2024 vide order dated 22.03.2024.
2. (2022) 1 SCC 676
3. Application u/s 482 No.-3614 of 2024 (order dated 22.03.2024)
4. (2021) 10 SCC 773, dated 07.10.2021.
5. 2022 SCC OnLine SC 825 dated 11.07.2022.
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