While laying down clearly the settled legal position and reiterating it yet again in this leading case, the Allahabad High Court in a most learned, laudable, landmark and latest judgment titled Dr. Kartikeya Sharma And 2 Others vs State of U.P. and Another in Criminal Misc Anticipatory Bail Application U/S 438 CR.P.C. No. 3107 of 2023 and cited as Neutral Citation No. – 2023 : AHC : 101507 and also cited in 2023 LiveLaw (AB) 195 has observed clearly, cogently and convincingly that an anticipatory bail application moved by an accused can never be rejected on the ground that now a charge sheet has been filed in the matter or that the court concerned has taken cognizance of the offence.

The Single Judge Bench of Hon’ble Mr Justice Nalin Kumar Srivastav while stressing that anticipatory bail can be granted at any time so long as the applicant has not been arrested clearly held that:
…even if the chargesheet is filed and cognizance is taken by the court against the accused, who has got an immunity from being arrested during the course of investigation either by way of order of a competent court protecting him by grant of anticipatory bail or by service of notice under Section 41-A Cr.P.C. by the Investigating Officer, anticipatory bail application moved by him is legally maintainable…

The Bench held so while allowing the anticipatory bail plea that was filed by 3 accused (husband, father-in-law and mother-in-law of the informant) booked under various Sections of IPC and Dowry Prohibition Act. They moved the Court after the filing of the chargesheet against them and after the Sessions Court denied granting them pre-arrest bail on the flimsy grounds that a chargesheet had been filed against them and the court concerned had taken cognizance of the same.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Nalin Kumar Srivastav of Allahabad High Court sets the ball in motion by first and foremost putting forth in para 1 that:
Rejoinder affidavit filed today is taken on record.

While spelling out the reason for moving the anticipatory bail application, the Bench discloses in para 2 that:
Apprehending their arrest in criminal case no.29542 of 2022 arising out of case crime no.1306of 2021 under Sections 498-A, 323, 354, 504, 506 IPC and 3/4 Dowry Prohibition Act, Police Station Quarsi, District Aligarh, the applicants - Dr. Kartikeya Sharma, Ajaya Kumar Sharma and Smt. Sangeeta Sharma have moved this anticipatory bail application after submission of the charge-sheet before this Court.

In hindsight, the Bench recalls in para 3 mentioning that:
The two anticipatory bail applications moved by the applicants have been rejected by the Court of Sessions Judge, Aligarh vide order dated 28.2.2023.

To put things in perspective, the Bench envisages in para 5 that:
It is alleged in the F.I.R. that the informant Dr. Pallavi Sharma was married to applicant no.1 Dr. Kartikeya Sharma on 27.11.2015 and since after the marriage, the informant was being subjected to cruelty and harassment on account of demand of Rs.2 Crore as additional dowry and she was being mentally and physically exploited by her in-laws. Her father-in-law also used criminal force to her with intent to outrage her modesty. Accused applicant no.1 is the husband, applicant no.2 is the father-in-law and applicant no.3 is the mother-in-law of the informant/opposite party no.2. F.I.R. was lodged on 28.12.2021 and investigation started.

While citing the relevant case law, the Bench hastens to add in para 8 stating that:
Reliance has been placed on the decision of the Hon’ble Supreme Court in Prem Shankar Prasad Versus State of Bihar and Another, 2021 SCC OnLine SC 955. In the facts of the aforesaid case, charge-sheet was filed under Sections 406, 420 IPC against the accused and thus it was explicit that a prima facie case against the accused was found. From the record, it revealed that the arrest warrant was issued by the Magistrate against the accused and thereafter proceedings under Sections 82, 83 Cr.P.C. had been initiated pursuant to the order passed by the Magistrate. Only thereafter the accused moved an application before the trial court for anticipatory bail, which was rejected by the Sessions Court. However, subsequently anticipatory bail was granted to the aforesaid accused by the High Court and when the matter came before the Hon’ble Apex Court, it was observed like this.

19. Despite the above observations on merits and despite the fact that it was brought to the notice of the High Court that respondent No. 2 - accused is absconding and even the proceedings under sections 82-83 of Cr. P.C. have been initiated as far as back on 10.01.2019, the High Court has just ignored the aforesaid relevant aspects and has granted anticipatory bail to respondent No. 2 - accused by observing that the nature of accusation is arising out of a business transaction. The specific allegations of cheating, etc., which came to be considered by learned Additional Sessions Judge has not at all been considered by the High Court. Even the High Court has just ignored the factum of initiation of proceedings under sections 82-83 of Cr. P.C. by simply observing that be that as it may. The aforesaid relevant aspect on grant of anticipatory bail ought not to have been ignored by the High Court and ought to have been considered by the High Court very seriously and not casually.

20. In the case of  (Supra), it is observed and held by this court that if anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr. P.C., he is not entitled to relief of anticipatory bail.

Do note, the Bench notes in para 9 that:
In rejoinder, learned counsel for the applicants further submits that the present anticipatory bail application on behalf of the applicants has been filed before this Court prior to issuance of proclamation under section 82 Cr.P.C. The proclamation u/s 82 Cr.P.C. has been issued by the court concerned on 18.4.2022, as such, meaning thereby that when the present applicants filed this application u/s 438 Cr.P.C. on 18.3.2023, they were not declared as proclaimed offenders so the bar imposed by the Hon'ble Apex Court entertaining anticipatory bail of the proclaimed offender would not attract in the present case. In support of his contention, learned counsel for the applicants has placed reliance on the decision of this Court in Manish Yadav Vs. State of U.P., 2022 Supreme (All) 629.

In that matter, anticipatory bail application was filed in the month of April, 2022 before the Sessions Court and was rejected on 30.4.2022 and proclamation under section 82 Cr.P.C. was issued by the court concerned on 9.5.2022 and it was held therein that after rejection of the anticipatory bail application, the aggrieved person has got a right to approach the High Court for such anticipatory bail and if in the interregnum period any proclamation under section 82 or section 83 Cr.P.C. is issued, it may be considered as a circumventive exercise being taken by the Investigating Officer. It was further held by the Division Bench of this Court that when the application for anticipatory bail was filed before the Sessions Court, there was no proclamation under section 82 Cr.P.C. and such proclamation was issued after the rejection of anticipatory bail application. Hence it was held that the bar to entertain anticipatory bail application after issuance of proclamation under section 82 Cr.P.C. would not be attracted in that case.

Be it noted, the Bench notes in para 10 that:
In the present case, the anticipatory bail application was rejected by the Sessions Court on 28.2.2023 and a perusal of the rejection order reveals that since then no proceedings under section 82 or 83 Cr.P.C. were started against the accused applicants after rejection of the anticipatory bail application from the Sessions Court, on 18.3.2023 the present anticipatory bail application has been moved before this Court for anticipatory bail.

It reveals from the perusal of the record that process under section 82 Cr.P.C. has been issued on 18.4.2022, which means that pending application for anticipatory bail before this Court, the said proclamation was made by the court concerned. Hence, it is clear that the present applicants were not proclaimed offenders at the time of making their application for anticipatory bail before this Court. So the bar imposed by the Hon’ble Supreme Court in Prem Shankar Prasad (supra) for not entertaining the anticipatory bail application of a proclaimed offender is not attracted in the present case.

It cannot be just glossed over that the Bench observes in para 11 that:
The alleged offences are punishable with the imprisonment of maximum period of seven years. Admittedly, proclamation u/s 82 Cr.P.C. is issued after filing of the present anticipatory bail application u/s 438 Cr.P.C. Charge-sheet has been filed in the matter. Applicants have been cooperative during the course of investigation and there is nothing on record to show otherwise. The investigating officer did not find any ground to arrest them during the course of investigation. They have not misused the liberty granted to them. Their custodial interrogation was also considered as not required by the investigating officer.

While citing a recent, remarkable and relevant case law, the Bench states in para 12 that:
In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon’ble Apex Court has settled the controversy finally by holding the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial. It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial. It has been further held by the Hon’ble Apex Court that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, likelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

As a corollary, the Bench holds in para 13 that:
Hence, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicants and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicants till end of the trial in the matter.

In addition, the Bench states in para 14 that:
The anticipatory bail application is allowed.

Most forthrightly, the Bench postulates in para 18 that:
With utter surprise to this Court even after so many directions issued by the Hon’ble Apex Court with regard to the scope of anticipatory bail, it appears that still their exists a state of confusion amongst the Sessions Courts. Right from the renowned case of Gurbaksh Singh Sibbia Vs. State of Punjab (1980) 2 SCC 565 upto the case of Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1 and even in umpteen subsequent pronouncements, it has repeatedly been held and reiterated that filing of the charge-sheet into a criminal matter is never meant that the scope of anticipatory bail comes to an end.

It is worth noting that the Bench observes in para 19 that:
The Hon’ble Supreme Court in Sushila Aggarwal (supra) case, considering the observations made by the Constitution Bench of Hon’ble Supreme Court in Gurbaksh Singh Sibbia (supra) case held as hereinunder.

We are of the opinion that the conditions can be imposed by the concerned court while granting pre-arrest bail order including limiting the operation of the order in relation to a period of time if the circumstances so warrant, more particularly the stage at which the anticipatory bail application is moved, namely, whether the same is at the stage before the FIR is filed or at the stage when the FIR is filed and the investigation is in progress or at the stage when the investigation is complete and the charge-sheet is filed. However, as observed hereinabove, the normal rule should be not to limit the order in relation to a period of time.

It was also held in the aforesaid case that to lay down strict, inflexible and rigid rules for exercise of such discretion under section 438 Cr.P.C. by limiting the period for which an order under section 438 Cr.P.C. could be granted, is unreasonable and the courts should not impose restrictions on the ambit and scope of section 438 Cr.P.C. which are not envisaged by the legislature. The Court cannot rewrite the provision of the statute in the garb of interpreting it.

Most remarkably, the Bench points out in para 19 that:
The Hon'ble Supreme Court in Sushila Aggarwal (supra) case, considering the observations made by the Constitution Bench of Hon’ble Supreme Court in Gurbaksh Singh Sibbia (supra) case held as hereinunder.

We are of the opinion that the conditions can be imposed by the concerned court while granting pre-arrest bail order including limiting the operation of the order in relation to a period of time if the circumstances so warrant, more particularly the stage at which the anticipatory bail application is moved, namely, whether the same is at the stage before the FIR is filed or at the stage when the FIR is filed and the investigation is in progress or at the stage when the investigation is complete and the charge-sheet is filed. However, as observed hereinabove, the normal rule should be not to limit the order in relation to a period of time.

It was also held in the aforesaid case that to lay down strict, inflexible and rigid rules for exercise of such discretion under section 438 Cr.P.C. by limiting the period for which an order under section 438 Cr.P.C. could be granted, is unreasonable and the courts should not impose restrictions on the ambit and scope of section 438 Cr.P.C. which are not envisaged by the legislature. The Court cannot rewrite the provision of the statute in the garb of interpreting it.

Adding more to it, the Bench states in para 20 that:
It is to be reminded that following questions had been referred to the Larger Bench of five Judges in Sushila Aggarwal (supra) case.

(1) Whether the protection granted to a person under Section 438 Cr. PC should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.

(2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.

Regarding first question, it was concluded that the protection granted under section 438 Cr.P.C. should not always or ordinarily be limited to a fixed period; it should ensure in favour of the accused without any restriction as to time. However, usual or standard conditions under section 437 (3) read with section 438 (2) may be imposed having regard to the peculiar features of a particular case.

The second question, which is pertinent for the matter in hand was answered by holding that the life of an anticipatory bail does not end generally at the time and stage when the accused is summoned by the court, or after framing of charges, but can also continue till the end of the trial. However, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.

It was further held explicitly that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial. Also orders of anticipatory bail should not be blanket in the sense that it should not enable the accused to commit further offences and claim relief. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence. and the legal dictum is more specific when it pronounces that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge-sheet till end of trial.

While continuing in the same vein, the Bench then propounds in para 21 that, The same principle echoes in Ravindra Saxena Vs. State of Rajasthan, 2010 (1) SCC 684, wherein the Hon’ble Supreme Court reiterating the verdict of the Constitutional Bench in Gurbaksh Singh Sibbia (supra) case held that anticipatory bail can be granted at any time so long as the applicant has not been arrested. When application is made to High Court or Court of Sessions, it must apply its own mind on the question and decide when the case is made out for granting such relief. The High Court ought not to have left the matter to Magistrate only on the ground that challan has now been presented...............................Salutary provision contained in Section 438 was introduced to enable the court to prevent deprivation of personal liberty. It cannot be permitted to be jettisoned on technicalities such as the challan having been presented, anticipatory bail cannot be granted.

Still more, while citing yet another case law, the Bench observes in para 22 that:
Earlier in Bharat Chaudhary Vs. State of Bihar, (2003) 8 SCC 77, it was specifically held by the Hon’ble Supreme Court that The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail.

The courts i.e. the Court of Session, High Court or Supreme Court have the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 Cr.P.C. even when cognizance is taken or a charge sheet is filed provided the facts of the case require the court to do so.

While specifying more, the Bench mentions in para 23 that:
So far as the present case is concerned, since the offences alleged against the accused applicants were punishable with imprisonment for a maximum period of seven years, a notice under Section 41-A Cr.P.C. was given to them by the Investigating Officer, which means that their custodial interrogation was not considered necessary by the Investigating Officer of the case and their personal liberty was protected till submission of police report under Section 173 (2) Cr.P.C.

Quite rightly, the Bench holds in para 24 that:
The legal consequences ensue the same, whether an accused is granted anticipatory bail till filing of police report under Section 173 (2) Cr.P.C. by the Court or a notice under section 41- A Cr.P.C. is given to him by the Investigating Officer, that the accused is not going to be arrested during the course of investigation subject to the conditions imposed upon him by the Court or terms embodied in the said notice.

Far most significantly, the Bench mandates in para 25 directing that:
From the above, it is explicitly clear that even if the chargesheet is filed and cognizance is taken by the court against the accused, who has got an immunity from being arrested during the course of investigation either by way of order of a competent court protecting him by grant of anticipatory bail or by service of notice under Section 41-A Cr.P.C. by the Investigating Officer, anticipatory bail application moved by him is legally maintainable and it can never be rejected on the ground that now charge-sheet has been filed and cognizance has been taken by the court concerned. Hence, the observation given by the learned Sessions Court while rejecting the anticipatory bail application of the applicants vide order dated 28.2.2023 is a misnomer and the settled legal position cannot be permitted to be contorted in any manner.

Finally, the Bench concludes by directing in para 26 that:
Registry is directed to send a copy of this order to the court concerned.

In a nutshell, we thus see that the Allahabad High Court has made it abundantly clear that a court can’t reject anticipatory bail plea on the grounds that chargesheet is filed or court has taken cognizance of offence. It is the bounden duty of all the courts to abide strictly by what the Allahabad High Court has held while citing the most relevant Supreme Court rulings in this leading case and rule accordingly in similar such cases. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh