Nathu Singh Vs State Of UP & Ors 2012 And Ompal Singh Vs State Of UP & Ors 2010

DATE OF JUDGEMENT:
28th May 2021

JUDGES:
Chief Justice N V Ramana and Justices Surya Kant and Aniruddha Bose

SUBJECT

The following judgment deals with Section -438 of C.r. P.C,1974 and whether High Courts can grant protection to the accused while dismissing anticipatory bail plea in exceptional circumstances. The Supreme Court noted that the apex court might exercise its power under Article 142 of the Constitution to pass such an order.

AN OVERVIEW

• The present Criminal Appeals, by way of Special Leave, raises a common question of law and are being disposed of together.
• In both the impugned order, the High Court of Allahabad, while dismissing the anticipatory bail application of the accused, granted them 90 days to surrender before the Trial Court tolook for customary bail and to protect them from any coercive action.
• The respondents in both the cases approached the High Court under Section 438, of C.r.P.C, during the ongoing investigation, and sought protection from arrest.
• The counsel for the appellants urged that once the High Court declined the final relief of prearrest to the respondents, it could not grant them any further protection as stated under Section-438 of Cr.P.C.
• On the contrary, learned counsel for the respondents justified the discretion exercised by the High Court and submitted that the High Court has the power to pass such orders, in the interest of justice.
• The Supreme Court stated that High Court had made a grave error in passing such protection to the respondents and thus the bench allowed the appeals to be filed against the order.

IMPORTANT PROVISIONS

• Article-142 of the constitution- Article 142 of the Constitution grants the Supreme Court the power of passing any decree to provide “complete justice”.
• Article 21 of the constitution - It is the right to life and personal liberty and it states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”.
• Section- 438 of the Code of Criminal Procedure, 1973 - Provides the Direction for grant of bail to person apprehending arrest.

ISSUES

The following are the major issues framed by the Supreme Court-

• Whether the protection granted by the High Court of Ahmedabad to the accused while dismissing the anticipatory bail plea is valid

ANALYSIS OF THE JUDGEMENT

The appellant filed the appeal by special leave against the judgment of the High Court of Allahabad, whose division bench in both the cases had dismissed the anticipatory bail application of the respondents but gave 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 grant of such relief, the complainants in both the matters appealed to the Supreme Court. The Supreme Court held that as only a question of law is being raised, this Court does not need to advert to the facts of both the matters extensively. It is sufficient to point out that:-

1. In the first case, of Nathu Singh, the appellant’s daughter was married to the respondent who died under suspicious circumstances in her matrimonial home and the complainant was registered under sections 304B and 498A of IPC along with Sections 3 and 4 of the Dowry Prohibition Act.
2. In the second case, the allegations are that the appellant’s brother and the latter’s two sons were attacked by the respondents in that case, due to a dispute between the parties relating to the encroachment of land. Both sons were attacked, with one of them suffering a skull fracture because of which he went in a coma for one week. The other had lacerations on his head. The complainant registered under Sections 307, 504, and 34, IPC.
3. The respondents in both the cases approached the High Court under Section 438, Cr.P.C., during the ongoing investigation, and sought protection from arrest the High Court dismissed the applications of the respondents but granted them the aforementioned relief. The court further stated that having heard learned counsel for the parties and upon the examination of the material brought on record as well as the complicity of the accused, this Court does not find any exceptional ground to exercise its discretionary jurisdiction under Section 438 Cr.P.C. However, because of the entirety of facts and circumstances of the case and on the request of learned counsel for the applicants, it is directed that in case the applicants surrender before the court within 90 days and apply for bail, it will be considered and decided as per the law laid by this Court in the case of Amrawati and another v. State of U.P. reported as well as a judgment passed by Hon’ble Apex Court in the case of Lal Kamlendra Pratap Singh v. the State of U.P.
4. The considerations based on which the Court is to exercise its discretion to grant relief under Section 438, Cr.P.C. have been decided by this Court in consideration of various judgments and needs no restatement. The court then observed that Section 482, Cr. P.C explicitly recognizes the power of the High Court to issue relief to an applicant after dismissing their anticipatory bail. It also noted that the apex court may also exercise its power under Article 142 of the Constitution to pass such an order.
5. The bench headed by CJI Ramana comprising Justices Surya Kant and Aniruddha Bose observed that such orders should explain the reasons for issuing such protection. The Supreme Court, after analyzing the order of the High Court noted that- Firstly, after the dismissal of the anticipatory bail application, due to the nature and gravity of the offense, the High Court has granted the impugned relief to the respondents without assigning any reasons. Secondly, because the accused was granted a relief period of 90 days, the concerns of the investigating agency and complainant were completely ignored. Alsounder Section 438(1) of Cr. P.C., which necessitates that the Court pass such an exceptional discretionary protection order for the shortest duration that's reasonably required. A period of 90 days, or three months, cannot in any way be considered to be reasonable within the present facts and circumstances. Therefore, the bench put aside the protective relief granted by the supreme court to the accused.

CONCLUSION

In this case, the Supreme Court Observed that a High Court may only grant protection to the accused while dismissing anticipatory bail plea only in exceptional circumstances, where the investigating authority has made out a case for custodial investigation. In this case, the court observed that after dismissing the anticipatory bail based on the nature and gravity of the offense and then granting relief for 90 days and providing protection from any coercive action during that period without providing any specific reason was unreasonable and unjust. And also in doing so the court ignored the concerns of the investigating authority. Therefore, the bench set aside the protective relief granted by the High Court to the accused.

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