The satisfaction of the court for granting protection under Section 438 CrPC is different from the one under Section 439 CrPC while considering regular bail, the Bench said.
A three-judge bench of the Supreme Court has observed that merely because an accused was under the protection of anticipatory bail granted under Section 438 CrPC that does not mean that he is automatically entitled to regular bail under Section 439 CrPC.
Three brothers had approached the high court seeking anticipatory bail. Two of them were granted anticipatory bail by a single judge and the application of one which came before another single judge was dismissed. The one whose bail application was dismissed approached the apex court in appeal.
The Supreme Court bench observed that the single judge who dismissed the bail application was correct in observing that the coordinate bench had not taken note of the limitations under Section 37 of the NDPS Act.
“It is unfortunate that the provision has not been noticed by the High Court. And it is more unfortunate that the same has not been brought to the notice of the Court,” said the bench and directed the state to verify whether any steps have been taken for challenging the orders granting anticipatory bail to the co-accused. Thereafter, the state challenged the order granting anticipatory bail to co-accused brothers.
Then, it was submitted before that pursuant to the interim order passed by the high court, the co-accused had surrendered before the sessions court and they were released on regular bail.
The bench comprising of Justice Kurian Joseph, Justice Mohan M Shantanagoudar and Justice Navin Sinha criticised the sessions court for not taking note of the final order passed by the high court. “The Court should have enquired as to whether the matter had been finally disposed of, particularly after noticing the interim order. The casual approach adopted by the learned Sessions Judge has apparently led to the accused being released on regular bail, on the basis of the interim order passed by the High Court. When the application for anticipatory bail was the subject matter before the High Court, the accused had no business to go and surrender before the Sessions Court and seek regular bail on the basis of an interim order,” the bench observed.
No Automatic Regular Bail
The counsel for accused submitted that final order was produced before the sessions court. The bench then said: “In any case, the protection under Section 438, Cr.P.C. is available to the accused only till the court summons the accused based on the charge sheet (report under Section 173(2), Cr.P.C.). On such appearance, the accused has to seek regular bail under Section 439 Cr.P.C. and that application has to be considered by the court on its own merits. Merely because an accused was under the protection of anticipatory bail granted under Section 438 Cr.P.C. that does not mean that he is automatically entitled to regular bail under Section 439 Cr.P.C. The satisfaction of the court for granting protection under Section 438 Cr.P.C. is different from the one under Section 439 Cr.P.C. while considering regular bail.”
The bench then proceeded to set aside the high court order and observed that it ‘could not have and should not have passed the order under Sections 438 or 439 Cr.P.C. without reference to Section 37 of the NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail.’
The court also set aside the sessions court order granting regular bail and directed the accused to surrender before the trial court and the sessions court was directed to consider the matter on the merits of the application for regular bail, if made by the accused.
The police and the prosecutor that they need to show due diligence and vigilance while dealing with the cases under the NDPS Act
The bench further remarked: “We also painfully note that even in the inquiry conducted pursuant to the orders passed by this Court, there was no reference to the regular bail granted to Beant Singh and Gurwinder Singh and that too, on production of an interim order passed by the High Court. Had the same been noticed, the State would have certainly taken steps much earlier. This is once again to remind the police and the prosecutor that they need to show due diligence and vigilance while dealing with the cases under the NDPS Act.”