By Nihit Nagpal and Anuj Jhawar
The Supreme Court of India in Satender Kumar Antil v. Central Bureau of Investigation dated October 7, 2021, issued guidelines for granting bail after the filing of charge sheet and held the trial courts are not precluded from granting interim relief considering the conduct of the accused during the probe.
The requisite conditions for these guidelines to be applicable are as follows:
- Accused is not arrested during the investigation.
- Accused has cooperated throughout the investigation including appearing before the Investigating Officer whenever called.
Note: If these requisite conditions are not met, then these guidelines will not be applicable when the bail application is being considered.
The Apex Court has classified the offences by type into four categories for the purposes of these guidelines:
|Categories||Types of Offences|
|Category A (General Offences)||Offences punishable with imprisonment of 7 years or less not falling in category B & D.|
|Category B (Heinous Offences)||Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.|
|Category C (Special Offences)||Offences punishable under Special Acts containing stringent provisions for bail like NDPS [Section 37] , PMLA [Section 45] , UAPA [Section 43D (5)] , Companies Act, [Section 212 (6)] , etc.|
|Category D (Economic Offences)||Economic offences not covered by Special Acts.|
The guidelines and procedure laid down by the Supreme Court of India are as follows:
Category A (General Offences)
After the charge-sheet is filed or the cognizance of complaint has been taken:
- Court will issue ordinary summons at the first instance (including permitting appearance through lawyer).
- If despite service of the summons, the accused does not appear, then Bailable Warrant for physical appearance may be issued.
- If the accused still fails to appear, then a Non-Bailable Warrant may be issued.
- If the accused moves an application before the Non-Bailable Warrant is executed with the undertaking in the application that the accused will appear physically on the next date(s) of hearing, then the Court may cancel the Non-Bailable Warrant or convert it into either a Bailable Warrant or a Summon, without insisting physical appearance of the accused.
- Court may decide the bail application of the accused on appearance without taking the accused in physical custody or by granting interim bail till the bail application is decided.
Category B/D (Heinous Offences/ Economic Offences)
On appearance of the accused in Court pursuant to any process issued, the bail application of the accused is to be decided on merits.
Category C (Special Offences)
The same condition as that for Categories B and D, along with an additional condition, i.e., after the appearance of the accused in Court, their bail application is to be decided on merits and in compliance of the specific conditions/provisions of bail provided under the Special Acts containing stringent provisions for bail like NDPS [Section 37], PMLA [Section 45], UAPA [Section 43D (5)], Companies Act, [Section 212 (6)], etc.
These guidelines issued by the Supreme Court of India needed as a direction for lower courts, when it comes to grant of the bail to the accused, when the accused has been cooperative during the investigation.
2 Section 37 – Offences to be cognizable and non-bailable.
3Section 45 – Offences to be cognizable and non-bailable.
4UAPA Section 43D (50) – Person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release.
5Section 212 (6) – If, for any reason, the Board of directors of the holding company is unable to obtain information on any of the matters required to be specified by sub- section (4), a report in writing to that effect shall be attached to the balance sheet of the holding company.