Rahul Ranjan
A 2022 judgment, Deepak Sethi v. State of Uttarakhand (‘Sethi’), seems to have gone unnoticed by many observers, but potentially opens up questions about the guidelines given in the case of Satender Antil v. Central Bureau of Investigation (‘Antil’) for Category A offences.
The Sethi judgment of the Uttarakhand High Court categorically observed that according to the fifth guideline for Category A offences, the bail applications before the trial court “…could be decided without the accused being taken in physical custody by granting him an interim bail till the bail application itself is decided, on its merits.”
This takes a different route than what was prescribed in Antil, wherein the Supreme Court (‘SC’) kept the phrase, “to be decided on merits” out when it dealt with guidelines for bail applications for Category A offences, but imbibed the same in its guidelines for Category B, C, and D offences.
In this post, the author explores the grey area in the fifth guideline for Category A offences and how courts have given subsequent rulings for cases coming under this category of offences. Through this, the author aims to find out to what extent the merit of the case has been considered for Category A cases and seeks to answer whether the omission of the phrase gives an automatic gateway for bail applications upon fulfilling certain conditions, or if scope for consideration of merits exists.
How Antil Changed the Game
The SC streamlined the process of granting bail through its guidelines given in the Antil case dated October 7, 2021. Therein, the Court addressed the common practice in the state of the petitioner where even if someone has not been arrested during the investigation, once charged by the CBI, they would practically always end up in custody. Appearing in court or applying for bail would not change that.
Finding the system to be following an incorrect position of law, the SC gave guidelines for various categories of offences ranging from Category A to Category D, classified based on the nature and associated punishment of the offences, with its applicability based on preconditions that the person is not arrested during the investigation and has cooperated throughout the same. The Category A offences, in particular, included offences which are punishable with seven years of imprisonment or less. For such offences, after the filing of the chargesheet, it is stated in the fifth guideline that “Bail Applications of such Accused on appearance may be decided without the Accused being taken in physical custody or by granting Interim Bail till the Bail Application is decided.”
Uncertainties of Grey Zone
Upon plain reading of the guidelines in the aforementioned order, it is observed that while the guideline for Category A offences is devoid of the phrase, “decided on merits”, the guidelines for subsequent Categories B, C, and D, which deal with offences punishable with more than seven years of imprisonment – punishable under Special Acts and other economic offences – respectively contain the phrase that the bail application is to be “decided on merits.”
Interestingly, in its subsequent ruling in the Antil Trilogy dated July 11, 2022, while discussing the bail jurisprudence, the SC stated, “We do make it clear that all our discussion along with the directions are meant to act as guidelines, as each case pertaining to a bail application is obviously to be decided on its own merits.” However, this does not answer why the Apex Court deliberately chose to specifically omit the phrase for Category A cases. Furthermore, in the same ruling, it held that for Category A cases, an inclination towards exercising judicial discretion in the accused’s favour regarding the determination of bail is justifiable. This begs the question of whether the SC intended for an automatic gateway upon fulfilment of certain conditions or left scope for consideration of merits in bail applications for Category A offences in its guidelines.
Deciphering the Path for Bail in Category A Offences
To understand how courts have interpreted the fifth guideline, it is imperative to go through rulings of various courts on bail applications for Category A offences. In particular, the contrasting approach taken by the Uttarakhand High Court and the Allahabad High Court while deciding such bail applications can be analysed to understand the variations in the interpretation. While the former, in its judgments, has explicitly mentioned about merits of a case, the latter has taken a different direction wherein it has limited its orders based on prima facie observations.
The Uttarakhand High Court in Mr. Mohd. Azim v. Unknown, while hearing an application under Section 482 of the Code of Criminal Procedure, refused to go into the merits of the case but ruled that the same would be a subject matter of trial. This judgment, dated August 31, 2022, had been given by the same bench which presided over the Sethi case.
The Allahabad High Court had given a few judgments that seemed to follow a certain pattern wherein bail was granted. The Court, in Ramesh Prasad v. State of U.P., granted bail to the accused based on the prima facie observations that the allegation against the accused carried a maximum punishment of three years, the other co-accused had been granted bail, the offences were alleged to be triable by the magistrate, and the accused had no criminal history. Further, it refused to make any observations on the merits of the case. On similar lines in Jitendra v. State of U.P., given by the same bench as in the previous case, the Court without making observations on the merits of the case granted bail to the accused based on prima facie observations of the case, giving weight to factors such as the nature of the crime and background of the accused.
On May 12, 2022, an interesting case Sandeep and Ors. v. State of U.P. and Ors had been dealt with by the Allahabad High Court. Initially, the Court had disposed of the anticipatory bail application directing the applicant to move an application for regular bail before the trial court within the stipulated time, wherein an appropriate order had to be passed in the light of guidelines in Antil. Subsequently, the Court, upon finding that the application was dismissed by the Chief Judicial Magistrate (‘CJM’) on the ground that the applicants were not in the custody of the Court, reiterated the mandate of the law laid down in Antil, and held that the submission of the accused to the court’s custody is not a prerequisite of bail consideration. It thus directed for a fresh bail application before the CJM with advisory, drawing the attention of the Judge to the prima facie observation of the case:
“The Chief Judicial Magistrate, Bijnor shall keep in mind that when the investigating agency has not arrested the accused persons during the course of the investigation, there is no logic in sending them to prison, till they are complying with the conditions placed by the trial court while enlarging them on bail and they are regularly attending the court.”
At the grassroots level, in State v. Brij Bhushan Singh, the Court of Additional Chief Metropolitan Magistrate granted bail to the accused charged with sexual assault/molestation. The Court relied on prima facie observations such as the accused not being arrested during the investigation, their cooperation throughout the investigation, and the investigating agency’s observation that they were not abusing their powers or attempting to tamper with the evidence.
Upon analysis of the aforementioned cases, it emerges that though in some cases the courts have stated that the merits of the case have to be considered, in practice courts have majorly relied on the two preconditions given in Antil and the prima facie observation of a case on the nature of the accusation, involvement of the applicant and scope of tampering the evidence, without attempting to find a sound conclusion about the role of the accused, while considering bail applications.
Parallels in Bail Applications under PMLA
The above analysis construes the omission of the phrase, “decided on merits” in the fifth guideline as emphasising a prima facie view of the issue while deciding bail applications after filing of the chargesheet, instead of delving into the merits of the case. This angle of approach finds a parallel in the bail plea under the Prevention of Money Laundering Act, 2002 (‘PMLA’).
PMLA is a special act enacted to address economic crimes such as money laundering and related crimes. It covers offences that fall under Category C, as laid down in Antil, wherein it is stated that bail applications for such offences are to be considered on merits, apart from additional conditions for bail mentioned in special acts such as Section 45 of the PMLA. Those additional conditions for the PMLA are provided in the form of twin conditions: reasonable grounds indicating that the accused did not commit the offence, and their likelihood to commit any offence while on bail.
Though Antil emphasises the consideration of merits, the bail jurisprudence of PMLA, before and even after Antil, has evolved to limit the scope of merits of the matter while deciding bail applications. In Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr, dated April 7, 2005, the SC held that at the stage of considering a bail application, the court’s duty is not to consider the evidence meticulously, but to give an order based on broad probabilities. Furthermore, it held that the findings in relation to the bail application may not have any bearing on the merit of the matter. It was reasoned that if the provisions for bail are construed in a manner that requires a positive finding on the part of the court that the applicant has not committed an offence under the Act, then that would preclude the prosecution from getting a judgment convicting the applicant.
Reiterating the same, the Court in Vijay Madanlal Choudhary and Ors. v. Union of India, dated July 27, 2022, stated that the court while entertaining such applications, need not delve deep into the merits of the matter, and findings based on the reasonable material available are only warranted. This ruling was based upon the interpretation of Section 45 of the PMLA in the case of Nimmagadda Prasad v. C.B.I., Hyderabad, wherein the phrase, “reasonable grounds for believing”, has been interpreted to mean that the court has to only assess the genuineness of the case against the accused, and that there is no requirement to prove the charge beyond reasonable doubt.
Based upon the aforementioned judgments, the Delhi High Court in Ramesh Manglani v. Directorate of Enforcement, dated May 30, 2023, crystallised the guidelines for bail cases under the PMLA, doing away with the need to delve deep into the merits of the case, and focussing on the prima-facie view of the case based on broad probabilities and fulfilling the twin conditions.
Upon analysis of the development of bail consideration under PMLA, it is found that even though Antil provided guidelines emphasising the consideration of merits in Category C, the courts deal with the bail matters under PMLA on a prima facie basis, without delving deep into the evidence. However, this does not mean that the guidelines of Antil are being contradicted, in the sense that the consideration of the merits of the matter is not done away with completely. The guidelines of the Delhi High Court merely limit the scope of merit consideration which is desirable, as per the interpretation of the provisions of the PMLA. The court has to rely on a preliminary assessment of merits, without a deep dive into the evidence, balancing considerations of potential flight risk, and ensuring a separate evaluation from the final trial outcome.
Navigating the Tightrope
The common approach in dealing with bail applications for offences falling under Category A has been to take a prima facie view of the matter focussing on the preconditions of Antil, the nature of the allegation, and the involvement of the applicant. This is somewhat similar to the approach of taking a prima facie view of the matter in the bail plea under the PMLA, except for the twin conditions mentioned in the special act. Apart from this, the two are connected by the fact that some authorities, be it Antil or Sethi, have emphasised merit consideration for bail applications. Courts in PMLA cases seem to have construed the significance of merit consideration in a narrow sense, taking the liberty of the fact that in Antil, the SC did not specify the degree of delving into the merits of the matter.
Notwithstanding the peculiar nature of the bail plea under the PMLA, it can be seen that just like in Antil, Sethi also does not define the extent of merit consideration. The statement of the Uttarakhand High Court, wherein it adds the phrase, “on its merits”, in the fifth guideline, can be understood as simply the crystallisation of the already existing practice of taking a prima facie view of the matter as a part of the guideline itself.
Understanding this phrase is thus key to finding an answer as to what extent the SC intended for merit consideration for bail plea under Category A. As per the approach taken by Indian courts, the omission of the phrase in the guideline for Category A cases has been interpreted as taking a prima facie view of the matter, in addition to the two preconditions set out in Antil. Simultaneously, the presence of the phrase in Category C guideline has also been treated as not having to delve deep into the matter, instead relying on available matters as seen in cases involving offences under the PMLA.
This, in turn, suggests that interpretation of the phrase, “on its merits” oscillates from taking a prima facie view to delving deep into the matter, the latter requiring the court to come up with a positive finding of the accused’s involvement. Further, it can be construed that even omission of the phrase shall entail some extent of merit consideration, however limited to taking only a prima facie view of the matter based on broad probabilities. Such construction puts the understanding of the fifth guideline in concurrence with the previously mentioned ruling dated July 11, 2022, given in Antil, wherein it is stated that bail applications have to be decided on merits.
Conclusion
The SC addressed ambiguities and wrong positions of law being followed in India in matters of bail applications through Antil, giving out comprehensive guidelines for different categories of offences. The subsequent judgments of Uttarakhand High Court brought up the question of to what degree the SC intended for merit consideration, given its omission for Category A offences. It is clear that court practices have not adopted an automatic gateway approach; rather, they primarily use a prima facie lens, assessing the two preconditions for bail and the general nature of the case.
This aligns with the understanding that even mentioning “decided on merits” in other categories, such as in the case of bail plea under the PMLA, does not necessitate a deep examination of the reasonable material available. Ultimately, the ambiguous extent of the phrase within the Antil guidelines allows flexibility, and courts likely leverage this to strike a balance between considering merits based on a prima facie view, and avoiding full-blown pre-trial scrutiny. Therefore, while the omission of the phrase might raise uncertainty, it does not imply automatic bail for Category A offences. The current trend tilts towards a prima facie approach based on preliminary merit assessment.
The author is a second-year student at National Law University, Odisha.
NUALS Law Journal 