Constitutional Bail Jurisprudence under BNSS and Special Statutes

1. Contextual Foundations: Article 21 and the Architecture of Liberty

In the Indian criminal justice system, bail is the primary instrument through which the guarantee of personal liberty under Article 21 is made real at the trial‑court level. The Supreme Court, beginning with State of Rajasthan v. Balchand and Gudikanti Narasimhulu, has consistently affirmed that “bail is the rule and jail is the exception”, subject only to clearly articulated risks such as absconding, witness intimidation, or repeated offending.

For a District Judge, the adjudication of bail is therefore not a matter of discretion in the loose sense, but a structured constitutional function: to balance individual liberty and the presumption of innocence against the State’s obligation to maintain public order and ensure a fair trial. The trial court becomes the first and most important “custodian of the sword of justice”, ensuring that pre‑trial detention remains a protective measure, not a pre‑emptive punishment.

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Bombay HC: Police must supply copy of Complaint to accused along with notice U/S 41A of CRPC /S 35 of BNSS

 In the aforesaid backdrop, we are of the opinion that a practice of issuing notices to the individuals/noticees, asking them to attend the inquiry without furnishing the details of the complaint and/or copy of the complaint, violates the mandate of Article 20 Sub Clause 3 of the Constitution of India and is also contrary to the principles of natural justice. {Para 10}

11. Therefore, in our Writ jurisdiction under Article 226 of

the Constitution of India, we are constrained to issue the following

directions to be complied with by all the police authorities within the

State of Maharashtra :

(i) Whenever any person is so summoned with a direction to

participate in the inquiry, whether prior to registration of FIR or

otherwise, the concerned officer shall, as a general rule, shall furnish

a copy of complaint received by the police, along with said notice.

(ii) In cases where it is not feasible to furnish a copy of the

complaint, the notice shall mandatorily contain or annex a separate

sheet mentioning clear and sufficient gist of the allegations levelled

against the individual so summoned, so as to enable the person to

understand the nature of the inquiry that is being held against him.

(iii) Any deviation from the requirement of furnishing complaint

or its narration in a gist, shall be only in rare and peculiar

circumstances where disclosure would seriously prejudice the ongoing investigation or endanger the safety of the complainant or

witnesses. In such cases, if the police officer is of the said opinion,

the reasons for not disclosing the details of the complaint, shall be

recorded in writing by the officer concerned.

12. We, therefore, direct that the Director General of Police,

State of Maharashtra, to circulate this order to all the Commissioners

of Police and Superintendents of Police, forthwith and to ensure its

due implementation in letters and spirit, so as to protect the

constitutional guarantee to every citizen even though he is accused of

committing an offence.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.1703 OF 2026

Ajay Prakashchand Agarwal Vs State of Maharashtra and Ors.

CORAM : RAVINDRA V. GHUGE &

HITEN S. VENEGAVKAR JJ.

DATE : 15th APRIL, 2026.

Citation: 2026:BHC-AS:18137-DB

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Supreme Court's Categorized Bail Guidelines: Satender Kumar Antil vs. CBI (2021 and 2022)

 This Supreme Court judgment in Satender Kumar Antil vs. CBI (2021) established crucial bail guidelines that streamline the bail process for different categories of offenses. Here's a simplified breakdown: 

Key Concept

The Supreme Court created a categorized approach to bail applications to reduce unnecessary litigation and provide clarity to lower courts. These guidelines apply only when specific conditions are met.

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Safeguarding Individual Liberty: Understanding Sections 41 and 41A of CrPC and Their BNSS Counterparts

Understanding Section 41 of CrPC: Power of Arrest Without Warrant

Section 41 of CrPC empowers police officers to arrest individuals without a warrant under specific circumstances. The provision covers various scenarios including when a person commits a cognizable offense in the officer's presence or when there's reasonable complaint, credible information, or suspicion regarding offenses punishable with imprisonment up to seven years.

Key Requirements for Arrest:

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Supreme Court: Accused Entitled To Bail If Arrest Was In Breach Of Sections 41, 41A CrPC

 b) The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.

c) The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the Accused for grant of bail.

IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 

 Satender Kumar Antil  Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022.

Read full judgment here: Click here.

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Karnataka HC: Notices U/S 35 of BNSS must contain specific information including crime number, alleged offense, and a copy of the FIR, otherwise it will be invalid

13. It is made clear that till the guidelines/check list is so notified by the State, if any person is necessary to be summoned, the drill that shall be followed are:-

(a) The notice under Section 35 of the BNSS shall mention the crime number and the offence alleged in the crime number. This can be communicated to the noticee either through the conventional method or through electronic mode.

(b) The communication shall attach copy of the FIR so registered, as the FIR would contain the gist of the complaint.

(c) In the event notice does not contain the crime number, the offence alleged or appending of the FIR, subject to just exceptions, the noticee is not obliged to appear before the officer who has directed him to appear and no coercive action can be taken for non-appearance.

(d) It is also necessary for the Police Department to bring about robust system for the FIR being uploaded immediately on their registration and make it search friendly. 

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Writ Petition No. 15125 of 2024 (GM - RES)

Decided On: 19.07.2024

Tavaragi Rajashekhar Shiva Prasad Vs. The State of Karnataka and Ors.

Hon'ble Judges/Coram:

Maheshan Nagaprasanna, J.

Citation: MANU/KA/4446/2024.

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Supreme court: Police Shouldn't Serve S.41A CrPC/S.35 BNSS Notice Through WhatsApp Or Electronic Means

 Having heard the parties and having deliberated upon the aforesaid submissions, this Court in furtherance of Paras. 100.2, 100.8 and 100.9 of Satender Kumar Antil v. CBI & Anr. (2022) 10 SCC 51, and its previous directions contained in earlier orders, deems it necessary to issue the following directions :

a) All the States/UTs must issue a Standing Order to their respective Police machinery to issue notices under Section 41-A of CrPC, 1973/Section 35 of BNSS, 2023 only through the mode of service as prescribed under the CrPC, 1973/BNSS, 2023. It is made amply clear that service of notice through WhatsApp or other electronic modes cannot be considered or recognised as an alternative or substitute to the mode of service recognised and prescribed under the CrPC, 1973/BNSS, 2023.

b) All the States/UTs while issuing Standing Orders to their respective Police machinery relating to Section 41-A of CrPC, 1973/Section 35 of BNSS, 2023 must be issued strictly in accordance with the guidelines issued by the Delhi High Court in Rakesh Kumar v. Vijayanta Arya (DCP) & Ors., 2021 SCC Online Del 5629 and Amandeep Singh Johar v. State (NCT Delhi), 2018 SCC Online Del 13448, both of which were upheld by this Court in Satender Kumar Antil v. CBI & Anr. (2022) 10 SCC 51.

c) All the States/UTs must issue an additional Standing Order to their respective Police machinery to issue notices under Section 160 of CrPC, 1973/Section 179 of BNSS, 2023 and Section 175 of CrPC, 1973/Section 195 of BNSS, 2023 to the accused persons or otherwise, only through the mode of service as prescribed under the CrPC, 1973/BNSS, 2023.

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Miscellaneous Application No. 2034/2022 in MA 1849/2021 in

SLP(Crl) No. 5191/2021

SATENDER KUMAR ANTIL Vs CENTRAL BUREAU OF INVESTIGATION & ANR. 

Date : 21-01-2025 These applications were called on for hearing

today.

CORAM :

HON'BLE MR. JUSTICE M.M. SUNDRESH

HON'BLE MR. JUSTICE RAJESH BINDAL

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Supreme Court: Police Shouldn't Serve S.41A CrPC/S.35 BNSS Notice Through WhatsApp Or Electronic Means

 DIRECTIONS

Having heard the parties and having deliberated upon the aforesaid submissions, this Court in furtherance of Paras. 100.2, 100.8 and 100.9 of Satender Kumar Antil v. CBI & Anr. (2022) 10 SCC 51, and its previous directions contained in earlier orders, deems it necessary to issue the following directions :

a) All the States/UTs must issue a Standing Order to their respective Police machinery to issue notices under Section 41-A of CrPC, 1973/Section 35 of BNSS, 2023 only through the mode of service as prescribed under the CrPC, 1973/BNSS, 2023. It is made amply clear that service of notice through WhatsApp or other electronic modes cannot be considered or recognized as an alternative or substitute to the mode of service recognized and prescribed under the CrPC, 1973/BNSS, 2023.

b) All the States/UTs while issuing Standing Orders to their respective Police machinery relating to Section 41-A of CrPC, 1973/Section 35 of BNSS, 2023must be issued strictly in accordance with the guidelines issued by the Delhi High Court in Rakesh Kumar v. Vijayanta Arya (DCP) & Ors., 2021 SCC Online Del 5629 and Amandeep Singh Johar v. State (NCT Delhi), 2018 SCC Online Del 13448, both of which were upheld by this Court in Satender Kumar Antil v. CBI & Anr. (2022) 10 SCC 51.

 S U P R E M E C O U R T O F I N D I A

 RECORD OF PROCEEDINGS

Miscellaneous Application No. 2034/2022 in MA 1849/2021 in

SLP(Crl) No. 5191/2021

SATENDER KUMAR ANTIL Vs  CENTRAL BUREAU OF INVESTIGATION & ANR. 

CORAM :

HON'BLE MR. JUSTICE M.M. SUNDRESH

 HON'BLE MR. JUSTICE RAJESH BINDAL

Date : 21-01-2025 These applications were called on for hearing

today.

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Bombay HC: Police can not arrest accused unless requirement of S 41A(3) Cr.P.C is satisfied

 The arrest on 23.12.2022 was not on the basis of any additional material discovered in the course of the investigation, but was based on the same material which was within the knowledge of the Investigating Officer at the time of issuance of notice under Section 41A. Such routine arrest without application of mind and due regard to the law amounts to an abuse of power and does not satisfy the requirement of Section 41A(3) Cr.P.C.

{Para 30}

31. To sum up, the Investigating agency has not been able to demonstrate existence of circumstances or supportive material on the basis of which the decision to arrest was taken. Absence of

such circumstances, information or material which is the sine qua non for the decision of arrest reduces the provision a dead letter and renders the arrest illegal.

33. Under the circumstances, and for the reasons supra, the arrest  of the petitioners is held to be illegal for breach of mandatory provision under Section 41A Cr.P.C. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO. 378 OF 2023

Chanda Kochhar Vs Central Bureau of Investigation

CORAM : ANUJA PRABHUDESSAI, & N. R. BORKAR, JJ.

DATED : 6th FEBRUARY, 2024.

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Whether police can say that accused is not co-operating if he is exercising his right to remain silent?

 It is relevant to note that though it is within the powers of the

Investigating Agency to interrogate, the accused has a right to

remain silent. The right to silence emanates from Article 20(3) of

the Indian Constitution, which gives an accused the right against

self incrimination. Suffice it to say that exercise of the right to

remain silent cannot be equated with non co-operation. {Para 29}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO. 378 OF 2023 WITH

INTERIM APPLICATION NO. 804 OF 2023

Chanda Kochhar Vs Central Bureau of Investigation

CORAM : ANUJA PRABHUDESSAI, &

N. R. BORKAR, JJ.

DATED : 6th FEBRUARY, 2024.

Read full Judgment here: Click here.

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Bombay HC: It is duty of the court to ensure that subjective satisfaction of investigating officer for arrest of accused is on factual basis and not on the basis of his whims or caprice

   There can be no dispute that it is within the domain of the Investigating Agency to interrogate the accused and to arrive at a subjective satisfaction on the issue of arrest. We are conscious and mindful that the satisfaction of the investigating agency is

subjective in nature and the Court cannot go into the reasonableness

of the reasons of arrest and or substitute its objective opinion for

the subjective satisfaction. Nevertheless, the subjective satisfaction is not wholly immune from judicial reviewability. The Court can consider whether the reasons for deprivation of liberty are rational, reasonable or fanciful. In Barium Chemicals Ltd vs. Company law Board the Apex Court with reference to Section 237 of the Companies Act has observed that the Court cannot go into the question of aptness or sufficiency of the grounds upon which the subjective satisfaction of an authority is based. However, the entire process is not subjective. While the existence of relevant

material/information is objective, whereas drawing inference

therefrom alone is a subjective process. Only check upon the

subjective power is the existence of circumstances/material

information. In case it is established that there was no material

information or factual basis, the exercise of power becomes illegal. It is thus within the powers of the Court to ensure that the subjective satisfaction is on factual basis and not on the basis of the whims or caprice of the investigating agency. {Para 27}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO. 378 OF 2023 WITH

INTERIM APPLICATION NO. 804 OF 2023

Chanda Kochhar Vs Central Bureau of Investigation

CORAM : ANUJA PRABHUDESSAI, &

N. R. BORKAR, JJ.

DATED : 6th FEBRUARY, 2024.

Read full Judgment here: Click here.

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Whether the court should release accused on bail if he is arrested in breach of S 41A of CRPC?

 The arrest on 23.12.2022 was not on the basis of any additional material discovered in the course of the investigation, but was based on the same material which was within the knowledge of the Investigating Officer at the time of issuance of notice under Section 41A. Such routine arrest without application of mind and due regard to the law amounts to an abuse of power and does not satisfy the requirement of Section 41A(3) Cr.P.C. {Para 30}

31. To sum up, the Investigating agency has not been able todemonstrate existence of circumstances or supportive material on the basis of which the decision to arrest was taken. Absence of

such circumstances, information or material which is the sine qua non for the decision of arrest reduces the provision a dead letter and renders the arrest illegal.

33. Under the circumstances, and for the reasons supra, the arrest of the petitioners is held to be illegal for breach of mandatory provision under Section 41A Cr.P.C. Hence the petition is allowed in terms of prayer clause (b). The Interim bail granted by order dated 9.1.2023 is confirmed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO. 378 OF 2023 WITH

INTERIM APPLICATION NO. 804 OF 2023

Chanda Kochhar Vs Central Bureau of Investigation

CORAM : ANUJA PRABHUDESSAI, &

N. R. BORKAR, JJ.

DATED : 6th FEBRUARY, 2024.

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Can the appellate court give the benefit of S 436A of CRPC to the accused when criminal appeal or revision is pending?

 Section 436A of the Code has been inserted by Act 25 of 2005. This provision has got a laudable object behind it, particularly from the point of view of granting bail. This provision draws the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the Accused during the investigation, inquiry and trial. We have already explained that the word 'trial' will have to be given an expanded meaning particularly when an appeal or admission is pending. Thus, in a case where an appeal is pending for a longer time, to bring it Under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision.

{Para 46}

IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 

 Satender Kumar Antil Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022.

Read full Judgment here: Click here

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Supreme Court: The Courts should give expanded interpretation to S 436A of CRPC for expediating release of the accused on bail

 Section 436A of the Code

436A. Maximum period for which an undertrial prisoner can be detained.-- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:

Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:

Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

Explanation.--In computing the period of detention under this Section for granting bail, the period of detention passed due to delay in proceeding caused by the Accused shall be excluded.

46. Section 436A of the Code has been inserted by Act 25 of 2005. This provision has got a laudable object behind it, particularly from the point of view of granting bail. This provision draws the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the Accused during the investigation, inquiry and trial. We have already explained that the word 'trial' will have to be given an expanded meaning particularly when an appeal or admission is pending. Thus, in a case where an appeal is pending for a longer time, to bring it Under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision.

47. Under this provision, when a person has undergone detention for a period extending to one-half of the maximum period of imprisonment specified for that offense, he shall be released by the court on his personal bond with or without sureties. The word 'shall' clearly denotes the mandatory compliance of this provision. We do feel that there is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the Accused. We are also conscious of the fact that while taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. Once again, we have to reiterate that 'bail is the Rule and jail is an exception' coupled with the principle governing the presumption of innocence. We have no doubt in our mind that this provision is a substantive one, facilitating liberty, being the core intendment of Article 21. The only caveat as furnished under the Explanation being the delay in the proceeding caused on account of the Accused to be excluded.

29.1.4. As a supplement to Section 436-A, but consistent with the spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such undertrial must be released on personal bond. Such an assessment must be made by the trial courts concerned from time to time;

IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 

 Satender Kumar Antil Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022.

Read full Judgment here: Click here

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What is the difference between Section 439 and Section 389 of the Code of Criminal Procedure?

  It may be seen that there is a marked difference between the procedure for consideration of bail Under Section 439, which is pre-conviction stage and Section 389 Code of Criminal Procedure, which is post-conviction stage. In case of Section 439, the Code provides that only notice to the public prosecutor unless impractical be given before granting bail to a person who is Accused of an offence which is triable exclusively by the Court of Sessions or where the punishment for the offence is imprisonment for life; whereas in the case of post-conviction bail Under Section 389 Code of Criminal Procedure, where the conviction in respect of a serious offence having punishment with death or life imprisonment or imprisonment for a term not less than ten years, it is mandatory that the appellate court gives an opportunity to the public prosecutor for showing cause in writing against such release. {Para 13}

14. ...in case the appellate court is inclined to consider the release of the convict on bail, the public prosecutor shall be granted an opportunity to show cause in writing as to why the Appellant be not released on bail. Such a stringent provision is introduced only to ensure that the court is apprised of all the relevant factors so that the court may consider whether it is an appropriate case for release having regard to the manner in which the crime is committed, gravity of the offence, age, criminal antecedents of the convict, impact on public confidence in the justice-delivery system, etc. Despite such an opportunity being granted to the Public Prosecutor, in case no cause is shown in writing, the appellate court shall record that the State has not filed any objection in writing. This procedure is intended to ensure transparency, to ensure that there is no allegation of collusion and to ensure that the court is properly assisted by the State with true and correct facts with regard to the relevant considerations for grant of bail in respect of serious offences, at the post-conviction stage.

IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 

 Satender Kumar Antil Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022.

Read full Judgment here: Click here

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Supreme Court: Under which circumstances do the Magistrate may issue a Non-bailable Warrant

 When non-bailable warrants should be issued

53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when:

• it is reasonable to believe that the person will not voluntarily appear in court; or

• the police authorities are unable to find the person to serve him with a summon; or

• it is considered that the person could harm someone if not placed into custody immediately.

54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the Accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.

55. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the Accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the Accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.

56. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an Accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided.

57. The court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant.

IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 

 Satender Kumar Antil Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022.

Read full Judgment here: Click here

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Supreme Court: Precaution which Magistrate should take before authorizing detention of accused

 The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner.

8.2. Before a Magistrate authorises detention Under Section 167 Code of Criminal Procedure, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty-bound not to authorise his further detention and release the Accused. In other words, when an Accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that the condition precedent for arrest Under Section 41 Code of Criminal Procedure has been satisfied and it is only thereafter that he will authorise the detention of an Accused.

8.3. The Magistrate before authorising detention will record his own satisfaction, may be in brief but the said satisfaction must reflect from his order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an Accused from tampering with evidence or making inducement, etc. the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording his satisfaction in writing that the Magistrate will authorise the detention of the Accused.

We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Code of Criminal Procedure for effecting arrest be discouraged and discontinued.

IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 

 Satender Kumar Antil Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022.

Read full Judgment here: Click here

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What conditions can the court impose while cancelling the NBW issued against the accused in his absence?

d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of Accused, if such an application is moved on behalf of the Accused before execution of the NBW on an undertaking of the Accused to appear physically on the next date/s of hearing.

e) Bail applications of such Accused on appearance may be decided w/o. the Accused being taken in physical custody or by granting interim bail till the bail application is decided.

IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 

 Satender Kumar Antil Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022, (2022) 10 SCC 51

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Supreme Court Guidelines for releasing accused or convict on bail- Satender Kumar Antil Vs.CBI

SUMMARY/CONCLUSION

73. In conclusion, we would like to issue certain directions. These directions are meant for the investigating agencies and also for the courts. Accordingly, we deem it appropriate to issue the following directions, which may be subject to State amendments.:

a) The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.

b) The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.

c) The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the Accused for grant of bail.

d) All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed Under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020, to comply with the mandate of Section 41A of the Code.

e) There need not be any insistence of a bail application while considering the application Under Section 88, 170, 204 and 209 of the Code.

f) There needs to be a strict compliance of the mandate laid down in the judgment of this Court in Siddharth (supra).

g) The State and Central Governments will have to comply with the directions issued by this Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.

h) The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release.

i) While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind.

j) An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh (supra), followed by appropriate orders.

k) Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.

 IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 

 Satender Kumar Antil  Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022

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Supreme court: No automatic arrest in offence U/S 498A of IPC

In order to prevent unnecessary arrest and causal and mechanical detention, the Court has issued following  directions :

a)      All  the  State  Governments  to  instruct  its  police  officers   not   to automatically arrest  when  a  case  under  Section  498-A  of  the  IPC  is registered but to satisfy themselves about the necessity  for  arrest  under the parameters laid down above flowing from Section 41, Cr.PC;

b)      All police officers be provided with a check list containing specified  sub- clauses under Section 41(1)(b)(ii);

c)     The police officer shall forward the check list duly filed and  furnish  the reasons   and   materials   which    necessitated    the    arrest,    while forwarding/producing  the  accused  before  the   Magistrate   for   further detention;

d)     The Magistrate while authorising detention of the accused shall  peruse  the report furnished by the police officer in terms  aforesaid  and  only  after recording its satisfaction, the Magistrate will authorise detention;

e)      The decision not to arrest  an  accused,  be  forwarded  to  the  Magistrate within two weeks from the date of the institution of the case  with  a  copy to the Magistrate which may be extended by the Superintendent of  police  of the district for the reasons to be recorded in writing;

f)       Notice of appearance in terms of Section 41A  of  Cr.PC  be  served  on  the accused within two weeks from the date of institution  of  the  case,  which may be extended by the Superintendent of Police  of  the  District  for  the reasons to be recorded in writing;

g)      Failure to comply with the directions aforesaid shall apart  from  rendering the police officers concerned liable for  departmental  action,  they  shall also be liable to be punished for contempt of court to be instituted  before High Court having territorial jurisdiction.

h)      Authorising  detention  without  recording  reasons  as  aforesaid  by   the judicial Magistrate concerned shall be liable  for  departmental  action  by the appropriate High Court.

i)        We hasten to add that the directions aforesaid shall not only apply  to  the cases under  Section  498-A  of  the  I.P.C.  or  Section  4  of  the  Dowry Prohibition Act, the case in hand, but also  such  cases  where  offence  is punishable with imprisonment for a term which may be less than  seven  years or which may extend to seven years; whether with or without fine.

j)        We direct that a copy of this  judgment  be  forwarded  to  the  Chief Secretaries as also the  Director  Generals  of  Police  of  all  the  State Governments and the Union Territories and the Registrar General of  all  the High Courts for onward transmission and ensuring its compliance “

Supreme Court of India

Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014

Bench: Chandramauli Kr. Prasad, Pinaki Chandra Ghose

CRIMINAL APPEAL NO. 1277 OF 2014

AIR 2014 2756 : 2014 (8) SCR 128 : 2014 (8) SCC 273 : 2014 (7) JT 527 : 2014 (8) Scale 250

Chandramauli Kr. Prasad 

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