Supreme Court sets aside Patna High Court's judgement granting provisional pre-arrest bail, makes bail absolute

In Sudeep Chatterjee vs State of Bihar 2024 INSC 567, Supreme Court's bench of Justices C.T. Ravikumar and Prashant Kumar Mishra observed: "We are constrained to refer to the said maxim on being pained to see that despite a catena of decisions deprecating the practice of putting onerous conditions for pre-arrest bail such orders are being passed without giving due regard to the binding precedents."

The case arose from an order of the Patna High Court whereby the High Court granted provisional pre-arrest bail in complaint case against the appellant alleging commission of offences punishable under Section 498A of the Indian Penal Code (IPC), 1860 and Section 4 of the Dowry Prohibition Act, 1961.

The appellant's application for pre-arrest bail before the Court of Sessions Judge, Katihar was dismissed. An application for an anticipatory bail was moved before the High Court against it. 

The Court drew on the decisions of the Supreme Court's Constitution Bench in Shri Gurbakash Singh Sibbia & Ors. v. State of Punjab (1980) and in Parvez Noordin Lokhandwalla v. State of Maharashtra (2020). In the latter case the Court held: “…The human right to dignity and the protection of constitutional safeguards should not become illusory by the imposition of conditions which are disproportionate to the need to secure the presence of the accused, the proper course of investigation and eventually to ensure a fair trial. The conditions which are imposed by the court must bear a proportional relationship to the purpose of imposing the conditions. The nature of the risk which is posed by the grant of permission as sought in this case must be carefully evaluated in each case.”

The Court observed that the constant and consistent view of the Court on matters granting a prayer for bail under Section 438 of  the Code of Criminal Procedure, 1973 is that "after forming an opinion, taking note of all relevant aspects, that bail is grantable, conditions shall not be put to make it impossible and impracticable for the grantee to comply with." 

Relying on the Court's decision in Parvez Noordin’s case, the Court observed that "the ultimate purpose of putting conditions while granting pre-arrest bail is to secure the presence of the accused and thus, eventually to ensure a fair trial and also for the smooth flow of the investigating process."

The Court's order reads: "we would reiterate the view that courts have to be very cautious in imposing conditions while granting bail upon finding pre-arrest bail to be grantable." 

The Court concluded that the conditions mentioned in the Patna High Court's order in paragraph 6 "for the release of the appellant on the provisional bail cannot be sustained and as such  the said conditions to give undertaking that the appellant would fulfil all physical and financial requirements by  way of an affidavit are set aside." The order of August 2, 2024 reads: The order granting the bail is made absolute and the appellant in the event of his arrest be released on bail subject to the same terms stipulated by the High Court under the impugned order regarding suretyship as also the liability to comply with conditions as laid down under Section 438(2), Cr. P.C....The impugned order stands set aside only to the aforesaid extent."

The Court cited the maxim ‘Lex non cogit ad impossibilia’ which means ‘the law does not compel a man to do what he cannot possibly perform’. 

Supreme Court sets aside Patna High Court's order in anticipatory bail case from Darbhanga

In Dulare Choudhary Vs. State of Bihar (2024), the Supreme Court's bench of Justices B.V. Nagarathna and Augustine  George Masih set aside the final judgment and order of Justice Anjani Kumar Sharan of the Patna High Court on February 23, 2024 after hearing the appeal challenging the High Court's order. 

The counsel for the appellant submitted that the First Information Report in the instant case is nothing but a second Report lodged on the same facts as was lodged on earlier occasion wherein the appellant stood enlarged on anticipatory bail vide order dated 31.08.2021 annexed to the petition as Annexure-P/7. He also referred to the order granting anticipatory bail passed by the High Court in the case of co-accused in Crl. Misc. No.1400/2023 dated 08.02.2023, annexed to the petition as Annexure-P/12. This order was also passed in Ram Dinesh Rai Vs. State of Bihar (2023) by Justice Anjani Kumar Sharan of Patna High Court.

The Supreme Court observed: "Considering the circumstances on record, in our view, the appellant is entitled to the relief claimed under Section 438 of the Code. We, therefore, allow this appeal, set-aside the order passed by the High Court and make the order dated 28.08.2023 absolute. We direct that in the event of arrest of the appellant, the Arresting Officer shall release the appellant on bail subject to furnishing cash security in the sum of Rs.25,000/- (Rupees Twenty-Five Thousand Only) with two like sureties."  

Section 438 of the Criminal Procedure Code empowers the High Court and the Sessions Court to grant anticipatory bail to a person apprehending arrest in a non-bailable offense. Initially, by its order dated 28.08.2023, the Supreme Court had granted interim protection in favour of Dulare Choudhary, the appellant.

Prior to the Supreme Court's order, Justice Anjani Kumar Sharan of Patna High Court had dismissed the application for anticipatory bail by concluding that "it is clear that there is ample evidence against the petitioner to support the prosecution case, therefore, I am not inclined to enlarge the petitioner on bail" in Dulare Choudhary Vs. State of Bihar (2023). 

His order reads: "The prayer for grant of bail on his behalf is hereby rejected" on July 20, 2023. The petitioner had approached to Court apprehending his arrest in connection with Darbhanga Sadar P.S. Case No.50 of 2022, registered for the offences punishable under Sections 420, 467, 468, 471, 409, 34 of the Indian Penal Code, pending before the Court of Chief Judicial Magistrate, Darbhanga. The prosecution case arose out of a typed report of Block Development Officer, Sadar, Darbhanga in pursuance of a memo issued by the District Magistrate. Several irregularities were found to have been committed by the accused persons in the appointment of panchayat teachers in the year 2016 and 2021 within gram panchayat Raj Kabirchak. It was alleged that the petitioner in collusion with other co-accused persons, appointed 9 panchayat teachers in the year 2016 and 2021, concealing the fact that panchayat teachers had already been appointed earlier but the vacancy was not in existence. Moreover, the panchayat teachers were appointed when code of conduct was in vogue owing to panchayat elections. An inquiry was conducted under the chairmanship of Deputy Development Commissioner. The inquiry report submitted by the committee indicated involvement of petitioner in the irregularities in the appointment of panchayat teachers. 

The petitioner's counsel had submitted that Dulare Choudhary, the petitioner was quite innocent and had committed no offence. The Block Development Officer without knowing the fact of his order of appointment has wrongly and illegally lodged the FIR against the petitioner and others and made false and incorrect statement in the F.I.R. The petitioner was posted as Panchayat Secretary in Kabrpur Gram Panchayat Raj in the district of Darbhanga and he appointed nine Niyojeet Teachers in compliance of order dated 10.08.2019 passed by the District Teacher Appointment Appellate Authority, Darbhanga in case no.07 of 2018. He further submitted that the petitioner had no option but to comply the order of the Presiding Officer District Teacher Appointment Appellate Authority, Darbhanga and as accordingly, the petitioner appointed the nine Niyojeet Teachers, hence the petitioner did not commit any offence. It was further submitted that with the similar allegation of offence in respect of appointment of 16 Niyojeet Teachers including the nine teachers appointed by the petitioner and F.I.R was lodged by the B.D.O., Darbhanga, against the petitioner and other co-accused persons and the petitioner was granted anticipatory bail by the Sessions Judge, Darbhanga in aforesaid Darbhanga Sadar P.S.Case No.281 of 2021.

It was submitted that the Block Development Officer, Darbhanga Sadar before lodging the present case against the petitioner and others did not issue any notice to the petitioner regarding appointment of 9 Niyojeet Teachers, which shows the malafide intention and malafide action of the B.D.O. It was submitted that one of the Panchayat Secretary, who was posted in Kabirchak Gram Panchayat Raj prior to the petitioner was also made accused in the FIR lodged by the Block Development Officer, Sadar Darbhanga regarding appointment of Niyojit Teachers illegally was also granted anticipatory bail by the High Court vide order dated 08.02.2023 in Cr. Misc No.1400 of 2023. The petitioner joined Kabirchak Gram Panchayat Raj as a Panchayat Secretary on 01.07.2016 and submitted his joining report in the Sadar Prakhand on 01.07.2016 and the Secretary, Ram Dinesh Rai who handed over part charge on 15.07.2016 and no document was handed over to the petitioner in the charge report handed over by Panchayat Secretary, the then Panchayat Secretary and as such the petitioner had no knowledge about appointment of the teachers and the vacancies available before taking his charge if any teacher was appointed, it was appointed by the then Secretary of the said Gram Panchayat. 

The counsel for the State opposed the prayer for grant of anticipatory bail and submitted that during the investigation done by three men committee, it found that in Panchayat Kabirchak, the process of appointment of Niyojeet Shikshak was started in the year 2008 but the appointment letters were issued in the year 2016 which is apparently illegal. After perusal of counselling register and rectified merit list it is evident that in counselling register at Sl. No.31 name of Farhan Tabsum is mentioned but in rectified merit list at Sl. No.31, name of Vandana Kumari is mentioned. The names of candidates mentioned in serial number are not available in that serial number in counselling register or names are not found in the said register. Thereafter the appointments were made in the year 2019 and 2021 on that 09 vacant post which was filled up in year 2008. It was further submitted that Panchayat Secretary, Panchayat Raj Kabirchak was issued a letter bearing memo no.26 dated 09.11.2019 in which reference of letter BRC/434 dated 28.10.2019 of Block Education Officer, Darbhanga Sadar was mentioned which was not issued from the office of B.E.O. Sadar Darbhanga which shows that the petitioner was involved in doing illegal appointment of Niyojeet Shikshak in 2009 and 2021. It was stated that the petitioner was posted as Panchayat Sachiv in Kabirchak and Balha Panchayat (Darbhanga) and allegations that after concealment of facts (only nine posts were vacant) the appointments were made to the post of Niyojeet Shikshak was/is 18 in number without any sanction post in the year 2019 and 2021 which was apparently illegal.