Md. Asfak Alam v. State of Jharkhand

Why this case matters

Nine years after Arnesh Kumar v. State of Bihar, the Supreme Court found a High Court refusing anticipatory bail to a husband in a Section 498-A IPC case who had cooperated with the investigation and against whom a charge-sheet had already been filed, and telling him to surrender and seek regular bail. The Court set that order aside. It then reproduced the Arnesh Kumar directions and told every High Court and every State’s Director General of Police to turn them into notifications, guidelines and circulars within eight weeks, and to file affidavits of compliance.

The facts

The appellant and the second respondent married on 5 November 2020. On 2 April 2022 an FIR was registered against the appellant, his brother and others under Sections 498A, 323, 504 and 506 IPC and Sections 3 and 4 of the Dowry Prohibition Act. The Sessions Judge, Gumla, dismissed his application for anticipatory bail on 28 June 2022, and he moved the Jharkhand High Court on 5 July 2022. On 8 August 2022 the High Court directed that he not be arrested while the application was pending. He cooperated with the investigation, a charge-sheet was filed, and the Sessions Court took cognizance on 1 October 2022. On 18 January 2023 the High Court rejected his application for anticipatory bail and directed him to surrender before the court below and seek regular bail.

The question before the Court

Was the High Court right to refuse anticipatory bail, and to order the appellant to surrender, when he had cooperated with the investigation and the charge-sheet had already been filed?

What the Court said

The Court began with the principles that govern bail:

This court has emphasised the values of personal liberty in the context of applying discretion to grant bail. It has been ruled, in a long line of cases that ordinarily bail ought to be granted and that in serious cases – which are specified in the provisions of the CrPC (Section 437) which involve allegations relating to offences carrying long sentences or other special offences, the court should be circumspect and careful in exercising discretion.

Para 9 · [2023] 10 S.C.R. 1188 · Open at this page

It found nothing in the case that stood against the appellant:

In the present case, this Court is of the opinion that there are no startling features or elements that stand out or any exceptional fact disentitling the appellant to the grant of anticipatory bail.

Para 12 · [2023] 10 S.C.R. 1192 · Open at this page

On what the High Court should have done once the charge-sheet was filed:

Thus, once the chargesheet was filed and there was no impediment, at least on the part of the accused, the court having regard to the nature of the offences, the allegations and the maximum sentence of the offences they were likely to carry, ought to have granted the bail as a matter of course. However, the court did not do so but mechanically rejected and, virtually, to rub salt in the wound directed the appellant to surrender and seek regular bail before the Trial Court. Therefore, in the opinion of this court, the High Court fell into error in adopting such a casual approach.

Para 12 · [2023] 10 S.C.R. 1193 · Open at this page

The directions

Before parting, the Court turned to every court and police force:

Before parting, the court would direct all the courts ceased [sic] of proceedings to strictly follow the law laid down in Arnesh Kumar (supra) and reiterate the directions contained thereunder, as well as other directions:

Para 12 · [2023] 10 S.C.R. 1193 · Open at this page

Direction I sets out the eight Arnesh Kumar directions and its paragraph on offences punishable with up to seven years. The Court’s own directions follow:

II. The High Court shall frame the above directions in the form of notifications and guidelines to be followed by the Sessions courts and all other and criminal courts dealing with various offences.

III. Likewise, the Director General of Police in all States shall ensure that strict instructions in terms of above directions are issued. Both the High Courts and the DGP’s of all States shall ensure that such guidelines and Directives/Departmental Circulars are issued for guidance of all lower courts and police authorities in each State within eight weeks from today.

IV. Affidavits of compliance shall be filed before this court within ten weeks by all the states and High Courts, though [sic] their Registrars.

Para 12 · [2023] 10 S.C.R. 1194–1195 · Open at this page

What the Court decided

The appeal was allowed. The High Court’s order rejecting anticipatory bail and directing the appellant to surrender and later seek bail was set aside, and the appellant was directed to be enlarged on bail on such terms and conditions as the Trial Court may impose. The High Courts and the police authorities in all States were required to comply with the directions within the time fixed.

Why it still matters

Md. Asfak Alam is short, but it carries Arnesh Kumar from a direction to the police into instructions every High Court and police force was told to issue, with affidavits of compliance to the Supreme Court. High Courts have cited it since; the case map below shows one of them, with the Supreme Court judgments it relied on. The CrPC provisions it applies, Sections 41, 41A and 438, are now in the BNSS, so check the new section when you rely on it today.

How lawyers use it

• In anticipatory bail applications after a charge-sheet is filed, where the accused cooperated with the investigation.
• To oppose an order directing an accused to surrender and seek regular bail when nothing stands against them.
• With Arnesh Kumar, in bail and remand matters for offences punishable with up to seven years.
• To point a court or the police to the notifications and circulars the directions required.