The Judgment was passed by a Single Judge Bench of Justice Suresh Kumar Kait in a petition by the Enforcement Directorate (ED) assailing an order passed by the trial court.
Whereby, the Delhi High Court has held that courts have the power to either grant anticipatory bail or reject it and have no power to direct the Investigating Officer to issue a pre-arrest notice to an accused while deciding his anticipatory bail plea.
The Court finally relied on the Padam Narain Aggarwal case and held that the question of whether the courts have the power to direct the IO to issue notice prior to arrest was no more res Integra.
The Court held that courts have the power to grant or not to grant anticipatory bail but have no power to direct the IO to issue notice prior to arrest.
The facts of the issue in hand proceeds as follows:
One Tilak Raj Arora had moved an application for anticipatory bail before the Additional Sessions Judge. The same was disposed of with the direction that the investigating agency i.e. Enforcement Directorate shall serve three working days' notice on proposing to arrest Arora.
ED argued that the order was contrary to the settled law. ED relied on Supreme Court's judgments in Union of India vs. Padam Narain Aggarwal (2008) and State of Telangana vs. Habib Abdulla Jeelani (2017) to submit that while exercising power under Section 438 CrPC, the courts while disposing of the application could not pass any such order which would amount to the grant of anticipatory bail.
ED stated that the investigation pertained to a scam involving approximately Rs 3600 crores and was commonly known as Bank of Baroda Scam. Since the investigation in the case was still ongoing, ED argued that the order passed by the trial court would hamper the further investigation.
It was also contended that Arora had not cooperated in the investigation and the order was passed without taking note of the gravity of the offence.
Arora, on the other hand, argued that when he appeared before the Agency pursuant to the summons, he was manhandled and was forced to make a statement as per the IO's dictum. He thus moved an application seeking anticipatory bail.
Additionally, he submitted that he was neither named in the charge sheet nor in the supplementary charge sheet.
After hearing the parties, the Court discussed the law of arrest and anticipatory bail under Section 438 CrPC.
The Court noted that anticipatory bail was not defined in CrPC but it meant "bail in anticipation of arrest". It observed that when the court granted anticipatory bail, an order is made that in the event of the arrest, a person shall be released on bail.
The Court added the power to grant anticipatory bail was "somewhat extraordinary" and could be exercised only in exceptional cases.
"Anticipatory bail being an extraordinary remedy available in special cases, this power has been conferred on the higher echelons of judicial service, namely, the Court of Sessions or the High Court.."
The Court further stated that an anticipatory bail could be granted in cases where there were reasonable grounds for holding that a person accused of an offence was not likely to abscond, misuse his liberty or where there seemed no justification to send the person in custody.
The Court also recorded that the old Code of 1898 did not contain a specific provision with regard to anticipatory bail and there was a sharp difference of opinion amongst various High Courts on the question of whether a court had inherent power to make an order of bail in anticipation of arrest.
Subsequently, keeping in view the Law Commission of India's Forty-eighth Report, a provision for anticipatory bail was inserted under Section 438 in the new Code, the Court observed.
Therefore, as the crux of the matter, it was concluded that the order passed by the trial court was set aside with liberty to Arora to take the appropriate legal recourse when the need arises.