Guest Post: A Conspectus of the Law Regarding Notice Prior to Arrest

(This is a guest post by Sudhanva S. Bedekar)

Whether the Courts are empowered to issue directions to the investigating agencies to give to the accused, a reasonable notice (example 72 hours) prior to arrest is a question which is sought to be addressed in this post. The issue becomes relevant due to a recent pronouncement of the Supreme Court in Vijaykumar Ramchandani v. Amar Sadhuram Mulchandani where the Court has frowned upon such a practice. 

The power to issue such directions could be traced to two provisions of the Code of Criminal Procedure, namely Section 438 and Section 482. While Section 438 grants to the High Court and Court of Sessions a power to direct release of a person on bail in the event of arrest, Section 482 saves the inherent powers of the High Court. 

In the context of Section 438, the said question seems to have been covered by a judgement of the Supreme Court in Union of India v. Padam Narain Aggarwal. It is argued that Padam Narain Aggarwal, insofar as its reasoning and reliance on Gurbaksh Singh Sibbia is concerned, is not decided correctly and needs a re-look.

Revisiting Padam Narain Aggarwal

It is therefore necessary to examine Padam Narain Aggarwal. The case arose from an order of the High Court of Rajasthan which directed Customs authorities to not arrest the Petitioners without ten days prior notice in case any non bailable offence was found to have been committed by them, while at the same time also holding that the Applications of Petitioners were premature. A bare perusal of the said order would reveal that the same was cryptic and did not contain any reasoning whatsoever which could justify the ten days notice period. 

While setting aside this order, the Supreme Court examined whether such an order could have been passed by the High Court in the first place. The facts of the said case reveal that notices under S. 108 of the Customs Act were issued to the Petitioners and due to their brazen non-cooperation, complaints were filed under Ss. 174 and 175 of the Indian Penal Code. Thereafter, the Application for Anticipatory Bail was disposed by the High Court with the direction as aforesaid.

In Padam Narain Aggarwal, the Supreme Court discussed the development of the law relating to grant of Anticipatory Bail in some detail and extensively relied on Sibbia's case. Paragraph 40 of the judgement in Sibbia, which is reproduced in Padam Narain Aggarwal, reads as follows;

“40... We agree that a 'blanket order' of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, requires the applicant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever." That is what is meant by a 'blanket order' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence….”

The Court in Sibbia ultimately came to the conclusion that no blanket order of bail can be passed while exercising power under S. 438 of the Code. Similarly, the Court in Padam Narain Aggarwal relied upon Adri Dharan Das, where the Supreme Court had held that normally direction should not be issued that the Applicant should be released on bail whenever arrested for whichever offence. 

In Das, it was also held that an interim order restraining arrest passed in an Application under S. 438 will amount to interference in investigation and will not be permissible under S. 438. After a conspectus of the case law in this regard, the Court in Padam Narain Aggarwal arrived at its final conclusions which are stated in paragraph 45:

“45. In our judgment, on the facts and in the circumstances of the present case, neither of the above directions can be said to be legal, valid or in consonance with law. Firstly, the order passed by the High Court is a blanket one as held by the Constitution Bench of this Court in Gurbaksh Singh and seeks to grant protection to respondents in respect of any non-bailable offence. Secondly, it illegally obstructs, interferes and curtails the authority of Custom Officers from exercising statutory power of arrest a person said to have committed a non-bailable offence by imposing a condition of giving ten days prior notice, a condition not warranted by law...”

The Court clearly arrived at a conclusion that the order directing grant of 10 days’ notice is a blanket one as held in Sibbia. It is submitted that the view taken by the Court is erroneous. 

Firstly, the meaning of the term blanket order has been explained by the Constitution bench in Sibbia and the same was reproduced by the Court in Padam Narain Aggarwal. The Sibbia dictum is that a direction under S. 438(1) that the accused should be released on bail whenever arrested in whichever offence would amount to a blanket order (see para 40 above). It court did not have occasion to examine whether reasonable notice prior to arrest is permissible under S. 438. The order of the High Court which was impugned in Padam Narain Aggarwal did not direct that the accused be released on bail whenever arrested for whichever offence. It merely directed that notice be given prior to arrest. Whether such a course of action would be permissible under S. 438 was the question which the Court sought to examine. 

The Court’s conclusion that such a course of action is not permissible since the same would be a blanket order granting protection in non bailable offence is clearly erroneous, as the direction impugned was not one which directed release on bail “whenever arrested for whatever offence.” What the Court in the impugned order had directed was that the authorities must give ten days’ notice prior to arrest. Such a direction, according to the Court, was necessitated since at the stage when the Application was filed, apprehension of arrest was not present. 

In Padam Narain Aggarwal, the Court failed to draw a distinction between a blanket order which directed release on bail for whatever offence and one which merely directed the prosecution machinery to grant reasonable notice prior to arrest. The settled position of law, insofar as Applications under S. 438 are concerned is that the apprehension of arrest needs to be established. 

When the Court is dealing with Applications where the apprehension is based on notices issued by authorities under special legislations such as the Customs Act or the Prevention of Money Laundering Act, it is not always possible for the accused to establish whether the agency concerned is even treating him as an accused. Thus, such Applications may be easily disposed off on the basis that the same are premature. However, if such is the position, then the provisions of S. 438 would be rendered nugatory. 

To prevent such a predicament, Courts some times direct a reasonable notice prior to arrest, which very often is for a period of 72 hours. Once such a notice is issued, the accused would be at liberty to approach the Court with an Application under S. 438 which can be decided on its own merits. Such orders are by no means anticipatory bail orders or blanket orders as contemplated in Sibbia for the reason that there is no direction contained therein to release the accused on bail.

The Court in Padam Narain Aggarwal could yet have set aside the impugned order directing 10 days notice prior to arrest since on facts, it is evident that the order did not contain sufficient reasons guiding the discretion of the Court. Moreover, the notice period of 10 days was perhaps otherwise excessive. However, the reliance on Sibbia was misplaced. Recently, a Constitution bench in Sushila Aggarwal has yet again relied upon the very same paragraphs of Sibbia and while summarising the principles, observed as follows;

“52.14. A blanket order under Section 438, directing the police to not arrest the Applicant, “wherever arrested and for whatever offense” should not be issued. An order based on reasonable apprehension relating to specific facts (though not spelt out with exactness) can be made. A blanket order would seriously interfere with the duties of the police to enforce the law and prevent commission of offenses in the future. (Paras 40-41, Sibbia)”

The Court has repeated the error of not appreciating the distinction between an order preventing arrest for a limited period and a blanket order to release on bail. The reliance on paragraphs 40 and 41 in Sibbia is clearly erroneous. A perusal of the above paragraph from Sushila Aggarwal reveals an inherent absurdity. The Court has stated that blanket orders to not arrest 'wherever arrested' cannot be passed. The absurdity lies in the fact that no direction to not arrest can be passed in cases where the accused is already arrested. It is only an order to release on bail that can be passed. It is thus clear that what is meant by the aforesaid direction is that the courts cannot grant orders directing blanket release wherever arrested. Furthermore, interestingly, the Court had observed, apparently in the context of blanket orders, that an order based on reasonable apprehension relating to specific facts though not spelt out with exactness can be passed.

Establishing the Case for Allowing Protective Orders under S. 438

The case of Dr. Sameer Narayanrao Paltewar v. State of Maharashtra decided by a single judge of the Bombay High Court settled a unique question relating to the fate of the accused persons who were directed to remain present for final hearing of their Applications under S. 438 and the Applications were dismissed. Section 438 of the Code of Criminal Procedure had been amended in its application to the State of Maharashtra and sub-section (4) thereof stipulates that the Sessions Court can direct the presence of the Applicant at the time of final hearing of the Application for Anticipatory Bail. 

The Bombay High Court was called upon to issue appropriate directions in order to ensure that liberties of the Applicants are protected by courts when Applications were dismissed while the Applicants are present in Court for final hearing. The High Court noticed that if the Applications under S. 438 are dismissed, the accused runs the risk of immediate arrest, thus frustrating his right to approach the High Court under S. 438 seeking the same relief. 

In this backdrop, the Court directed that the Sessions Courts must extend interim protection for a period of three to four days if Applications are rejected while the Applicant is present in Court. The said direction was issued in order to ensure that the remedy to approach the High Court is not rendered nugatory. 

It is pertinent to note that though it would appear that the order in question was passed in an entirely different context and was not any blanket order like the one impugned in Padam Narain Aggarwal, the principle of law that is applied by the High Court in this case and the principle of law applied in the other cases where prior notice before arrest was directed is one and the same. 

The principle is that by ensuring prior notice or some other protection to the accused, the right under Section 438 is not allowed to get frustrated. It is submitted that on a literal reading of S. 438 of the Code, it is possible to argue that the ruling in Paltewar is erroneous since the provision does not contemplate such a course of action. 

However, such a direction is borne out of a pragmatic and purposive interpretation of S. 438 and is therefore not erroneous. So also, directions of notice of reasonable time before arrest passed under S. 438 of the Code cannot be faulted simply on the premise that the same is not permissible under S. 438 or on the premise that such orders run contrary to the statutory powers of arrest. Such orders are necessary since it is not possible on every occasion for the Applicant to meet the threshold requirement of apprehension of arrest, particularly in cases where the investigating agency is acting under a special legislation such as the Customs Act or PMLA.

Exploring Inherent Powers to Support Notice prior to Arrest Orders

A conspectus of case law on the subject reveal that the discussion regarding orders directing notice prior to arrest has largely remained confined to the exercise of jurisdiction under S. 438 of the Code. However, whether such orders can be passed by the High Court in exercise of its inherent powers under S. 482 of the Code is a question that remains to be considered. 

Padam Narain Aggarwal reveals that the Court restricted itself to the interpretation of S. 438 of the Code and does not extend to exercise of inherent powers by the High Court under S. 482 of the Code. Further, the jurisprudence on the expanse of the powers of the High Court under S. 482 indicates that orders in the nature of notice prior to arrest could be passed in exercise of powers under S. 482. In the context of S. 438, it was possible to argue that the language of the provision does not permit any restriction on the power of arrest but only permits grant of bail in the event of arrest and that fetters cannot be imposed on statutory powers. However, when the High Court exercises its inherent powers, it is not possible to curtail its jurisdiction. The language of S. 482 is also indicative of this fact.

In Petitions for quashing of FIRs, the High Courts pass interim orders in the nature of not to take coercive steps or stay on investigation. Given the expanse of the inherent power of the High Court, an argument that curtailing statutory powers of the investigating agencies by way of interim relief is not permissible, has not been made. However, whether such relief can be granted as final relief is a question which would require some consideration. S. 482 is most commonly invoked in order to quash FIRs, chargesheets or criminal proceedings. 

It is also invoked in situations where the Code does not otherwise provide any remedies to approach the High Court. It remains to be seen whether the High Court’s jurisdiction under S. 482 of the Code can be invoked seeking relief of notice prior to arrest. There has never been an occasion for any accused to apply to the High Court seeking such a relief since such Applications were usually filed under S. 438. However, if it is to be held that the language of S. 438 does not permit such a relief, in the future it is likely that the jurisdiction of the High Court under S. 482 may be invoked.

In Petitions filed for quashing of FIRs, High Courts in fit cases pass interim orders staying investigations or directing the investigating agencies to not take any coercive action. However, such orders are interim orders where the final relief claimed is that of quashing of the FIR or proceedings concerned. In the case of Neeharika Infrastructure Private Ltd. v. State of Maharashtra the Supreme Court held that such interim orders directing no coercive steps cannot be passed if the High Court is dismissing the Petition for quashing of the FIR. However, no fetters have been imposed on the High Court’s power to direct no coercive steps as an interim order, provided that the High Court gives adequate reasons for arriving at the conclusion that such an interim order needs to be passed. 

The judgement of the Calcutta High Court in Ram Chandra Panda and Anr. v. State of West Bengal decided in January, 2023, presents yet another peculiar circumstance where the police were issuing notices under S. 160 of the Code to persons who were not named as accused in the FIR and were thereafter arresting these persons. Thus, a Petition was filed challenging few notices issued under S. 160 of the Code. S. 160 grants to the police making an investigation, the power to require the attendance of any person who may be acquainted with the facts of a case. 

The peculiar facts of the case before the High Court prompted it to ask the question as to why the police were resorting to this indirect method of arrest when they had the power to arrest at any time. The High Court held that such conduct was only to ensure that the accused does not get the chance of approaching the Court by filing an Anticipatory Bail Application or seek other protective orders. It further held that if this be the intention of the police, the situation required the court to invoke its inherent jurisdiction. It held that if a criminal case is to be initiated against the Petitioner, he shall not be arrested for a period of ten days so as to enable him to avail his remedies. 

It is apparent that the said order too has not been passed in exercise of powers under S. 438 but in exercise of inherent powers under S. 482. However, it appears that insofar as grant of relief of pre-arrest bail is concerned, there appears to be a fundamental flaw in the reasoning of the Court where it holds that the police were trying to ensure that the accused does not get a chance to avail anticipatory bail. It is noteworthy that in order to seek pre-arrest bail, it is not material as to under which provision of the Code a notice has been served. What is material for the said purpose is as to whether there is any apprehension of arrest.

Conclusion

To conclude with, it is submitted that a purposive interpretation of S. 438 would entail that the no fetters can be imposed on the power of the High Court or Court of Sessions from directing notice prior to arrest. Such orders are issued in situations where it is not possible to highlight the apprehension of arrest. In cases involving legislations such as the PMLA, such orders would be necessary so as to not render futile the mandate of S. 438. As an illustration, such orders could be necessary in situations where multiple FIRs are being registered on the basis of the same set of allegations. 

Further, the term “blanket order” as interpreted in Gurbaksh Singh’s case refers to orders directing release on bail in whatever offence and does not refer to orders directing notice prior to arrest. Hence, the rulings in Padam Narain Aggarwal and Vijaykumar Ramchandani require reconsideration.