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.

The Supreme Court and Anticipatory Bail — A Troubled Courtship

This post is not prompted by a recent case or statutory development, but instead the desire to take a step back and look at "bigger picture" concerns in an area of law, navigating which is akin to fortune-telling on the best of days and charting a hidden minefield on most others. This is Anticipatory Bail, that great and peculiar legal tool that lawyers in South Asia are familiar with [yes, it is not only India which has this remedy folks]. For the uninitiated, Anticipatory Bail is a legal remedy which enables a person to approach a court asking for bail "in the event of an arrest". In India, this is statutorily provided under Section 438 of the Criminal Procedure Code 1973 [Cr.P.C.], and requires that an accused show reasons to believe that she is likely to be arrested on accusation of having committed a non-bailable offence. If a court is satisfied in respect of the same, then it can pass an order directing the police to release the individual on bail in the event that it decides to arrest her, where this Anticipatory Bail will come with certain conditions such as ensuring cooperation with investigation and not coercing witnesses, etc. 

The Issue

The primary cause for confusion in respect of the legal position on Anticipatory Bail is, as one would expect, the manifold judicial decisions which have expounded on its scope and ambit. After all, merely reading the text of the provision might lead one to think that Anticipatory Bail is there for the asking if a person can show reasons to believe she will be arrested for accusations of committing a non-bailable offence. This is hardly so, as a court "may" grant the relief, and this question of determining the proper exercise of judicial discretion which has been the subject of controversy in all these decisions. The point being made here is not simply to complain about this confusion or berate courts for it. Instead, what I want to focus upon is a choice that the Supreme Court of India made in 1980 in respect of the judicial discretion afforded in matters of Anticipatory Bail in India, when a Constitution Bench of that Court considered the then-recently-added provision in a batch of petitions which was reported as Gurbaksh Singh Sibbia v. State of Punjab & Ors. [AIR 1980 SC 1632 ("Sibbia")]. 

This was a choice to remain faithful to the perceived framers' intent behind adding Anticipatory Bail, or to go beyond these confines by adopting a more purposive interpretive bent. The Constitution Bench opted for the latter, and the consequences have been bittersweet. On the one hand, Anticipatory Bail became an option to secure personal liberty more generally and it also added teeth to the fundamental right secured under Article 21 of the Constitution. On the other hand, this approach militated against what one might imagine as the DNA of the criminal process by denying arrest and thus allowing police investigations and / or the public interest to be "frustrated" as a result. Which is why, in spite of it being backed by a Constitution Bench decision of the Supreme Court, the liberal approach to Anticipatory Bail continues to raise many eyebrows and often meets with disapproval from that very Court till date.

The Interpretive Question in Anticipatory Bail

The framers approach, I argue, was to keep Anticipatory Bail as a remedy against baseless accusations — as a defence against being arrested in a malicious prosecution. This was the context in which such orders had been sought for before various High Courts in the two decades prior to the Cr.P.C. 1973, albeit with limited success. It was this context which led to the question being presented before the Commission. 

However, the 41st Law Commission Report (1969) sponsoring insertion of a provision for Anticipatory Bail did not stipulate this malicious prosecution context as the only purpose for which such a relief of an Anticipatory Bail order may be needed. The Commission noted in Para 39.9 that:   

 

The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. ... The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. [Emphasis mine]

Anticipatory Bail was therefore not only as a relief against malicious prosecution but also as a potential remedy against unjust incarceration caused because of the slow pace at which the legal system worked as people who otherwise be released on bail would have to "remain in prison for some days" and then apply for bail. It would be a stretch to consider this as a general expansion as "some days" come in almost every case. The only sensible way would be to treat this suggestion as offering a remedy in the exceptional case, and not more; doing so would render the distinctions between bail and Anticipatory Bail redundant which was certainly not what the Law Commission wanted to do. This view of treating Anticipatory Bail as the exceptional remedy is only buttressed if one considers the 48th Report which followed the introduction of the Criminal Procedure Code Bill of 1970 — the basis of the Cr.P.C. 1973 — wherein at Para 31 the Law Commission did retain its support for the measure but suggested it be an option only in "very exceptional cases".       

When, in 1976, the Supreme Court took up the limited issue of the exclusion of Anticipatory Bail in the statutory context of the the Defence of India Act 1971 in Balchand Jain [AIR 1977 SC 366], the separate opinions of Justices Bhagwati and Fazal Ali echoed this view of Anticipatory Bail being fit only for the exceptional case. The Punjab & Haryana High Court followed this view in its decision dismissing the petitions filed by Gurbaksh Singh Sibbia and others [1978 Cri LJ 20]. In a bid to settle the confusion that it had seen arise, in some measure due to the Law Commission's views and also due to the charged political context into which Anticipatory Bail was inserted, the High Court went ahead and offered strict guidelines regulating the scope of judicial discretion on the point of Anticipatory Bail. One of the guidelines was to permit Anticipatory Bail as an option only where an issue of mala fides was being alleged in respect of the accusations levelled against the individual seeking relief. The High Court considered limiting the scope of discretion as advisable also because it seriously bought into the argument that an expansive approach to Anticipatory Bail would stymie investigations. It agreed with the government counsel that speed was of the essence in investigations where the initial period of police custody was often critical to solving the case. Liberal pre-arrest bails would thwart investigations and hurt the public interest.    

The strict guidelines authored by the Punjab & Haryana High Court seemed to extinguish the remedy of Anticipatory Bail altogether and met with stern disapproval from the Supreme Court in Sibbia, observing that it did not see "why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care imaginable." The worries about thwarting investigations by depriving police of custody during the initial period were played down by the Supreme Court which was of the view that all investigative needs could be met with placing conditions requiring that a person cooperate with police. There was little discussion about the value of custodial interrogation to an investigation. Rather than see value in police custody, it is fair to say that in this post-Emergency, post-ADM Jabalpur, Maneka Gandhi era of the Supreme Court what weighed more heavily with the Bench was the threat posed by arbitrary arrests to personal liberty. One could see the stark difference in approach when, rather than talk about the importance of custodial interrogation, the Supreme Court spoke about a need to respect the presumption of innocence of the person applying for Anticipatory Bail. As a result, the only acceptable approach was an expansive one and not one which insisted on mala fides to be established for granting Anticipatory Bail. The Court acknowledged that there could be problems caused to investigations by Anticipatory Bail, but it noted that "a wise exercise of judicial power invariably takes care of the evil consequences which are likely to flow out of its intemperate use."   

The Fallout: Between a Rock and a Hard Place

In 2020, Sibbia was endorsed as being the correct and authoritative position of law on Anticipatory Bail by another Constitution Bench of the Court in Sushila Agarwal [2020 SCC OnLine SC 98] where, if anything, the Supreme Court went even further than Sibbia in endorsing an expansive and liberal approach to Anticipatory Bail. However, the journey from 1980 to 2020 is miles away from being imagined as a linear progression in the legal position affirming greater protection for personal liberty. Beneath these lofty pronouncements of the Supreme Court about Anticipatory Bail lies a great degree of reservation around this remedy. Just as an example, how can one square the law as laid down in Sibbia with the judgment in P. Chidambaram v. Enforcement Directorate [2019 SCC OnLine SC 1143] rendered by the Supreme Court in September, 2019, denying Anticipatory Bail to the petitioner. 

Yes, arrests can be unnecessary and arbitrary, but at the same time they are critical to ensure the criminal process "works" in the eyes of stakeholders. Arrests and the police custody which may follow within the first fourteen days thereafter are still accepted as being the most important part of any investigation. This is a feature of the system which the Supreme Court itself recognises time and again [see, as an example, CBI v. Anil Sharma, (1997) 7 SCC 187], and in doing so goes against the logic of Sibbia that the interests of an investigation can be sufficiently secured even without police custody. In addition to this, the criminal process endorses a logic that pre-trial arrests and custody, for at least some duration, are justified in cases of serious crime. Bail has never been only about ensuring that a person faces trial, but its desirability has historically been linked to the gravity of accusations. This bent of mind has, naturally, accompanied the exercise of judicial discretion on the point of Anticipatory Bail. A good example of this is the 2019 judgment in P. Chidambaram which reflects the consistent hesitation of courts to allow Anticipatory Bail for economic fraud. If anything, the reservations in granting Anticipatory Bail in serious crime appear to be even more pronounced than those associated with the grant of regular bail in this regard, as is evident from the complete exclusion of Anticipatory Bail as a remedy in certain statutory contexts — for example, anti-terrorism laws.   

Conclusion

In expanding the idea of Anticipatory Bail back in 1980, the intention of the Supreme Court in Sibbia was to make sure that this new tool is not jettisoned due to perceived fears of certain sections. However, the manner in which the Court sought to realise this was to leave everything to judicial discretion. The result is a branch of law that is pockmarked by inconsistency and uncertainty, which are perhaps the two worst things that an accused or potential accused person has to contend with. Anticipatory Bail became exactly like the concept of bail in respect of non-bailable offences — a concession, not a right.

It would be surprising to see Anticipatory Bail being scaled back to a pre-Sibbia position as a remedy only in cases of malicious prosecutions, even though this might be the most desirable way to make sense of the legal position. This perspective still continues to inform the law, in my opinion, and in practice it might still be the most common category of cases in which Anticipatory Bail is granted. It could well be argued that this perspective neatly explains why courts remain hesitant to accept Anticipatory Bail in contexts where the accusation comes not from private parties, but from government officials who are presumed to do their job correctly. However, the recognition of other residual categories of deserving cases for the grant of Anticipatory Bail is seen as too important to give up, and Sushila Aggarwal underscored that the Court still sees Anticipatory Bail as being a potential tool to help reduce arbitrary arrest and detention. Of course, just not a very good tool. As a result, it is fair to imagine Anticipatory Bail continuing to seem like going to play slots in a casino and hoping to get lucky till the system somehow moves past its preference for arrests and pre-trial custody of accused persons.