The satisfaction of the court for granting protection under Section 438 CrPC is different from the one under Section 439 CrPC while considering regular bail

Ravikiran Shukre | Manikchand Pahade Law College, Aurangabad | 14th February 2020 

Satpal Singh v. State of Punjab [2018(13) SCC 813] 

Facts of the Case: 

1. Satpal Singh (in criminal appeal no. 462 of 2018) is before Supreme Court challenging the order dated 04/10/2017 passed by the High Court of Punjab and Haryana at Chandigarh in CRM-M-37140 of 2017 rejecting application anticipatory bail. 
2. The High Court took note of the fact that the appellant was an accused in FIR No. 0053, dated 11.06.2017 under Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 registered at Police Station Bhadson, District Patiala. 

Judgment:

1. Under Section 37 of the NDPS Act, when a person is accused of an offence punishable under Section 19 or 24 or 27A and also for offences involving commercial quantity, he shall not be released on bail unless the Public Prosecutor  has been given an opportunity  to oppose the application for such release, and in case a Public Prosecutor opposes the application, the court must be satisfied that there are reasonable  grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. These limitations are in addition to those prescribed under the Cr.P.C or any other law in force on the grant of bail. In view of the seriousness of the offence, the law makers have consciously put such stringent restrictions on the discretion available to the court while considering application for release of a person on bail.
2. It is unfortunate that the Sessions Court did not take note of the final order passed by the High Court.  The Court should have enquired as to whether the matter had been finally disposed of, particularly after noticing the interim order. The casual approach adopted by the learned Sessions Judge has apparently led to the accused being released on regular bail, on the basis of the interim order passed by the High Court. When the application for anticipatory bail was the subject matter before the High Court, the accused had no business to go and surrender before the Sessions Court and seek regular bail on the basis of an interim order.  The learned counsel for the accused submits that they had produced the final order passed by the High Court dated 21.09.2017 along with the application for regular bail. 
3. the protection under Section 438, Cr.P.C. is available to the accused only till the court summons the accused based on the charge sheet. On such appearance, the accused has to seek regular bail under Section 439 Cr.P.C. and that application has to be considered by the court on its own merits. Merely because an accused was under the protection of anticipatory bail granted under Section 438 Cr.P.C. that does not mean that he is automatically entitled to regular bail under Section 439 Cr.P.C.

Supreme Court come to a conclusion pronouncing judgment stating that, the order dated 31.10.2017 passed by the Sessions Court is also set aside.  All the three accused in both these appeals are directed to surrender before the trial court. However, they are free to apply for regular bail, in which case, the Sessions Court will consider the matter on the merits of the application.