SUNDEEP KUMAR BAFNA vs STATE OF MAHARASHTRA & ANR.
Bail Can be Filed Directly Before High Court :
Key Points :
- Appellant has filed an application praying, firstly, that he be permitted to surrender to the High Court and secondly, for his plea to be considered for grant of bail by the High Court.
- There are no restrictions on the High Court to entertain an application for bail provided always the accused is in custody, and this position obtains as soon as the accused actually surrenders himself to the Court.
- The Sessions Court as well as the High Court, both of which exercised concurrent powers under Section 439, would then have to venture to the merits of the matter so as to decide whether the applicant/Appellant had shown sufficient reason or grounds for being enlarged on bail.
- The impugned Order is, accordingly, set aside. The Learned Single Judge shall consider the Appellant’s plea for surrendering to the Court and dependent on that decision, the Learned Single Judge shall, thereafter,consider the Appellant’s plea for his being granted bail. The Appellant shall not be arrested for a period of two weeks or till the final disposal of the said application, whichever is later. We expect that the learned Single Judge shall remain impervious to any pressure that may be brought to bear upon him either from the public or from the media as this is the fundamental and onerous duty cast on every Judge.
Full Text of Judgment :
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 689 OF 2014
[Arising out of SLP (Crl.)No.1348 of 2014]
SUNDEEP KUMAR BAFNA ....APPELLANT
vs
STATE OF MAHARASHTRA & ANR.
…..RESPONDENT(S)
J U D G M E N T
VIKRAMAJIT SEN,J.
1. Leave granted.
2. A neat legal nodus of ubiquitous manifestation and gravity has
arisen before us. It partakes the character of a general principle of law
with significance sans systems and States. The futility of the Appellant’s endeavours to secure anticipatory bail having
attained finality, he had once again knocked at the portals of the High Court of Judicature at
Bombay, this time around for regular bail under Section 439 of the Code of
CriminalProcedure (CrPC), which was declined with the observations that it
is the Magistrate whose jurisdiction has necessarily to be invoked and
not of the High Court or even the Sessions Judge. The legality of this
conclusion is the gravemen of the appeal before us. While declining to grant anticipatory bail to the Appellant, this Court had extended to him transient
insulation from arrest for a period of four weeks to enable him to apply for
regular bail,even in the face of the rejection of his Special Leave Petition on
28.1.2014.This course was courted by him, in the event again in vain, as the
bail application preferred by him under Section 439 CrPC has been
dismissed by the High Court in terms of the impugned Order dated 6.2.2014. His supplications to the Bombay High Court were
two fold; that the High Court may permit the petitioner to surrender to its
jurisdiction and secondly, to enlarge him on regular bail under Section 439 of
the Code, on such terms and conditions as may be deemed fit and proper.
3. In the impugned Judgment, the learned Single
Judge has opined that when the Appellant’s plea to surrender before
the Court is accepted and he is assumed to be in its custody, the police would
be deprived of getting his custody, which is not contemplated by law, and
thus, the Appellant “is required to be arrested or other wise he has to
surrender before the Court which can send him to remand either to the
police custody or to the Magisterial custody and this can only be done under
Section 167 of CrPC by the Magistrate and that order cannot be passed at the
High Court level.” Learned Senior Counsel for the Appellant have
fervidly assailed the legal correctness of this opinion. It is contended
that the Magistrate is not empowered to grant bail to the Appellant, since he
can be punished with imprisonment for life, as statutorily stipulated
in Section 437(1) CrPC; CRNo.290 of 2013 stands registered with P.S. Mahim
for offences punishable under Sections 288, 304, 308, 336, 388 read with
34 and Section 120-B of IPC. Learned Senior Counsel further contends
that since the matter stands committed to Sessions, the Magistrate is denuded
of all powers in respect of the said matter, for the reason that law envisages
the commitment of a case and not of an individual accused.
4. While accepting the Preliminary Objection,
the dialectic articulated in the impugned order is that law postulates that a
person seeking regular bail must perforce languish in the custody of the
concerned Magistrate under Section 167 CrPC. The Petitioner had not
responded to the notices/summons issued by the concerned Magistrate leading to
the issuance of non-bailable warrants against him, and when even these steps
proved ineffectual in bringing him before the Court, measures were set in
motion for declaring him as a proclaimed offender under Section 82 CrPC. Since
this was not the position obtaining in the case, i.e. it was assumed by the
High Court that the Petitioner was not in custody, the application for bail
under Section 439 of CrPC was held to be not maintainable. This conclusion was reached
even though the petitioner was present in Court and had pleaded in writing that
he be permitted to surrender to the jurisdiction of the High Court. We shall
abjure from narrating in minute detail the factual matrix of the case as it is
not essential to do so for deciding the issues that have arisen in the present
Appeal.
Relevant Provisions in the CrPC Pertaining
to Regular Bail:
5. The pandect providing for bail is Chapter
XXXIII comprises Sections436 to 450 of the CrPC, of which Sections 437
and 439 are currently critical. Suffice it to state that Section 438 which
deals with directions for grant of bail to persons apprehending arrest does not
mandate either the presence of the applicant in Court or for his being in
custody. Section 437, inter alia, provides that if any person accused of, or
suspected of the commission of any non-bailable offence is arrested or detained
without warrant by an officer in charge of a police station or if such person
appears or is brought before a Court other than the High Court or Court of
Session, he may be released on bail in certain circumstances.
6. For facility of reference, Sections 437 and
439, both covering the grant of regular bail in non-bailable offences are
reproduced hereunder.Section 438 has been ignored because it is the composite
provision dealing only with the grant of anticipatory bail.
“437. When bail may be taken in case of non-
bailable
offence.- (1) When any person accused of, or suspected of, the commission
of any non-bailable offence is arrested or detained without warrant by an officer in charge of a
police station or appears or is brought before a Court other than the High
Court or Court of Session, he may be released on bail, but –
(i) such person shall not be so released if
there appear reasonable grounds for believing that he has been guilty of an offence
punishable with death or imprisonment for life; (ii) such person shall not be
so released if such offence is a cognizable offence and he had been previously
convicted of an offence punishable with death, imprisonment for
life or imprisonment for seven years or more, or he had been previously convicted
on two or more occasions of a cognizable offence punishable with imprisonment
for three years or more but not less than seven years:Provided that the Court may direct that a person
referred to in clause (i) or clause (ii) be released on bail if such person is under
the age of sixteen years or is a woman or is sick or infirm: Provided further
that the Court may also direct that a person referred to in clause (ii) be
released on bail if it is satisfied that it is just and proper so to do for any
other special reason:Provided also that the mere fact that an accused
person may be required for being identified by witnesses during investigation
shall not be sufficient ground for refusing to grant bail if he is otherwise
entitled to be released on bail and gives an undertaking that he shall comply
with such directions as may be given by the Court: Provided also that no person
shall, if the offence alleged to have been committed by him is punishable with
death,imprisonment for life, or imprisonment for seven
years or more, be released on bail by the Court under this sub-section without giving
an opportunity of hearing to the Public Prosecutor. (2) If it appears to such
officer or Court at any stage of the investigation, inquiry or trial, as the
case may be, that there are not reasonable grounds for believing that the
accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt,
the accused shall, subject to the provisions of section 446A and pending such inquiry,
be released on bail, or at the discretion of such officer or Court, on the
execution by him of a bond without sureties for his appearance as hereinafter
provided.
(3) When a person accused or suspected of the
commission of an offence punishable with imprisonment which may extend to seven
years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of
the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to
commit, any such offence, is released on bail under sub- section (1) – the
Court shall impose the conditions –
(a) that such person shall attend in accordance
with the conditions of the bond executed under this Chapter, (b) that such
person shall not commit an offence similar to the offence of which he is
accused, or suspected, of the commission of which he is suspected, and (c)
that such person shall not directly or indirectly make any inducement, threat
or promise to any person acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the Court or to any police officer
or tamper with the evidence, and may also impose, in the interests of justice,
such other conditions as it considers necessary. (4) An officer or a Court
releasing any person on bail under sub-section (1) or sub- section (2), shall
record in writing his or its reasons or special reasons for so doing. (5) Any
Court which has released a person on bail under subsection (1) or sub- section
(2), may, if it considers it necessary so to do, direct that such person be
arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the
trial of a person accused of any non-bailable offence is not concluded within a
period of sixty days from the first date fixed for taking evidence in the case,
such person shall, if he is in custody during the whole of the said period, be
released on bail to the satisfaction of the Magistrate, unless for reasons to
be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the
trial of a person accused of a non-bailable offence and before judgment is delivered,
the Court is of opinion that there are reasonable grounds for believing that
the accused is not guilty of any such offence, it shall release the accused, if
he is in custody, on the execution by him of a bond without sureties for his
appearance to hear judgment delivered.
439. Special powers of High Court or Court of Session regarding bail –
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail,
and if the offence is of the nature specified in sub-section (3) of section
437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when
releasing any person on bail be set aside or modified: Provided that the High
Court or the Court of Session shall, before granting bail to a person who is
accused of an offence which is triable exclusively by the Court of Session or
which, though not so triable, is punishable with imprisonment for life, give
notice of the application for bail to the Public Prosecutor unless it is, for
reasons to be recorded in writing, of the opinion that it is not practicable to
give such notice.
(2) A High Court or Court of Session may direct
that any person who has been released on bail under this Chapter be arrested
and commit him to custody.” 7. Article 21 of the Constitution states that no
person shall be deprived of his life or personal liberty except according to
procedure established by law. We are immediately reminded of three sentences
from the Constitution Bench decision in P.S.R. Sadhanantham vs Arunachalam
(1980) 3 SCC 141, which we appreciate as poetry in prose - “Article 21, in its sublime brevity, guards human liberty by insisting on the
prescription of procedure established by law, not fiat as sine qua non for deprivation of personal freedom. And those
procedures so established must be fair, not fanciful, nor formal nor flimsy, as
laid down in Maneka Gandhi case. So, it is axiomatic that our Constitutional
jurisprudence mandates the State not to deprive a person of his personal
liberty without adherence to fair procedure laid down by law”. Therefore, it
seems to us that constriction or curtailment of personal liberty cannot be
justified by a conjectural dialectic. The only restriction allowed as a general principle of
law common to all legal systems is the period of 24 hours post-arrest on the
expiry of which an accused must mandatorily be produced in a Court so that his
remand or bail can be judicially considered.
8. Some poignant particulars of Section 437 CrPC
may be pinpointed. First, whilst Section 497(1) of the old Code alluded to an
accused being “brought before a Court”, the present provision postulates the
accused being“brought before a Court other than the High
Court or a Court of Session” in respect of the commission of any non-bailable
offence. As observed in Gurcharan Singh vs State (1978) 1 SCC 118, there is no provision
in the CrPC dealing with the production of an accused
before the Court of Session or the High Court. But it must also be immediately
noted that no provision categorically prohibits the production of an
accused before either of these Courts. The Legislature could have easily
enunciated, by use of exclusionary or exclusive terminology, that the
superior Courts of Sessions and High Court are bereft of this jurisdiction
or if they were so empowered under the Old Code now stood denuded thereof.
Our understanding is in conformity with Gurcharan Singh, as perforce it must. The scheme of the CrPC plainly provides that bail will not be
extended to a person accused of the commission of a non-bailable offence
punishable with death or imprisonment for life, unless it is apparent to
such a Court that it is incredible or beyond the realm of reasonable
doubt that the accused is guilty. The enquiry of the Magistrate placed in this
position would be akin to what is envisaged in State of Haryana vs Bhajan Lal,
1992 (Supp)1 SCC 335, that is, the alleged complicity of the accused
should, on the factual matrix then presented or prevailing, lead to the
overwhelming, incontrovertible and clear conclusion of his innocence. The CrPC severely
curtails the powers of the Magistrate while leaving that of the Court of
Session and the High Court untouched and unfettered. It appears to us that
this is the only logical conclusion that can be arrived at on a conjoint
consideration of Sections 437 and 439 of the CrPC. Obviously, in order to
complete the picture so far as concerns the powers and limitations thereto of
the Court of Session and the High Court, Section 439 would have to be
carefully considered. And when this is done, it will at once be evident that
the CrPC has placed an embargo against granting relief to an accused, (couched
by us in the negative), if he is not in custody. It seems to us that any
persisting ambivalence or doubt stands dispelled by the proviso to this Section,
which mandates only that the
principles of interpretation of statutes that
what is not plainly evident from their reading, was never intended to be
incorporated into law. Some salient features of these provisions are that whilst
Section 437 contemplates that a person has to be accused or suspect of a
non-bailable offence and consequently arrested or detained without
warrant, Section 439 empowers the Session Court or High Court to grant bail if
such a person is in custody.The difference of language manifests the sublime
differentiation in the two provisions, and, therefore, there is no
justification in giving the word ‘custody ’ the same or closely similar meaning
and content as arrest or detention. Furthermore, while Section 437
severally curtails the power of the Magistrate to grant bail in context of the
commission of non-bailable offences punishable with death or imprisonment
for life, the two higher Courts have only the procedural requirement of
giving notice of the Bail application to the Public Prosecutor, which
requirement is also ignorable if circumstances so demand. The regimes regulating
the powers of the Magistrate on the one hand and the two superior
Courts are decidedly and intentionally not identical, but vitally and
drastically dissimilar. Indeed, the only complicity that can be contemplated is the
conundrum of ‘Committal of cases to the Court of Session’ because of a
possible hiatus created by the CrPC.
Meaning of Custody:
9. Unfortunately, the terms ‘custody’, ‘detention’
or ‘arrest’ have not been defined in the CrPC, and we must resort to
few dictionaries to appreciate their contours in ordinary and legal
parlance. The Oxford Dictionary (online) defines custody as
imprisonment, detention,confinement, incarceration, internment,
captivity; remand, duress, and durance. The Cambridge Dictionary (online)
explains ‘custody’ as the state of being kept in prison, especially while waiting to go to court for trial.Longman Dictionary (online) defines ‘custody’ as
‘when someone is kept in prison until they go to court, because the
police think they have committed a crime’. Chambers Dictionary (online) clarifies
that custody is ‘the condition of being held by the police; arrest or
imprisonment; to take someone into custody to arrest them’. Chambers’
Thesaurus supplies several synonyms, such as detention,
confinement, imprisonment, captivity,arrest,formal incarceration.The Collins
Cobuild English Dictionary for Advance Learners states in terms of that someone
who is in custody or has been taken into custody or has been arrested and
is being kept in prison untilthey get tried in a court or if someone is being
held in a particular type ofcustody, they are being kept in a place that is
similar to a prison. The Shorter Oxford English Dictionary postulates the
presence of confinement, imprisonment, durance and this feature is
totally absent in the factual matrix before us. The Corpus Juris Secundum under the
topic of ‘Escape & Related Offenses; Rescue’ adumbrates that
‘Custody, within the meaning of statutes defining the crime, consists of the
detention or restraint of a person against his or her will, or of the exercise of
control over another to confine the other person within certain physical limits
or a restriction of ability or freedom of movement.’ This is how ‘Custody’ is
dealt with in Black’s Law Dictionary, (9th ed. 2009):- “Custody- The care and control of a
thing or person. The keeping, guarding, care, watch, inspection,
preservation or security of a thing, carrying with it the idea of the
thing being within the
immediate personal care and control of the
person to whose custody-it is subjected. Immediate charge and control,
and not the final,absolute control of ownership, implying
responsibility for the protection and preservation of the thing in
custody. Also the detainer of a man’s person by virtue of lawful
process or authority. The term is very elastic and may mean actual
imprisonment or physical detention or mere power, legal or
physical, of imprisoning or of taking manual possession. Term “custody”
within statute
requiring that petitioner be “in custody” to be
entitled to federal habeas corpus relief does not necessarily mean
actual physical detention in jail or prison but rather is
synonymous with restraint of liberty. U. S. ex rel. Wirtz v. Sheehan,
D.C.Wis, 319 F.Supp. 146,147. Accordingly, persons on probation or
released on own recognizance have been held to be “in custody”
for purposes of habeas corpus proceedings.”
10. A perusal of the dictionaries thus discloses
that the concept that is created is the controlling of a person’s liberty
in the course of a criminal investigation, or curtailing in a substantial or
significant manner a person’s freedom of action. Our attention has been drawn,
in the course of Rejoinder arguments to the judgment of the Full Bench of
the High Court of Madras in Roshan Beevi vs Joint Secretary 1984(15) ELT 289 (Mad), as
also to the decision of the Court in Directorate of
Enforcement vs Deepak Mahajan (1994) 3 SCC 440; in view of the composition of
both the Benches,reference to the former is otiose. Had we been
called upon to peruse Deepak Mahajan earlier, we may not have considered it necessary
to undertake a study of several Dictionaries, since
it is a convenient and comprehensive compendium on the meaning of
arrest, detention and custody.
11. Courts in Australia, Canada, U.K. and U.S.
have predicated in great measure, their decisions on paragraph 99 from
Vol. II Halsbury’s Laws of England (4th Edition) which states that
– “Arrest consists of the actual seizure or touching of a person’s body with a
view to his detention. The mere pronouncing of words of arrest is not an
arrest, unless the person sought to be arrested submits to the process and
goes with the arresting officer”. The US Supreme Court has been called
upon to explicate the concept of custody on a number of occasions,
where, coincidentally, the plea that was proffered was the failure of the police
to administer the Miranda Miranda vs Arizona 384 US 436 (1966), custodial interrogation has been said to mean “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way”. In Minnesota vs Murphy 465 US 420 (1984), it was opined by the U.S. Supreme Court that
since “no formal arrest or restraint on freedom of movement of the degree
associated with formal arrest” had transpired, the Miranda doctrine had
not become operative. In R. vs Whitfield 1969 Careswell Ont 138, the Supreme
Court of Canada was called upon to decide whether the police
officer, who directed the accused therein to stop the car and while seizing him by
the shirt said “you are under arrest:”, could be said to have been
“custodially arrested” when the accused managed to sped away. The plurality of the
Supreme Court declined to draw any distinction between an arrest amounting
to custody and a mere or
be requiring adherence to Miranda rules.
12. It appears to us from the above analysis
that custody, detention and arrest are sequentially cognate concepts. On the
occurrence of a crime, the police is likely to carry out the investigative
interrogation of a person, in the course of which the liberty of that individual
is not impaired, suspects are then preferred by the police to undergo
custodial interrogation during which their liberty is impeded and encroached upon. If
grave suspicion against a suspect emerges, he may be detained in which
event his liberty is seriously impaired. Where the investigative agency is of
the opinion that the detainee or person in custody is guilty of the commission
of a crime, he is charged of
it and thereupon arrested. In Roshan Beevi, the Full Bench of the High Court of Madras, speaking through S. Ratnavel
Pandian J, held that the terms ‘custody’ and ‘arrest’ are not synonymous
even though in every arrest there is a deprivation of liberty is custody but
not vice versa. This thesis is reiterated by Pandian J in Deepak Mahajan by deriving support from Niranjan Singh vs Prabhakar Rajaram Kharote (1980) 2 SCC 559.
The following passages from Deepak Mahajan are worthy of extraction:-
“48. Thus the Code gives power
of arrest not only to a police officer and a Magistrate but also under certain
circumstances or given situations to private persons. Further,
when an accused person appears before a Magistrate or surrenders
voluntarily, the Magistrate is empowered to take that accused person into
custody and deal with him according to law. Needless to
emphasize that the arrest of a person is a condition precedent for
taking him into judicial custody thereof. To put it differently, the taking of the
person into judicial custody is followed after the
arrest of the person concerned by the Magistrate on appearance
or surrender. It will be appropriate, at this stage, to note that
in every arrest, there is custody but not vice versa and that both the
words ‘custody’ and ‘arrest’ are not synonymous terms. Though
‘custody’ may amount to an arrest in certain circumstances but not
under all circumstances. If these two terms are interpreted as
synonymous, it is nothing but an ultra legalist interpretation
which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences, vide Roshan
Beevi.
49. While interpreting the expression ‘in custody’ within the meaning of Section 439 CrPC, Krishna Iyer, J.
speaking for the Bench in Niranjan Singh v. Prabhakar Rajaram
Kharote observed that: (SCC p. 563, para 9)“He can be in custody not merely when the police
arrests him,produces him before a Magistrate and gets a remand
to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits
to its directions.”(emphasis added) If the third sentence of para 48 is discordant
to Niranjan Singh, the view of the coordinate Bench of earlier vintage must
prevail, and this disciplinedemands and constrains us also to adhere to Niranjan Singh; equal Bench has opined that since an accused has
to be present in Court on the moving of a bail petition under Section 437,
his physical appearance before the Magistrate tantamounts to surrender.The view of NiranjanSingh (see extracted para 49 infra) has been followed in State of
Haryana vs Dinesh Kumar (2008) 3 SCC 222. We can only fervently hope
that member of Bar will desist from citing several
cases when all that is required for their purposes is to draw attention to the
precedent that holds the field,which in the case in hand, we reiterate is Niranjan Singh.Rule of Precedent & Per Incuriam :
13. The Constitution Bench in Union of India vs Raghubir Singh, 1989(2) SCC 754, has come to the conclusion
extracted below:“27. What then should be the position in regard to the effect of the law pronounced by a Division Bench in
relation to a case raising the same point subsequently before a
Division Bench of a smaller number of Judges? There is no
constitutional or statutory prescription in the matter, and the point is
governed entirely by the practice in India of the courts sanctified
by repeated affirmation over a century of time. It cannot be doubted
that in order to promote consistency and certainty in the law
laid down by a superior Court, the ideal condition would be that the
entire Court should sit in all cases to decide questions of
law, and for that reason the Supreme Court of the United States does so.
But having regard to the volume of work demanding the
attention of the Court, it has been found necessary in India as a
general rule of practice and convenience that the Court should
sit in Divisions, each Division being constituted of Judges whose
number may be determined by the exigencies of judicial need,
by the nature of the case including any statutory mandate
relative thereto, and by such other considerations which the Chief
Justice, in whom such authority devolves by convention, may find most
appropriate. It is in order to guard against the possibility of
inconsistent decisions on points of law by different Division Benches
that the Rule has been evolved, in order to promote
consistency and certainty in the development of the law and its
contemporary status, that the statement of the law by a Division
Bench is considered binding on a Division Bench of the same or
lesser number of Judges. This principle has been followed in
India by several generations of Judges. …”
14. This ratio of Raghubir Singh was applied once again by the Constitution Bench in Chandra Prakash v. State of U.P.: AIR 2002 SC 1652. We think it instructive to extract the paragraph 22
from Chandra Prakash in order to underscore that there is a consistent and
constant judicial opinion, spanning across decades, on this aspect of
jurisprudence: “Almost similar is the view expressed by a
recent judgment of a five-Judge Bench of this Court in Parija’s
case (supra). In that case, a Bench of two learned Judges doubted
the correctness of the decision a Bench of three learned Judges,
hence, directly referred the matter to a Bench of five learned Judges for
reconsideration. In such a situation, the five-Judge Bench held
that judicial discipline and propriety demanded that a Bench
of two learned Judges should follow the decision of a Bench of
three learned Judges. On this basis, the five-Judge Bench
found fault with the reference made by the two-Judge Bench based on
the doctrine of binding precedent.”
15. It cannot be over-emphasised that the
discipline demanded by a precedent or the disqualification or diminution
of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and
comity of Courts would become a costly casualty. A decision or judgment can be
per incuriam any provision in a statute, rule or regulation, which was not
brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Coequal or Larger Bench; or if the decision of a High
Court is not in consonance with the views of this Court. It must
immediately be clarified that the per incuriam rule is
strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is
often encountered in High Courts that two or more mutually irreconcilable
decisions of the Supreme Court are cited at the Bar. We think that the inviolable
recourse is to apply the earliestview as the succeeding ones would fall in the
category of per incuriam.
Validation of Ratio in Niranjan Singh:
16. We must now discuss in detail the decision
of a Two-Judge Bench in Rashmi Rekha Thatoi vs State of Orissa, (2012) 5 SCC 690, for
the reason that in the impugned Order the Single Judge of
the High Court has proclaimed, which word we used intentionally,
that Niranjan Singh is per incuriam. The ‘chronology of cases’ mentioned in Rashmi Rekha elucidates that there is only one judgment
anterior to Niranjan Singh,namely, Balchand Jain vs State of M.P. (1976) 4
SCC 572, which along with the Constitution Bench decision in Gurbaksh
Singh Sibbia, intrinsically concerned itself only with anticipatory bail. It
is necessary to give a salutary clarion caution to all Courts,
including High Courts, to be extremely careful and circumspect in concluding a judgment
of the Supreme Court to be per incuriam. In the
present case, in the impugned Order the learned Single Judge appears to have blindly followed
the incorrect and certainly misleading editorial note in the Supreme Court
Reports without taking the trouble of conscientiously apprising himself of
the context in which Rashmi Rekha appears to hold Niranjan Singh per incuriam, and equally importantly, to which previous judgment. An
earlier judgment cannot possibly be seen as per incuriam a later judgment as the latter if numerically stronger only then it would overrule the former.
Rashmi Rekha dealt with anticipatory bail under Section 438 and only
tangentially with Sections 437 and 439 of the CrPC, and while deliberations and
observations found in this clutch of cases may not be circumscribed by the
term obiter dicta, it must concede to any judgment directly on point. In
the factual matrix before us,Niranjan Singh is the precedent of relevance and not Gurbaksh
SinghSibbia or any other decision where the scope and sweep of anticipatory
bailwas at the fulcrum of the conundrum.
17. Recently, in Dinesh Kumar, this conundrum came to be consideredagain. This Court adhered to the Niranjan Singh dicta (as it was bound to do), viz. that a person can be stated to be in
judicial custody when he surrendered before the Court and submits to its
directions. We further regretfully observe that the impugned Judgment
is repugnant to the analysis carried out by two coordinate Benches of the
High Court of Bombay itself, which were duly cited on behalf of the Appellant.
The first one is reported as Balkrishna Dhondu Rani vs Manik Motiram
Jagtap 2005 (Supp.) Bom C.R.(Cri) 270 which applied Niranjan Singh; the second is by a different Single Bench, which correctly applied the first.
In the common law system, the purpose of precedents is to impart
predictability to law, regrettably the judicial indiscipline displayed in the impugned
Judgment, defeats it. If the learned Single Judge who had authored the
impugned Judgment irrepressibly held divergent opinion and found it unpalatable,
all that he could have done was to draft a reference to the Hon’ble Chief
Justice for the purpose of constituting a larger Bench; whether or not to
accede to this request remains within the discretion of the Chief Justice.
However, in the case in hand, this avenue could also not have been traversed since Niranjan Singh binds not only Co-equal Benches of the Supreme Court but
certainly every Bench of any High Court of India. Far from being per incuriam, Niranjan Singh has metamorphosed into the structure of stare decisis,even Larger Benches of this Court should
hesitate to remodel its ratio.
18. It will also be germane to briefly cogitate
on the fasciculous captioned “Section 438 of the Code of Civil Procedure, as
amended by the Code of Criminal Procedure (Amendment) Act, 2005 of the
203rd Report of the Law Commission. Although, the Law Commission was
principally focused on the parameters of anticipatory bail, it had
reflected on Niranjan Singh, and, thereafter, observed in paragraph 6.3.23 that
“where a person appears before the Court in compliance with any Court’s order
and surrenders himself to the Court’s directions or control, he may be granted
regular bail, since he is
already under restraint. The provisions relating
to the anticipatory bail may not be attracted in such a case”. An amendment
was proposed to the provisions vide CrPC (Amendment) Act, 2005
making the presence of the applicant seeking anticipatory bail obligatory
at the time of final hearing of the application for enlargement on bail. The
said amendment has not been notified yet and kept in abeyance because of two
reasons. Firstly, the amendment led to widespread agitation by the
lawyers fraternity since it would virtually enable the police to immediately
arrest an accused in the event the Court declined to enlarge the accused
on bail. Secondly, in the perception of the Law Commission, it would
defeat the very purpose of the anticipatory bail. The conclusion of the Law
Commission, in almost identical words to those extracted above are
that: “when the applicant appears in the Court in compliance of the
Court’s order and is subjected to the Court’s directions, he may be viewed as in
Court’s custody and this may render the relief of anticipatory bail
infructuous”. Accordingly, the Law Commission has recommended omission of
sub-section (1-B) of Section 438CrPC.
19. The Appellant had relied on Niranjan Singh vs Prabhakar Rajaram Kharote (1980) 2 SCC 559, before the High Court
as well as before us. A perusal of the impugned Order discloses that the
learned Single Judge was of the mistaken opinion that Niranjan Singh was per incuriam,
possibly because of an editorial error in the reporting
of the later judgment in Rashmi Rekha Thatoi vs State of Orissa (2012) 5 SCC 690. In the latter decision the curial assault was to the refusal to grant
of anticipatory bail under Section 438(1) CrPC, yet nevertheless enabling
him to surrender before the Sub Divisional Magistrate and thereupon to be
released on bail. In the appeal in hand this issue is not in focus; the
kernel of the conundrum before us is the meaning to be ascribed to the concept
of custody in Section 439 CrPC, and a careful scrutiny of Rashmi Rekha will disclose that it does not even purport to or tangentially intend to
declare Niranjan Singh as per incuriam. Singh vs State of M.P, where our esteemed
Brother Dipak Misra has clarified that Rashmi Rekha concerned
itself only with anticipatory bail. The impugned Order had therefore to remain in
complete consonance with Niranjan Singh. It needs to be clarified that paragraph 14 of
Sunita Devi vs State of Bihar (2005) 1 SCC 608, extracts
verbatim paragraph 7 of Niranjan Singh, without mentioning so. The annals of the
litigation in Niranjan Singh are that pursuant to a private complaint under
Section 202 CrPC,the concerned Magistrate issued
non-bailable warrants in respect of the accused, and subsequently while refusing
bail to them had neglected to contemporaneously cause them to be taken into
custody. In that interregnum or hiatus, the accused moved the Sessions Court
which granted them bail albeit on certain terms which the High Court did
not interfere therewith.This Court, speaking through Krishna Iyer J
elucidated the law in these paragraphs:“6. Here the respondents were accused of offences but were not in custody, argues the petitioner so
no bail, since this basic condition of being in jail is not fulfilled.
This submission has been rightly rejected by the courts below. We
agree that, in one view, an outlaw cannot ask for the benefit of
law and he who flees justice cannot claim justice. But here the
position is different.The accused were not absconding but had appeared
and surrendered before the Sessions Judge. Judicial jurisdiction
arises only when persons are already in custody and
seek the process of the court to be enlarged. We agree that no
person accused of an offence can move the court for bail under
Section 439 CrPC unless he is in custody.
7. When is a person in custody, within the meaning of
Section439 CrPC? When he is in duress either because he
is held by the investigating agency or other police or allied
authority or is under the control of the court having been remanded by
judicial order, or having offered himself to the court’s
jurisdiction and submitted to its orders by physical presence.No lexical
dexterity nor precedential profusion is needed to come to the realistic
conclusion that he who is under the control of the court or
is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic
semantics but its core meaning is that the law has taken control of the
person. The equivocatory quibblings and hide-and-seek
niceties sometimes heard in court that the police have taken a man
into informal custody but not arrested him, have detained him for
interrogation but not taken him into formal custody and other like
terminological dubieties are unfair evasions of the
straightforwardness of the law. We need not dilate on this shady facet here
because we are satisfied that the accused did physically submit
before the Sessions Judge and the jurisdiction to grant bail thus
arose.
8. Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under
Section 438) is physical control or at least physical presence of the
accused in court coupled with submission to the jurisdiction and
orders of the court.
9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a
remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and
submits to its directions.In the present case, the police officers applied
for bail before a Magistrate who refused bail and still the
accused, without surrendering before the Magistrate, obtained an
order for stay to move the Sessions Court. This direction of the
Magistrate was wholly irregular and maybe, enabled the accused
persons to circumvent the principle of Section 439 CrPC. We might have
taken a serious view of such a course, indifferent to
mandatory provisions, by the subordinate magistracy but for the fact that in the present case the accused made up for it by
surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have
refused bail and remanded the accused to custody, but, in the
circumstances and for the reasons mentioned by it, exercised
its jurisdiction in favour of grant of bail. The High Court added to
the conditions subject to which bail was to be granted and
mentioned that the accused had submitted to the custody of the
court. We, therefore,do not proceed to upset the order on this
ground. Had the circumstances been different we would have demolished the
order for bail. We may frankly state that had we been left
to ourselves we might not have granted bail but, sitting under
Article 136, do notfeel that we should interfere with a discretion
exercised by thetwo courts below.” (Emphasisadded by us)It should not need be labouring that High Courts
must be most careful and circumspect in concluding that a decision of a
superior Court is per incuriam. And here, palpably without taking the trouble
of referring to and reading the precedents alluded to, casually
accepting to be correct a careless and incorrect editorial note, the Single Judge
has done exactly so. All the cases considered in Rashmi Rekha including the decision of the Constitution Bench in Gurbaksh Singh Sibbia vs State of Punjab (1980) 2SCC 565, concentrated on the contours and
circumference of anticipatory bail, i.e. Section 438. We may reiterate that
the Appellant’s prayer for anticipatory bail had already been declined by
this Court, which is why he had no alternative but to apply for regular
bail. Before we move on we shall reproduce the following part of paragraph 19 of Sibbia as it has topicality:-“pursuance of information supplied by a person
released on bail by invoking the principles stated by this Court
in State of U.P.v. Deoman Upadhyaya to the effect that when a
person not in custody approaches a police officer
investigating an offence and offers to give information leading to the
discovery of a fact,having a bearing on the charge which may be made
against him,he may appropriately be deemed so have
surrendered himself to the police. The broad foundation of this rule is
stated to be that Section 46 of the Code of Criminal Procedure
does not contemplate any formality before a person can be
said to be taken in custody: submission to the custody by
word or action by a person is sufficient. For similar reasons,
we are unable to agree that anticipatory bail should be refused
if a legitimate case for the remand of the offender to the
police custody under Section 167(2) of the Code is made out by the
investigating agency.”20. In this analysis, the opinion in the
impugned Judgment incorrectly concludes that the High Court is bereft or
devoid of power to jurisdiction upon a petition which firstly pleads surrender
and, thereafter, prays for bail. The High Court could have perfunctorily taken
the Appellant into its custody and then proceeded with the perusal of the
prayer for bail; in the event of its coming to the conclusion that sufficient grounds
had not been disclosed for enlargement on bail, necessary orders for
judicial or police custody could have been ordained. A Judge is expected to
perform his onerous calling impervious of any public pressure that may be
brought to bear on him.
The Conundrum of Cognizance, Committal
& Bail
21. We have already noted in para 8 the creation
by the CrPC of a hiatus between the cognizance of an offence by the
Magistrate and the committal by him of that offence to the Court of Session.
Section 190 contemplates the cognizance of an offence by a Magistrate in
any of the following four circumstances: (i) upon receiving a complaint of
facts; or (ii) upon a police report of such facts; or (iii) upon information
received from any person other than a police officer, or (iv) upon the
Magistrate’s own knowledge.Thereafter,Section 193 proscribes the Court of
Session from taking cognizance of any offence,as a Court of
original jurisdiction, unless the case has been committed to it by a Magistrate;its
Appellate jurisdiction is left untouched. Chapter XVI makes it amply clear that
a substantial period may inevitably intervene between a Magistrate
taking cognizance of an offence triable by Sessions and its committal to
the Court of Session.Section 204 casts the duty on a Magistrate to
issue process; Section 205 empowers him to dispense with personal
attendance of accused;Section 206 permits Special summons in cases of petty
offence; Sections 207 and 208 obligate the Magistrate to furnish to the
accused, free of cost, copies of sundry documents mentioned therein; and,
thereafter, under Section 209 to commit the case to Sessions. What is to happen
to the accused in this interregnum; can his liberty be jeopardized! The
only permissible restriction to personal freedom, as a universal legal norm,
is the arrest or detention of an accused for a reasonable period of 24 hours.
Thereafter, the accused would be entitled to seek before a Court his
enlargement on bail. In connection with serious offences,Section 167
CrPC contemplates that an accused may be incarcerated, either in police or
judicial custody, for a maximum of 90 days if the Charge Sheet has not
been filed. An accused can and very often does remain bereft of his
personal liberty for as long as three months and law must enable him to seek
enlargement on bail in this period. Since severe restrictions have been
placed on the powers of a Magistrate to grant bail, in the case of an
offence punishable by death or for imprisonment for life, an accused should be in a
position to move the Courts meaningfully empowered to grant him succour. It
is inevitable that the personal freedom of an individual would be
curtailed even before he can invoke the appellate jurisdiction of Sessions
Judge. The Constitution therefore requires that a pragmatic, positive
and facilitative interpretation be given to the CrPC especially with regard to the
exercise of its original jurisdiction by the Sessions Court. We are
unable to locate any provision in the CrPC which prohibits an accused from moving
the Court of Session for such a relief except, theoretically, Section 193
which also only prohibits it from taking cognizance of an offence as a Court
of original jurisdiction.This embargo does not prohibit the Court of
Session from adjudicating upon a plea for bail. It appears to us that till the
committal of case to the Court of Session, Section 439 can be invoked for the
purpose of pleading for bail. If administrative difficulties are encountered,
such as, where there are several Additional Session Judges, they can be overcome
by enabling the accused tomove the Sessions Judge, or by further
empowering the Additional Sessions Judge hearing other Bail Applications whether
post committal or as theAppellate Court, to also entertain Bail
Applications at the pre-committal stage. Since the Magistrate is completely barred
from granting bail to a person accused even of an offence punishable by
death or imprisonment for life, a superior Court such as Court of Session,
should not be incapacitated from considering a bail application especially
keeping in perspective that its powers are comparatively unfettered under
Section 439 of the CrPC.
22. In the case in hand, we need not dwell
further on this question since the Appellant has filed an application praying,
firstly, that he be permitted to surrender to the High Court and secondly, for
his plea to be considered for grant of bail by the High Court. We say this
because there are no provisions in the CrPC contemplating the committal of a
case to the High Court,thereby logically leaving its powers
untrammelled. There are no
restrictions on the High Court to entertain an
application for bail provided always the accused is in custody, and this
position obtains as soon as the accused actually surrenders himself to the
Court. Reliance on R vs Evans,(2012) 1 WLR 1192, by learned Senior Counsel for
the respondents before us is misplaced, since on its careful reading,
the facts are totally distinguishable inasmuch as the accused in that
case had so engineered events as not to be available in persona in the Court at the time of the consideration of his application for surrender.
The Court of Appeal observed that they “do not agree that reporting
to the usher amounts to surrender”. The Court in fact supported the view
that surrender may also be accomplished by the commencement of any hearing
before the Judge, however brief, where the accused person is
formally identified and plainly would overtly have subjected himself to the
control of the Court.Incontrovertibly, at the material time the
Appellant was corporeally present in the Bombay High Court making Evans applicable to the case of the Appellant rather than the case of the
respondent. A further singularity of the present case is that the offence has already
been committed to Sessions, albeit, the accused/Appellant could not have
been brought before the Magistrate. It is beyond cavil “that a Court
takes cognizance of an offence and not an offender” as observed in Dilawar Singh
vs Parvinder Singh,(2005) 12 SCC 709, in which Raghubans Dubey vs
State of Bihar, AIR1967 SC 1167, was applied. Therefore, the High
Court was not justified in directing the Appellant to appear before the
Magistrate.
23. On behalf of the State, the submission is
that the prosecution should be afforded a free and fair opportunity of
subjecting the accused to custody for interrogation as provided under Section 167
CrPC. This power rests with the Magistrate and not with the High Court,
which is the Court of Revision and Appeal; therefore, the High Court
under Section 482 CrPC can only correct or rectify an order passed without
jurisdiction by a subordinate Court. Learned State counsel submits that the
High Court in exercise of powers under Section 482 can convert the nature
of custody from police custody to judicial custody and vice versa, but
cannot pass an Order of first remanding to custody. Therefore, the only avenue
open to the accused is to appear before the Magistrate who is empowered
under Section 167 CrPC. Thereupon, the Magistrate can order for police
custody or judicial custody or enlarge him on bail. On behalf of the State, it
is contended that if accused persons are permitted to surrender to the High
Court, it is capable of having, if not a disastrous, certainly a deleterious
effect on investigations and shall open up the flood gates for accused persons to
make strategies by keepingthemselves away from the investigating agencies
for months on end. Theargument continues that in this manner
absconding accused in several sensitive cases, affecting the security of the
nation or the economy of the country, would take advantage of such an
interpretation of law and get away from the clutches of the investigating officer.
We are not impressed by the arguments articulated by learned Senior Counsel
for the Complainant or informant because it is axiomatic that any
infraction or inroad to the freedom of an individual is possible only by some clear
unequivocal and unambiguous procedure known to law.
Role of Public Prosecutor and Private
Counsel in Prosecution :
24. The concern of the Three Judge Bench in Thakur Ram vs State of Bihar AIR 1966 SC 911, principally was whether the case before them should have been committed to Sessions, as also whether this plea could be countenanced at the stage when only the Judgment was awaited and any such interference would effectuate subjecting the accused to face trial virtually de novo. The observations that where “a case has proceeded on a police report a private party has really no locus standi, since the aggrieved party is the State”, are strictly senso obiter dicta but it did presage the view that was to be taken by this Court later. In Bhagwant Singh vs Commissioner of Police, (1985) 2 SCC 537, another Three Judge Bench formulated the question which required its answer that “whether in a case where First Information Report is lodged and after completion of investigation initiated on the basis of the First Information Report, the police submits a report that no offence appears to have been committed, the Magistrate can accept the report and drop the proceeding without issuing notice to the first informant or to the injured or in case the incident has resulted in death, to the relatives of the deceased”. Sections 154, 156, 157, 173 and 190 of the CrPC were duly considered threadbare, before opiningthus:- “4. ….when, on a consideration of the report made by the officer-in-charge of a police station under sub -section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process…..xxxxxxxxxx
24. The concern of the Three Judge Bench in Thakur Ram vs State of Bihar AIR 1966 SC 911, principally was whether the case before them should have been committed to Sessions, as also whether this plea could be countenanced at the stage when only the Judgment was awaited and any such interference would effectuate subjecting the accused to face trial virtually de novo. The observations that where “a case has proceeded on a police report a private party has really no locus standi, since the aggrieved party is the State”, are strictly senso obiter dicta but it did presage the view that was to be taken by this Court later. In Bhagwant Singh vs Commissioner of Police, (1985) 2 SCC 537, another Three Judge Bench formulated the question which required its answer that “whether in a case where First Information Report is lodged and after completion of investigation initiated on the basis of the First Information Report, the police submits a report that no offence appears to have been committed, the Magistrate can accept the report and drop the proceeding without issuing notice to the first informant or to the injured or in case the incident has resulted in death, to the relatives of the deceased”. Sections 154, 156, 157, 173 and 190 of the CrPC were duly considered threadbare, before opiningthus:- “4. ….when, on a consideration of the report made by the officer-in-charge of a police station under sub -section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process…..xxxxxxxxxx
“5. The position may however, be a little
different when we consider the question whether the injured person
or a relative of the deceased, who is not the
informant, is entitled to notice when the report comes up for
consideration by the Magistrate. We cannot spell out either from the
provisions of the Code of Criminal Procedure, 1973 or from the principles of natural justice, any obligation on
the Magistrate to issue notice to the injured person or to a
relative of the deceased for providing such person an
opportunity to be heard at the time of consideration of the
report, unless such person is the informant who has lodged the First Information Report. But even if such person is not entitled
to notice from the Magistrate, he can appear before the
Magistrate and make his submissions when the report is
considered by the Magistrate for the purpose of deciding what
action he should take on the report……”Thereafter, in Shiv Kumar vs Hukam
Chand (1999) 7 SCC 467, the question that was posed before another Three
Judge Bench was whether an aggrieved has a right to engage its own counsel
to conduct the prosecution despite the presence of the Public Prosecutor.
This Court duly noted that the role of the Public Prosecutor was upholding
the law and putting together a sound prosecution; and that the presence of a
private lawyer would inexorably undermine the fairness and
impartiality which must be the hallmark, attribute and distinction of every
proper prosecution. In that case the advocate appointed by the aggrieved party
ventured to conduct the cross examination of the witness which was allowed by the Trial
Court but was reversed in Revision by the High Court, and the
High Court permitted only the submission of Written Argument after the
closure of evidence.Upholding the view of the High Court, this Court
went on to observe that before the Magistrate any person (except a
police officer below the rank of Inspector) could conduct the prosecution, but
that this laxity is impermissible in Sessions by virtue of Section
225 of the CrPC, which pointedly states that the prosecution shall be
conducted by a Public Prosecutor. We, respectfully, agree with the
observations that – “A Public Prosecutor is not expected to show a thirst to
reach the case in the conviction of the accused somehow or the other irrespective
of the true facts involved in the case. The expected attitude of the Public
Prosecutor while conducting prosecution must be couched in fairness not only
to the Court and to the investigating agencies but to the accused as
well. …….. A private counsel, if allowed a free hand to conduct prosecution
would focus on bringing the case to conviction even if it is not a fit case
to be so convicted. That is the reason why Parliament applied a bridle on him
and subjected his role strictly to the instructions given by the Public
Prosecutor.” In J.K. International vs State (2001) 3 SCC 462, the Appellant had
filed a complaint alleging offences under Sections 420, 406 and 120-B IPC
in respect of which a Charge Sheet was duly filed. The Appellant
preferred a petition in the High Court for quashing the FIR in which proceeding
the complainant’s request for being heard was rejected by the High Court. Thakur Ram and Bhagwant Singh were cited and analysed.It was reiterated by
this Court that it is the Public Prosecutor who is in the
management of the prosecution the Court should look askance at frequent
interjection and interference by a
private person. However, if the proceedings are
likely to be quashed, then the complainant should be heard at that stage,
rather than compelling him to assail the quashment by taking recourse to an
appeal. Sections 225, 301 and302 were also adverted to and, thereafter, it
was opined that a private personis not altogether eclipsed from the scenario, as
he remains a person who will be prejudiced by an order culminating in the
dismissal of the prosecution. The Three Judge Bench observed that upon the
Magistrate becoming prescient that a prosecution is likely to end in
its dismissal, it would be salutary to allow a hearing to the Complainant
at the earliest; and, in the case f a Sessions trial, by permitting the filing of
Written Arguments.
25. The upshot of this analysis is that no
vested right is granted to a complainant or informant or aggrieved party to
directly conduct a prosecution. So far as the Magistrate is
concerned, comparative latitude is given to him but he must always bear in mind
that while the prosecution must remain being robust and comprehensive and
effective it should not abandon the need to be free, fair and diligent.
So far as the Sessions Court is concerned, it is the Public Prosecutor who must
at all times remain in control of the prosecution and a counsel of a private
party can only assist the Public Prosecutor in discharging its responsibility.The complainant or informantor aggrieved party may, however, be heard at a
crucial and critical juncture of the Trial so that his interests in the
prosecution are not prejudiced or jeopardized. It seems to us that constant or
even frequent interference in the prosecution should not be encouraged as it will
have a deleterious impact on its impartiality. If the Magistrate or Sessions
Judge harbours the opinion that the prosecution is likely to fail, prudence
would prompt that the complainant or informant or aggrieved party be given an
informal hearing. Reverting to the case in hand, we are of the opinion that the
complainant or informant or aggrieved party who is himself an accomplished
criminal lawyer and who has been represented before us by the erudite
Senior Counsel, was not possessed of any vested right of being heard as
it is manifestly evident that the Court has not formed any opinion adverse to
the prosecution. Whether the Accused is to be granted bail is a matter
which can adequately be argued by the State Counsel. We have, however, granted
a full hearing to Mr. Gopal Subramanium, Senior Advocate and have perused
detailed Written Submissions since we are alive to impact that
our opinion would have on a multitude of criminal trials.
26. In conclusion, therefore, we are of the
opinion that the learned Single Judge erred in law in holding that he was devoid
of jurisdiction so far as the application presented to him by the Appellant
before us was concerned.Conceptually, he could have declined to accept
the prayer to surrender to the Courts’ custody, although, we are presently not
aware of any reason for this option to be exercised. Once the prayer for
surrender is accepted, the Appellant before us would come into the custody
of the Court within the
contemplation of Section 439 CrPC.The Sessions
Court as well as the High Court, both of which exercised concurrent
powers under Section 439, would then have to venture to the merits of the
matter so as to decide whether the applicant/Appellant had shown
sufficient reason or grounds for being enlarged on bail.
27.The impugned Order is, accordingly, set
aside. The Learned Single Judge shall consider the Appellant’s plea for
surrendering to the Court and dependent on that decision, the Learned Single
Judge shall, thereafter,consider the Appellant’s plea for his being
granted bail.The Appellant shall not be arrested for a period of two weeks or
till the final disposal of the said application,whichever is later.We expect that
the learned Single Judge shall remain impervious to any pressure that may
be brought to bear upon
him either from the public or from the media as
this is the fundamental and onerous duty cast on every Judge.
28. The appeal is allowed in the above terms.
J.[K.S.RADHAKRISHNAN]
J.[VIKRAMAJIT SEN]
New Delhi;
March 27, 2014.
