In a path-breaking Judgment, a two-Judge Bench of
the Supreme Court has held that there are no restrictions on the High Court or
Sessions Court to entertain an application for bail, provided, accused is in
custody. The judgment has put an to end the decades old practice of first
filing a regular Bail Application before a Magistrate having jurisdiction, and
get it rejected for the purpose of approaching the Sessions Court or High Court
for bail.
Regarding
the power of Sessions Court the Court proceeds as follows; “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 to move the Sessions Judge, or by further empowering
the Additional Sessions Judge hearing other Bail Applications whether post
committal or as the Appellate Court, to also entertain Bail Applications at the
pre-committal stage.
REPORTABLE
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
Criminal Procedure (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 twofold; 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 otherwise 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; CR No.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 Sections 436 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 Public Prosecutor should be put on notice. We have not
found any provision in the CrPC or elsewhere, nor have any been brought to our
ken, curtailing the power of either of the superior Courts to entertain and
decide pleas for bail. Furthermore, it is incongruent that in the face of the Magistrate
being virtually disempowered to grant bail in the event of detention or arrest
without warrant of any person accused of or suspected of the commission of any
non-bailable offence punishable by death or imprisonment for life, no Court is
enabled to extend him succour. Like the science of physics, law also abhors the
existence of a vacuum, as is adequately adumbrated by the common law maxim,
viz. ‘where there is a right there is a remedy’. The universal right of
personal liberty emblazoned by Article 21 of our Constitution, being
fundamental to the very existence of not only to a citizen of India but to
every person, cannot be trifled with merely on a presumptive plane. We should
also keep in perspective the fact that Parliament has carried out amendments to
this pandect comprising Sections 437 to 439, and, therefore, predicates on the
well established 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 until they get tried in a court or if someone is being
held in a particular type of custody, 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 caution, i.e. of apprising the detainee of his
Constitutional rights. In 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 CareswellOnt
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 bare arrest and held that the accused was not arrested
and thus could not have been guilty of “escaping from lawful custody”. More
recently, the Supreme Court of Canada has clarified in R. vs Suberu [2009] S.C.J.No.33 that detention transpired only upon
the interaction having the consequence of a significant deprivation of liberty.
Further, in Berkemer vs McCarty 468 U.S.
420 (1984), a roadside questioning of a motorist detained pursuant to a routine
traffic stop was not seen as analogous to custodial interrogation 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 discipline demands and constrains us also to
adhere to Niranjan Singh; ergo, we reiterate that a person is in custody no
sooner he surrenders before the police or before the appropriate Court. This
enunciation of the law is also available in three decisions in which Arijit Pasayat J spoke for the 2-Judge Benches,
namely (a) Nirmal Jeet Kaur vs State of
M.P. (2004) 7 SCC 558 and (b) Sunita
Devi vs State of Bihar (2005) 1 SCC 608, and (c) Adri Dharan Das vs State of West Bengal, (2005) 4 SCC 303, where
the Co-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 Niranjan Singh (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 earliest view 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 Singh Sibbia
or any other decision where the scope and sweep of anticipatory bail was at the
fulcrum of the conundrum.
17.
Recently, in Dinesh Kumar, this conundrum came to be considered again. 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, owing
to it having endured over two score years of consideration, leading to the
position that 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 438 CrPC.
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. Any remaining doubt would
be dispelled on a perusal of Ranjit 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 Section 439 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 not
feel that we should interfere with a discretion exercised by the two courts
below.” ( Emphasis added by us)
It should not need belabouring 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) 2 SCC 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:-
“19
… Besides, if and when the occasion arises, it may be possible for the
prosecution to claim the benefit of Section 27 of the Evidence Act in regard to
a discovery of facts made in 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 to move the Sessions Judge, or by further empowering the
Additional Sessions Judge hearing other Bail Applications whether post
committal or as the Appellate 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, AIR 1967 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 keeping themselves away from
the investigating agencies for months on end. The argument 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 opining thus:-
“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…..
xxx xxxx xxx
“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 and 302 were also adverted to and,
thereafter, it was opined that a private person is 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 of 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
informant or 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.
