acuused can directly approach high court or sessions court for regular bail : Supreme Court

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
1
Page 2
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
2
Page 3
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
3
Page 4
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
4
Page 5
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
5
Page 6
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.
6
Page 7
(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
7
Page 8
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
8
Page 9
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
9
Page 10
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 emblazened
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
1
Page 11
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.
11
Page 12
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,
1
Page 13
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
1
Page 14
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
1
Page 15
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
1
Page 16
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 ar-
1
Page 17
rest 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-
1
Page 18
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
1
Page 19
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
1
Page 20
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
2
Page 21
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
2
Page 22
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
2
Page 23
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
2
Page 24
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
2
Page 25
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.
2
Page 26
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
2
Page 27
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
2
Page 28
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
2
Page 29
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
2
Page 30
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
3
Page 31
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
3
Page 32
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
3
Page 33
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
3
Page 34
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
3
Page 35
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…..
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
3
Page 36
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 crossexamination
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
3
Page 37
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.
3
Page 38
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
3
Page 39
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
3
Page 40
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.
4