“There is phenomenal increase in matrimonial disputes in recent years.
The institution of marriage is greatly revered in this country. Section
498-A of the IPC was introduced with avowed object to combat the menace of
harassment to a woman at the hands of her husband and his relatives. The
fact that Section 498-A is a cognizable and non-bailable offence has lent
it a dubious place of pride amongst the provisions that are used as weapons
rather than shield by disgruntled wives. The simplest way to harass is to
get the husband and his relatives arrested under this provision. In a
quite number of cases, bed-ridden grand-fathers and grand-mothers of the
husbands, their sisters living abroad for decades are arrested. “Crime in
India 2012 Statistics” published by National Crime Records Bureau,
Ministry of Home Affairs shows arrest of 1,97,762 persons all over India
during the year 2012 for offence under Section 498-A of the IPC, 9.4% more
than the year 2011. Nearly a quarter of those arrested under this
provision in 2012 were women i.e. 47,951 which depicts that mothers and
sisters of the husbands were liberally included in their arrest net. Its
share is 6% out of the total persons arrested under the crimes committed
under Indian Penal Code. It accounts for 4.5% of total crimes committed
under different sections of penal code, more than any other crimes
excepting theft and hurt. The rate of charge-sheeting in cases under
Section 498A, IPC is as high as 93.6%, while the conviction rate is only
15%, which is lowest across all heads. As many as 3,72,706 cases are
pending trial of which on current estimate, nearly 3,17,000 are likely to
result in acquittal.

 

Arrest brings humiliation, curtails freedom and cast scars forever.
Law makers know it so also the police. There is a battle between the law
makers and the police and it seems that police has not learnt its lesson;
the lesson implicit and embodied in the Cr.PC. It has not come out of its
colonial image despite six decades of independence, it is largely
considered as a tool of harassment, oppression and surely not considered a
friend of public. The need for caution in exercising the drastic power of
arrest has been emphasized time and again by Courts but has not yielded
desired result. Power to arrest greatly contributes to its arrogance so
also the failure of the Magistracy to check it. Not only this, the power
of arrest is one of the lucrative sources of police corruption. The
attitude to arrest first and then proceed with the rest is despicable. It
has become a handy tool to the police officers who lack sensitivity or act
with oblique motive.”



 

—————————————————————————————————————————————————————————————————-

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1277 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)
ARNESH KUMAR ….. APPELLANT

VERSUS

STATE OF BIHAR & ANR. …. RESPONDENTS
J U D G M E N T
Chandramauli Kr. Prasad

The petitioner apprehends his arrest in a case under Section 498-A of
the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of
the Dowry Prohibition Act, 1961. The maximum sentence provided under
Section 498-A IPC is imprisonment for a term which may extend to three
years and fine whereas the maximum sentence provided under Section 4 of the
Dowry Prohibition Act is two years and with fine.

Petitioner happens to be the husband of respondent no.2 Sweta Kiran.
The marriage between them was solemnized on 1st July, 2007. His attempt to
secure anticipatory bail has failed and hence he has knocked the door of
this Court by way of this Special Leave Petition.

 

Leave granted.

 

In sum and substance, allegation levelled by the wife against the
appellant is that demand of Rupees eight lacs, a maruti car, an
air-conditioner, television set etc. was made by her mother-in-law and
father-in-law and when this fact was brought to the appellant’s notice, he
supported his mother and threatened to marry another woman. It has been
alleged that she was driven out of the matrimonial home due to non-
fulfilment of the demand of dowry.

 

Denying these allegations, the appellant preferred an application for
anticipatory bail which was earlier rejected by the learned Sessions Judge
and thereafter by the High Court.

 

There is phenomenal increase in matrimonial disputes in recent years.
The institution of marriage is greatly revered in this country. Section
498-A of the IPC was introduced with avowed object to combat the menace of
harassment to a woman at the hands of her husband and his relatives. The
fact that Section 498-A is a cognizable and non-bailable offence has lent
it a dubious place of pride amongst the provisions that are used as weapons
rather than shield by disgruntled wives. The simplest way to harass is to
get the husband and his relatives arrested under this provision. In a
quite number of cases, bed-ridden grand-fathers and grand-mothers of the
husbands, their sisters living abroad for decades are arrested. “Crime in
India 2012 Statistics” published by National Crime Records Bureau,
Ministry of Home Affairs shows arrest of 1,97,762 persons all over India
during the year 2012 for offence under Section 498-A of the IPC, 9.4% more
than the year 2011. Nearly a quarter of those arrested under this
provision in 2012 were women i.e. 47,951 which depicts that mothers and
sisters of the husbands were liberally included in their arrest net. Its
share is 6% out of the total persons arrested under the crimes committed
under Indian Penal Code. It accounts for 4.5% of total crimes committed
under different sections of penal code, more than any other crimes
excepting theft and hurt. The rate of charge-sheeting in cases under
Section 498A, IPC is as high as 93.6%, while the conviction rate is only
15%, which is lowest across all heads. As many as 3,72,706 cases are
pending trial of which on current estimate, nearly 3,17,000 are likely to
result in acquittal.

 

Arrest brings humiliation, curtails freedom and cast scars forever.
Law makers know it so also the police. There is a battle between the law
makers and the police and it seems that police has not learnt its lesson;
the lesson implicit and embodied in the Cr.PC. It has not come out of its
colonial image despite six decades of independence, it is largely
considered as a tool of harassment, oppression and surely not considered a
friend of public. The need for caution in exercising the drastic power of
arrest has been emphasized time and again by Courts but has not yielded
desired result. Power to arrest greatly contributes to its arrogance so
also the failure of the Magistracy to check it. Not only this, the power
of arrest is one of the lucrative sources of police corruption. The
attitude to arrest first and then proceed with the rest is despicable. It
has become a handy tool to the police officers who lack sensitivity or act
with oblique motive.

Law Commissions, Police Commissions and this Court in a large number
of judgments emphasized the need to maintain a balance between individual
liberty and societal order while exercising the power of arrest. Police
officers make arrest as they believe that they possess the power to do so.
As the arrest curtails freedom, brings humiliation and casts scars forever,
we feel differently. We believe that no arrest should be made only
because the offence is non-bailable and cognizable and therefore, lawful
for the police officers to do so. The existence of the power to arrest is
one thing, the justification for the exercise of it is quite another. Apart
from power to arrest, the police officers must be able to justify the
reasons thereof. No arrest can be made in a routine manner on a mere
allegation of commission of an offence made against a person. It would be
prudent and wise for a police officer that no arrest is made without a
reasonable satisfaction reached after some investigation as to the
genuineness of the allegation. Despite this legal position, the Legislature
did not find any improvement. Numbers of arrest have not decreased.
Ultimately, the Parliament had to intervene and on the recommendation of
the 177th Report of the Law Commission submitted in the year 2001, Section
41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present
form came to be enacted. It is interesting to note that such a
recommendation was made by the Law Commission in its 152nd and 154th Report
submitted as back in the year 1994. The value of the proportionality
permeates the amendment relating to arrest. As the offence with which we
are concerned in the present appeal, provides for a maximum punishment of
imprisonment which may extend to seven years and fine, Section 41(1)(b),
Cr.PC which is relevant for the purpose reads as follows:

“41. When police may arrest without warrant.-(1) Any police officer may
without an order from a Magistrate and without a warrant, arrest any person

(a)x x x x x x

(b)against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence punishable with imprisonment for a term
which may be less than seven years or which may extend to seven years
whether with or without fine, if the following conditions are satisfied,
namely :-

(i) x x x x x

(ii) the police officer is satisfied that such arrest is necessary –

to prevent such person from committing any further offence; or

for proper investigation of the offence; or

to prevent such person from causing the evidence of the offence to
disappear or tampering with such evidence in any manner; or

to prevent such person from making 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 the police officer; or

as unless such person is arrested, his presence in the Court whenever
required cannot be ensured,

 

and the police officer shall record while making such arrest, his reasons
in writing:

Provided that a police officer shall, in all cases where the arrest of a
person is not required under the provisions of this sub-section, record the
reasons in writing for not making the arrest.

 

X x x x x x

 

From a plain reading of the aforesaid provision, it is evident that a
person accused of offence punishable with imprisonment for a term which may
be less than seven years or which may extend to seven years with or without
fine, cannot be arrested by the police officer only on its satisfaction
that such person had committed the offence punishable as aforesaid. Police
officer before arrest, in such cases has to be further satisfied that such
arrest is necessary to prevent such person from committing any further
offence; or for proper investigation of the case; or to prevent the accused
from causing the evidence of the offence to disappear; or tampering with
such evidence in any manner; or to prevent such person from making any
inducement, threat or promise to a witness so as to dissuade him from
disclosing such facts to the Court or the police officer; or unless such
accused person is arrested, his presence in the court whenever required
cannot be ensured. These are the conclusions, which one may reach based on
facts. Law mandates the police officer to state the facts and record the
reasons in writing which led him to come to a conclusion covered by any of
the provisions aforesaid, while making such arrest. Law further requires
the police officers to record the reasons in writing for not making the
arrest. In pith and core, the police office before arrest must put a
question to himself, why arrest? Is it really required? What purpose it
will serve? What object it will achieve? It is only after these questions
are addressed and one or the other conditions as enumerated above is
satisfied, the power of arrest needs to be exercised. In fine, before
arrest first the police officers should have reason to believe on the basis
of information and material that the accused has committed the offence.
Apart from this, the police officer has to be satisfied further that the
arrest is necessary for one or the more purposes envisaged by sub-clauses
(a) to (e) of clause (1) of Section 41 of Cr.PC.

 

An accused arrested without warrant by the police has the
constitutional right under Article 22(2) of the Constitution of India and
Section 57, Cr.PC to be produced before the Magistrate without unnecessary
delay and in no circumstances beyond 24 hours excluding the time necessary
for the journey. During the course of investigation of a case, an accused
can be kept in detention beyond a period of 24 hours only when it is
authorised by the Magistrate in exercise of power under Section 167 Cr.PC.
The power to authorise detention is a very solemn function. It affects the
liberty and freedom of citizens and needs to be exercised with great care
and caution. Our experience tells us that it is not exercised with the
seriousness it deserves. In many of the cases, detention is authorised in a
routine, casual and cavalier manner. Before a Magistrate authorises
detention under Section 167, Cr.PC, he has to be first satisfied that the
arrest made is legal and in accordance with law and all the constitutional
rights of the person arrested is satisfied. If the arrest effected by the
police officer does not satisfy the requirements of Section 41 of the Code,
Magistrate is duty bound not to authorise his further detention and release
the accused. In other words, when an accused is produced before the
Magistrate, the police officer effecting the arrest is required to furnish
to the Magistrate, the facts, reasons and its conclusions for arrest and
the Magistrate in turn is to be satisfied that condition precedent for
arrest under Section 41 Cr.PC has been satisfied and it is only thereafter
that he will authorise the detention of an accused. The Magistrate before
authorising detention will record its own satisfaction, may be in brief but
the said satisfaction must reflect from its order. It shall never be
based upon the ipse dixit of the police officer, for example, in case the
police officer considers the arrest necessary to prevent such person from
committing any further offence or for proper investigation of the case or
for preventing an accused from tampering with evidence or making inducement
etc., the police officer shall furnish to the Magistrate the facts, the
reasons and materials on the basis of which the police officer had reached
its conclusion. Those shall be perused by the Magistrate while authorising
the detention and only after recording its satisfaction in writing that the
Magistrate will authorise the detention of the accused. In fine, when a
suspect is arrested and produced before a Magistrate for authorising
detention, the Magistrate has to address the question whether specific
reasons have been recorded for arrest and if so, prima facie those reasons
are relevant and secondly a reasonable conclusion could at all be reached
by the police officer that one or the other conditions stated above are
attracted. To this limited extent the Magistrate will make judicial
scrutiny.

 

Another provision i.e. Section 41A Cr.PC aimed to avoid
unnecessary arrest or threat of arrest looming large on accused requires to
be vitalised. Section 41A as inserted by Section 6 of the Code of
Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant
in the context reads as follows:

“41A. Notice of appearance before police officer.-(1) The police officer
shall, in all cases where the arrest of a person is not required under the
provisions of sub-section (1) of Section 41, issue a notice directing the
person against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence, to appear before him or at such other place
as may be specified in the notice.

 

(2) Where such a notice is issued to any person, it shall be the duty of
that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he
shall not be arrested in respect of the offence referred to in the notice
unless, for reasons to be recorded, the police officer is of the opinion
that he ought to be arrested.

 

(4) Where such person, at any time, fails to comply with the terms of the
notice or is unwilling to identify himself, the police officer may, subject
to such orders as may have been passed by a competent Court in this behalf,
arrest him for the offence mentioned in the notice.”

 

Aforesaid provision makes it clear that in all cases where the
arrest of a person is not required under Section 41(1), Cr.PC, the police
officer is required to issue notice directing the accused to appear before
him at a specified place and time. Law obliges such an accused to appear
before the police officer and it further mandates that if such an accused
complies with the terms of notice he shall not be arrested, unless for
reasons to be recorded, the police office is of the opinion that the arrest
is necessary. At this stage also, the condition precedent for arrest as
envisaged under Section 41 Cr.PC has to be complied and shall be subject to
the same scrutiny by the Magistrate as aforesaid.

We are of the opinion that if the provisions of Section 41,
Cr.PC which authorises the police officer to arrest an accused without an
order from a Magistrate and without a warrant are scrupulously enforced,
the wrong committed by the police officers intentionally or unwittingly
would be reversed and the number of cases which come to the Court for grant
of anticipatory bail will substantially reduce. We would like to emphasise
that the practice of mechanically reproducing in the case diary all or most
of the reasons contained in Section 41 Cr.PC for effecting arrest be
discouraged and discontinued.

Our endeavour in this judgment is to ensure that police officers do not
arrest accused unnecessarily and Magistrate do not authorise detention
casually and mechanically. In order to ensure what we have observed above,
we give the following direction:

All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498-A of the IPC is
registered but to satisfy themselves about the necessity for arrest under
the parameters laid down above flowing from Section 41, Cr.PC;

All police officers be provided with a check list containing specified sub-
clauses under Section 41(1)(b)(ii);

The police officer shall forward the check list duly filed and furnish the
reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further
detention;

The Magistrate while authorising detention of the accused shall peruse the
report furnished by the police officer in terms aforesaid and only after
recording its satisfaction, the Magistrate will authorise detention;

The decision not to arrest an accused, be forwarded to the Magistrate
within two weeks from the date of the institution of the case with a copy
to the Magistrate which may be extended by the Superintendent of police of
the district for the reasons to be recorded in writing;

Notice of appearance in terms of Section 41A of Cr.PC be served on the
accused within two weeks from the date of institution of the case, which
may be extended by the Superintendent of Police of the District for the
reasons to be recorded in writing;

Failure to comply with the directions aforesaid shall apart from rendering
the police officers concerned liable for departmental action, they shall
also be liable to be punished for contempt of court to be instituted before
High Court having territorial jurisdiction.

Authorising detention without recording reasons as aforesaid by the
judicial Magistrate concerned shall be liable for departmental action by
the appropriate High Court.

 

We hasten to add that the directions aforesaid shall not only apply to the
cases under Section 498-A of the I.P.C. or Section 4 of the Dowry
Prohibition Act, the case in hand, but also such cases where offence is
punishable with imprisonment for a term which may be less than seven years
or which may extend to seven years; whether with or without fine.

 

We direct that a copy of this judgment be forwarded to the Chief
Secretaries as also the Director Generals of Police of all the State
Governments and the Union Territories and the Registrar General of all the
High Courts for onward transmission and ensuring its compliance.

 

By order dated 31st of October, 2013, this Court had granted
provisional bail to the appellant on certain conditions. We make this order
absolute.

 

In the result, we allow this appeal, making our aforesaid order dated 31st
October, 2013 absolute; with the directions aforesaid.

 

………………………………………………………………J

(CHANDRAMAULI KR. PRASAD)

 

………………………………………………………………J

(PINAKI CHANDRA GHOSE)

 

NEW DELHI,
July 2, 2014.

 
———————–
21

 

 

 

 

 

Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.” The
provision no doubt requires the prosecution to furnish the copies of the statements of the persons whose
evidence is required to be recorded in the case. The purpose behind this is obviously to enable the accused to
meet the case that the witness is likely to say before the Court and enable him to properly cross-examine him
in view of his previous statement made before the investigating office

——————————————————————————————————————————————————————————————–

Gujarat High Court
Gujarat High Court
State Of Gujarat vs Thacker Kaku And Ors. on 16 September, 1965
Equivalent citations: AIR 1966 Guj 217, 1966 CriLJ 990, (1966) 0 GLR 829
Author: N Shelat
Bench: N Shelat, A Sarela
JUDGMENT
N.G. Shelat, J.
1. to 8. xx xx xx
9. With regard to the evidence of Gulabrai, it was urged by Mr. Mankad, the learned advocate appearing for
respondent No. 1, that his statement recorded by the investigating officer in the case was not supplied to the
accused as is required under Section 173 Sub-section (4) of the Criminal Procedure Code and that
consequently the probative value of his evidence would be materially affected. Sub-section (4) of Section 173
of the Criminal Procedure Code provides as under.-
After forwarding a report under this Section, the officer in charge of the police station shall, before the
commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of
the report for-worded under Sub-section (1) and of the first information report recorded under Section 184 and
of all other documents or relevant extract thereof, on which the prosecution proposes to rely, including the
statements and confessions, if any recorded under Section 164 and the statements recorded under Sub-section
(3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.” The
provision no doubt requires the prosecution to furnish the copies of the statements of the persons whose
evidence is required to be recorded in the case. The purpose behind this is obviously to enable the accused to
meet the case that the witness is likely to say before the Court and enable him to properly cross-examine him
in view of his previous statement made before the investigating officer. The Chapter XVIII of the Criminal
Procedure Code relates to the procedure to be followed by the Magistrate in inquiries preparatory to
commitment, in respect of proceedings instituted on a police report received by him under Section 173 of the
Criminal Procedure Code. Sub-section (3) of Section 207A of the Criminal Procedure Code then provides that
-
“At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before
him, satisfy himself that the documents referred to in Section 173 have been furnished to the accused and If he
finds that the accused has not been furnished with such documents or any of them, he shall cause the same to
be so furnished.”
A similar provision is contained in Section 251A of the Criminal Procedure Code, laying down procedure to
be adopted in the trial of warrant cases instituted on a police report, by the Magistrate. If appears from these
provisions that the obligation is cast on the Magistrate to satisfy himself that the documents referred to in
Section 173 have been furnished to the accused and if he finds that the accused has not been furnished with
such documents or any of them he shall cause the same to be so furnished In light of these provisions the
grievance of the accused as urged by Mr. K. N. Mankad for the respondent No. 1, has to be examined. Now it
is not suggested, much less said that the committing Magistrate had not made inquiry from the accused and
not satisfied in that respect. It has to be taken that the procedure as required in law was followed by him and
he had satisfied himself that the accused had recited all such statements as contemplated under Section 173(4)
read with Section 207A, Sub-section (3) of the Criminal Procedure Code The charge-sheet submitted by the
police in the case described the name of the witness Gulabrai as one of the witnesses to be examined for
prosecution in the case. When that was so, and if the accused had in fact not received the police statement of
witness Gulabrai. it was necessary for the accused to move the committing Magistrate before committal of the
accused to the Court of Sessions, that they have not received such a statement, and if they failed to do so then,
State Of Gujarat vs Thacker Kaku And Ors. on 16 September, 1965

 

we are informed that it was in practise in the State of U.P. in various courts that they refuse to supply the certified copies of 164 Cr.P.C. statement of a witness or the victim of an offence even if the party is willing to obtain a copy of such a document and is ready to pay the cost legally admissible for issuing the same.
We were in fact not ready to accept the contention. We were, prima facie, of the view that a statement under Section 164, Cr.P.C. was required to be recorded by a judicial Magistrate under that particular section in due discharge of his judicial functions and, as such, the act of recording the statement was a judicial act which was performed by a public servant while discharging his judicial functions and in our considered view that particular document is relevant under Section 35 of the Evidence Act as also under Section 72 of the Indian Evidence Act and as such, assumes the character of being a public document.”

 

———————————————————————————————————————————————————————————————————-

 

HIGH COURT OF JUDICATURE AT ALLAHABAD 

AFR
Court No.55
Criminal Misc. Writ Petition No. 3567 of 2012.
Raju …… Appellant.
Versus
State of U.P. & others ….. Respondents.
Hon’ble Dharnidhar Jha, J.
Hon’ble Ramesh Sinha, J.

We had by our order dated 3.4.2012 directed the petition to be listed before us for deciding the issue as to whether an accused or a victim of an offence was entitled to a copy of the statement of the victim recorded under Section 164, Cr.P.C. by a judicial Magistrate, if an application is duly made and the court fee which is required for obtaining such a copy of such statement is paid by the desirous person.
It so happened that while hearing this petition, we are informed that it was in practise in the State of U.P. in various courts that they refuse to supply the certified copies of 164 Cr.P.C. statement of a witness or the victim of an offence even if the party is willing to obtain a copy of such a document and is ready to pay the cost legally admissible for issuing the same.
We were in fact not ready to accept the contention. We were, prima facie, of the view that a statement under Section 164, Cr.P.C. was required to be recorded by a judicial Magistrate under that particular section in due discharge of his judicial functions and, as such, the act of recording the statement was a judicial act which was performed by a public servant while discharging his judicial functions and in our considered view that particular document is relevant under Section 35 of the Evidence Act as also under Section 72 of the Indian Evidence Act and as such, assumes the character of being a public document.”
We further went on to pass the following order:-
“We require the District and Sessions Judge, Bareilly also to furnish a report as to under what circumstances the copy, which was applied for of the above noted document, was refused to be supplied to the present petitioner. In the meantime, we wish that the petitioner had filed the rejected copy of the application for copy on the present record.”
In the light of the above directions issued to the District and Session Judge, Bareilly on 29.3.2012, the Registrar General of the Court had received a communication from the District and Session Judge, Bareilly vide his memo No. 541/XV dated 3rd April, 2012 in which the learned Judge was referring to Rule 263 of the General Rules (Civil) of the Court to inform us that there was prohibition on supplying the statement of a witness recorded under Section 161, Cr.P.C. or any other part of evidence collected by the Investigating Officer prior to reaching the stage of filing the charge-sheet and as such the accused can never ask for a copy or any part of the case dairy at any stage of the investigation. What the learned Judge further attempted to impress upon us was that the above Rule was created on the basis of a judicial pronouncement in Criminal Misc. Writ Petition No. 5840 of 2005, Mukesh and others Vs. State of U.P.
During the course of present hearing, learned counsel appearing on behalf of the petitioner produced before us yet another judgment rendered by this Court long back in 1932 which is reported in A.I.R. 1932 Allahabad 327, Bashiruddin and another Versus Emperor in which the Court was deciding that the statement under Section 164, Cr.P.C. was a public record and that was bound to be supplied to the accused on admissible cost if he had applied for it. In fact for issuing the above direction, the learned Judge supplied the following reasons:-
“Statements recorded under S. 164, Criminal P.C. are public documents, being the acts of a Judicial Officer done under the provisions of the Criminal Procedure Code, and the public servant in whose custody those documents were, was bound to issue copies thereof. An accused is undoubtedly entitled to inspect statements of prosecution witnesses recorded under S. 164, Criminal P.C. Such statements can be used by the prosecution for the purpose of corroborating the witnesses. They can likewise be used by the defence for the purpose of contradicting such witnesses. S. 164, Criminal P.C. clearly provides that statements recorded under that section shall be forwarded to the Magistrate by whom the case is to be enquired into or tried. It is difficult to appreciate the remark of the learned City Magistrate that the statements in question were not on the record. If they were not till then before him he should have forthwith sent for them, and if they had not been previously forwarded to him they should have been before him without any further delay.
Apart from this aspect of the case, the Magistrate trying the case has to protect the interests of the prosecution and the defence alike; even if the accused were not entitled as of right to inspect such statements, the Magistrate should have had no objection to exercising his discretion in favour of the accused in a matter of that kind. A Magistrate is expected to afford all facilities to the accused not only when he is compelled by law to do so, but also when he has a discretion in the matter and the ends of justice require that the accused should be apprised of what certain prosecution witnesses had previously stated in proceedings under S. 164, Criminal P.C. I am clearly of opinion that the learned Magistrate should have directed copies of the statements under S. 164 to be given to the accused on payment by them of the usual fees and in any case, should have allowed the advocate for the defence to inspect those statements.”
Following the said reason a Division Bench of this Court has rendered yet another judgment in the case of Shankar Lal and others Versus The State reported in A.I.R. 1954 Allahabad 779 (Vol.41, C.N. 308). In Shankar Lal (Supra) the question which is presently being considered by us was not directly in issue. The issue was of non supply of copies of statements of witnesses, whom the prosecution relied for proof of the charges. But for rendering the decision the Division Bench referred to Bashiruddin (Supra).
We had the privilege of perusing the judgment of another Division Bench of the Court in Criminal Misc. Writ Petition No. 5840 of 2005, Mukesh & others Versus State of U.P. & others which is the foundation of Rule 263 of the General Rules (Civil) and we are of the opinion that the judgment in Mukesh (Supra) was on a different issue. The accused had sought the copy of the case diary as the judicial Magistrate had issued process under Section 82 Cr.P.C. on application of police. That petition was dismissed by the Magistrate. The accused filed the writ petition urging that the order rejecting his application for copy of case diary was violative of Articles 21 and 22(1) of the Constitution of India and, as such, prayer (ii) in that Writ Petition was as under :-
“Issue a writ, order or direction in the nature of mandamus directing the respondents to provide copy of the case diary and other proceedings which relate to the petitioners so that they may be able to defend their cases.”
In our opinion, the judgment of the Division Bench in the case of Mukesh (Supra) could not be applied to decide the present issue framed by us.
We are of the opinion that the the statement of an accused or victim or a witness which is to be recorded under Section 164 Cr.P.C., might be a statement recorded during the course of investigation of a case but that is quite different from the statement of witnesses recorded under Section 161 Cr.P.C. The reason is that there is a full fledged provision under Section 164 Cr.P.C. authorizing the recording of such a statement by a judicial Magistrate. The practise and the procedure which is followed in recording such a statement is that the police has to file an application before the head of Magistracy, who is presently the Chief Judicial Magistrate, requesting for the statement of such a person to be recorded. On receipt of such an application, the Chief Judicial Magistrate gets the relevant record before him and thereafter passes an order in token of receipt of such an application and further passes an order upon the same and thereafter direct by the same order for deputation of a Magistrate to record the statement. He may also record the statement himself. In case of other judicial Magistrate being deputed for recording the statement under Section 164 Cr.P.C., the witness along with the judicial record is transmitted to the deputed judicial Magistrate, who records the receipt of the record for the purpose and proceeds to record the statement and as soon as it is recorded, he again records the recording of such a statement in the order-sheet of the same record and transmits the record along with the recorded statement under Section 164 Cr.P.C. to the Chief Judicial Magistrate. Thus, the whole exercise appears judicial in nature. Not only that, it further indicates that the orders drawn in the above behalf as also the statement recorded are the records of the judicial acts performed by him in discharge of official and judicial functions by a Judge. The recording of the statements is enjoined by the law of the country and the record in the form the recorded statement under Section 164 Cr.P.C. is the record of the act of a public servant discharging his official and judicial functions. In addition to that the statement recorded under Section 164 Cr.P.C. is never taken out of the judicial record nor it is handed over to the Investigating Officer or any other police officer. The copy of the statement is allowed to be copied in the relevant part of the case dairy. Thus, the recorded statement under Section 164 Cr.P.C. assumes the part of the judicial record of that particular case and, as such, it is the part of the case. This is the reason that we have pointed out that in spite of being a statement of a witness or any other interested person during the course of investigation, the recorded statement under Section 164 Cr.P.C. could not, strictu sensu, be said to be a mere statement during investigation which could be treated as part of the case dairy. It could never be put at par with a statement under Section 161 Cr.P.C. and as such it could never be said to be a part of case dairy.
On the reasons we have just assigned, we are of the opinion that the whole exercise of recording the statement under Section 164 Cr.P.C. has a presumption of regularity attached to it. It has to be presumed that the recording of the statement under Section 164, Cr.P.C. had regularly been performed as is envisages by Section 114 of the Indian Evidence Act. In addition to that, we are of the opinion that the recorded statement being the record indicating the performance of the official and judicial functions or acts of a Judge under the prevailing provisions of the law of the land could be a document properly covered by Section 35 of the Indian Evidence Act and, as such, assumes the character of a public record which is covered by Section 72 of the Evidence Act.
On these terms, we are of the view that any application, if made, by any concerned person to obtain a copy of the statement under Section 164 Cr.P.C., the same could never be denied to him if he is ready to pay the costs admissible under Rules. We are further of the view that this issue was properly considered by the learned Single Judge of the Court in the case of Bashiruddin (Supra) and this was not considered by the Hon’ble Judges of the Division Bench in case of Mukesh (Supra) and as such that decision could not be creating any obstruction in providing a copy of the statement to any person entitled thereto. We as such, are of the opinion that Rule 263 of the General Rules (Civil) of the Court was not relevant and cannot be used for denying the application for copies.
We have perused another document which has been referred to by the District and Session Judge in his letter as Circular Letter No. 29 of 2005. That letter is also not relevant for the present purpose as the very heading of that letter indicates, and rightly, that no accused could have the copy of the case dairy.
For the forgoing reasons, what we find is that no person, who is entitled to a copy of the statement under Section 164 Cr.P.C., could be denied the required copy of the said document, if he is ready to pay the cost admissible under Rules of the Court. The issue framed by us is, accordingly, answered.
Considering the importance of our observations and directions, we are of the view that the copy of this judgment may be circulated among the District Judges and Officers-in-Charge of copying department of different judgeships and with that in our view, we direct the laying down of a copy of the present judgment before the Hon’ble the Chief Justice.
Dated 08.05.2012
Shiraz.

Hon’ble Dharnidhar Jha, J
Hon’ble Ramesh Sinha, J.
Disposed of.
For orders, see order of date
passed on separate sheets.
Dated :- 08.05.2012
Shiraz

 

 

Section 174 in The Indian Penal Code
174. Non-attendance in obedience to an order from public servant.—Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hun­dred rupees, or with both, or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with simple imprison­ment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Illustrations
(a) A, being legally bound to appear before the 1[High Court] at Calcutta, in obedience to a subpoena issuing from that Court, intentionally omits to appear. A has committed the offence de­fined in this section.
(b) A, being legally bound to appear before a 176 [District Judge], as a witness, in obedience to a summons issued by that 2[District Judge] intentionally omits to appear. A has committed the offence defined in this section.
———————————————————————————————————————————————————————————————————

 IN THE HIGH COURT OF DELHI AT NEW DELHI

+ Crl. M.C. No. 4208/2011 & Crl.M.A. 19453/2011 (stay)

% Decided on: 4th January, 2012

MANEESH GOOMER ….. Petitioner Through: Mr. Sidharth Aggarwal, Mr. Simon

Bengamin, Adv.

versus

STATE ….. Respondent Through: Mr. Manoj Ohri, APP for State with

ASI Satbir Singh PS Farsh Bazar.

Coram:

HON’BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1. By the present petition the Petitioner seeks quashing of FIR No. 14/2011 registered under Section 174-A IPC at PS Farsh Bazar.

2. Before adverting to the facts of the case it may be noted that the Petitioner had earlier filed a W.P.(CRL) 412/2011 before this Court with the same prayer seeking quashing of the abovementioned FIR and the proceedings arising therefrom. The said writ petition came up for hearing before this Court on 25th March, 2011 when notice was issued and the Respondent/State was directed to file a reply. The matter was listed on 18th July, 2011 after a status report was filed by the State. On 18 th July, 2011 after the matter was heard, learned counsel for the Petitioner realizing that

Crl.M.C. 4208/2011 Page 1 of 6 the Court was not inclined to grant any relief, sought leave to withdraw the said petition, which was permitted to be withdrawn.

3. On a preliminary issue regarding the maintainability of the present petition posed to the learned counsel for the Petitioner, reliance is placed on Daryao and Ors. Vs. State of U.P. and Ors. AIR 1961 SC 1457 to contend that if a petition is dismissed as withdrawn, it cannot be a bar to a subsequent petition under Article 32 of the Constitution because in such a case there has been no decision on the merits by the Court. No doubt it would not constitute a bar of res-judicata but certainly propriety does not permit the Courts to entertain repeated petitions for the same prayer when the Petitioner as seeing that no relief is being granted, cleverly withdraws the petition.

4. Learned counsel for the Petitioner contends that a complaint under Section 138 Negotiable Instruments Act (in short N.I. Act) was filed against the Petitioner. During the said proceedings summons were not served on the Petitioner and without service of summons, the next process of issuing warrants and non-bailable warrants were resorted to. Even the procedure adopted under Section 82 Cr.P.C. was illegal as the proclamation was not published in the newspaper “The Statesman” as directed by the Court but in another news daily. Further the statutory time of 30 days notice was not adhered to. Moreover, since the Petitioner appeared before the Learned Trial Court in the proceedings under Section 138 of the N.I. Act, the Petitioner was no more an absconder and the process under Section 83 Cr.P.C. was recalled. In view thereof the direction of the Learned Metropolitan Magistrate for registration of FIR under Section 174-A IPC and the continuation thereof is an abuse of the process of the Court and is required to

Crl.M.C. 4208/2011 Page 2 of 6 be quashed to meet the ends of justice. It is also contended that cognizance for an offence punishable under Section 174-A IPC can be taken only on a complaint filed under Section 195 Cr.P.C. and in the absence of a complaint, no cognizance on the charge-sheet could have been taken.

5. Learned APP on the other hand contends that the essential requirement under Section 82(2)(i) Cr.P.C. is of affixation and the requirement under Clause (iii) for publication in the newspaper is not mandatory. Hence in the absence of a proper publication also, if an affixation alone is made the requirement of procedure under Section 82 Cr.P.C. stands satisfied. Even the Learned Trial Court noted satisfaction on the basis of return of process under Section 82 Cr.P.C. by way of affixation and had thus directed registration of FIR under Section 174-A IPC.

6. I have heard learned counsel for the parties. The facts of the present case are that a complaint was filed under Section 138 of the NI Act against the Petitioner. On 20th April, 2008 summons were issued to the Petitioner. As per the record of the Trial Court the process was served on Ms. Seema, wife of the Petitioner. Thereafter again processes were issued, however the Petitioner remained unserved. Thus on 28th July, 2009 the Learned Trial Court issued bailable warrants in the sum of Rs. 3000/- returnable on 9th October, 2009. However, the said process could also not been executed. Since the bailable warrants also could not be executed, the Learned Trial Court issued non-bailable warrants on 9th October, 2009 returnable for 4th December, 2009. Even the non-bailable warrants were received back unexecuted with the report that the accused was hiding himself. Thus, the Learned Trial Court issued process under Section 82 Cr.P.C. against the

Crl.M.C. 4208/2011 Page 3 of 6 Petitioner for 15th April, 2010. It was also directed that the process be issued through publication having circulation in the newspaper “Statesman” and also be given dasti. After the process of Section 82 Cr.P.C. the proclamation under Section 83 Cr.P.C. was issued against the Petitioner vide order dated 29th September, 2010 and the Learned Trial Court directed registration of FIR under Section 174-A IPC.

7. Since coercive actions were taken, the Petitioner settled the matter with the complainant in complaint under Section 138 NI Act and, thus, the said complaint was permitted to be withdrawn vide order dated 16 th October, 2010. Thereafter, the Petitioner moved an application for recalling of the proclamation under Section 83 Cr.P.C. The Learned Metropolitan Magistrate vide order dated 9th march, 2011 recalled the proclamation, since the complaint under Section 138 NI Act had already been withdrawn and the Petitioner had been acquitted therein. The Petitioner thereafter filed a petition being W.P.(CRL) 412/2011 before this Court seeking quashing of the abovementioned FIR. This Court issued notice and after issuing notice, on the next date the learned counsel for the Petitioner after addressing arguments sought leave to withdraw the petition which was permitted. Now the present petition has been filed with a few more grounds.

8. As observed earlier, de-hors the fact that the earlier petition was dismissed as withdrawn this Court had heard the learned counsel for the parties on merits. As regards the contention of the Petitioner that the Petitioner was not served at the right address as Ms. Seema is not the wife of the Petitioner, it may be noted that this is an issue which would have to be adjudicated during trial whether the service was affected on the right person

Crl.M.C. 4208/2011 Page 4 of 6 i.e. on the Petitioner’s wife or not. Merely on the Petitioner’s contending that the process was not affected on his wife, this Court cannot come to the conclusion that there was no service of the summons.

9. As regards the next contention of the Petitioner that for a prosecution under Section 174-A IPC no cognizance can be taken on a charge-sheet but on a complaint under Section 195 Cr.P.C., it may be noted that Section 174- A IPC was introduced in the Code with effect from 23rd June, 2006. Section 195(1) Cr.P.C. provides that no Court shall take cognizance of offences punishable under Section 172 to 188 (both inclusive) of the IPC or of the abatement, or attempt to commit the said offences, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Section 195 Cr.P.C. has not been correspondingly amended so as to include Section 174-A IPC which was brought into the Penal Code with effect from 23rd June, 2006. The Legislature was conscious of this fact and that is why though all other offences under chapter X of the Criminal Procedure Code are non- cognizable, offence punishable under Section 174-A IPC is cognizable. Thus the Police officer on a complaint under Section 174-A IPC is competent to register FIR and after investigation thereon file a charge-sheet before the Court of Magistrate who can take cognizance thereon. Thus, I find no merit in the contention raised by the Learned Counsel for the Petitioner.

10. Adverting to the last contention of the learned counsel for the Petitioner that the process under Section 82 Cr.P.C. was illegal as the proclamation was not in the newspaper as directed by the Court but in the

Crl.M.C. 4208/2011 Page 5 of 6 other newspaper, it may be noted that Section 82(2) Cr.P.C. provides for the procedure for publishing the proclamation. Clause (i) of Sub-Section (2) is mandatory in nature as it directs that the proclamation shall be publically read in some conspicuous place of the town in which the person ordinarily resides, shall be affixed in some conspicuous place of the house in which the person ordinarily resides, and shall be affixed in some conspicuous part of the Court- house. However, Clause (ii) of Section 82(2) Cr.P.C. is not mandatory and it states that the Court may also if it thinks fit direct a copy of the proclamation to be published in a daily newspaper circulated in the place in which such person ordinarily resides. Since Clause (ii) is not mandatory in nature, the non-adherence to the strict compliance thereon will not vitiate the process under Section 82 Cr.P.C. The abovementioned FIR for offence punishable under Section 174-A IPC is an independent cause of action and merely because the complaint case under Section 138 NI Act is settled, there is no reason that the abovementioned FIR be also quashed.

11. The present petition and application are clearly an abuse of the process of the Court by the Petitioner. Hence the same are dismissed with a cost of Rs. 5000/- to be paid to the Delhi High Court Legal Services Committee by the Petitioner within two weeks.

(MUKTA GUPTA)

JUDGE

JANUARY 4, 2012

 

Section 175 in The Indian Penal Code
175. Omission to produce 1[document or electronic record] to public servant by person legally bound to produce it.—Whoever, being legally bound to produce or deliver up any 1[document or electronic record] of any public servant, as such, intentionally omits so to produce or deliver up the same, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hun­dred rupees, or with both, or, if the 1[document or electronic record] is to be produced or delivered up to a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Illustration A, being legally bound to produce a document before a [District Court], intentionally omits to produce the same. A has committed the offence defined in this section.

 

 

 

 

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 6th March, 2013

+ CRL.M.C.1752/2012

SAKET AGGARWAL ….. Petitioner Through: Mr. Mohit Mathur with

Mr. Vikram Bajaj, Advocates

Versus

DIRECTORATE OF REVENUE ….. Respondent

Through: Mr. Satish Aggarwala, Advocate

CORAM:

HON’BLE MR. JUSTICE G.P. MITTAL

JUDGMENT

G. P. MITTAL, J. (ORAL)

1. Aggrieved by an order dated 16.07.2011 passed by the learned Additional Chief Metropolitan Magistrate (ACMM), New Delhi, the Petitioner seeks to invoke the inherent powers of this Court under Section 482 of the Code of Criminal Procedure (Code) to set aside the summoning order and quashing of the complaint for an offence punishable under Section 174 and 175 of Indian Penal Code(IPC).

2. As per the averments made in the Petition, one M/s. Kartik Traders having its office at S-27, Brindavan Garden, Sahibabad imported 22400

Crl.M.C.1752/2012 Page 1 of 10 kgs of ‘dry medicinal herb material Inula Racemosa’ and 400 kgs of ‘dry medicinal herb material Chinese Ginseng’ which arrived at Inland Container Depot(ICD) Tuglakabad on 07.01.2008. The officials of DRI after receipt of certain information that the importer was importing some restricted items examined the said consignment on 08.01.2008 in presence of the proprietor of Kartik Traders, his custom house agent, two independent witnesses and officers of Wildlife Crime Control Bureau. The Petitioner was summoned by the Customs Officer to appear before him on 11.01.2008 along with all import and sale documents for the last five years in respect of earlier said M/s. Kartik Traders. The summons were handed over to the father of the Petitioner on 11.01.2008 at about 2:00 am. Since the Petitioner was out of town, he wrote a letter to the Respondent and expressed his inability to appear on 11.01.2008. However, the Petitioner showed his willingness to appear after 5-7 days. Another summons were issued for the Petitioner’s appearance on 22.01.2008 at 2:00 pm. The Petitioner again sought 10 days time as his wife was not keeping good health and was under medication. The instant complaint under Sections 174 and 175 of the Indian Penal Code(IPC) was filed by the Respondent against the Petitioner on the ground that the Petitioner had committed an offence punishable under Sections 174 and 175 IPC as he intentionally omitted to appear before a public servant although he was to appear before the Respondent in pursuance of the summons. Similarly, violation of the provision of Section 175 IPC was alleged on the ground that the Petitioner being legally bound to produce or deliver all documents failed to produce the same.

3. A short submission raised by Mr. Mohit Mathur, the learned counsel for the Petitioner is that it is admitted case of the parties that as per the

Crl.M.C.1752/2012 Page 2 of 10 provision of Section 108 of the Customs Act, 1962, as it was in force at the time of issuance of the earlier said summons, only a Gazetted Officer of Customs duly empowered by the Central Government in this behalf was entitled to summon any person or to produce documents or other things which were necessary for any inquiry by the said officer under the Customs Act. However, as per the M.F.(D.R.) Notification No.8/2008- Cus.(N.T.) dated 20th February, 2008 issued by the Government of India which came into force on 10.05.2008, the words ‘duly empowered by the Central Government in this behalf’ were omitted w.e.f. 13.07.2006. Thus, as per the provision of Section 108 of the Act which was in force at the time of issuance of the summons for appearance of the Petitioner and production of documents for 11.01.2008 and 22.01.2008, the customs officer who issued the summons was not duly empowered by the Central Government in this behalf. Thus, he was not entitled to issue the summons under Section 108 of the Act. However, by virtue of the amendment in Section 108 of the Act which came into force retrospectively w.e.f. 13.07.2006, he got an authority to issue the summons as required under Section 108 of the Act. The only question for determination is whether on account of the retrospective amendment in Section 108 of the Act, the Petitioner could be prosecuted under Sections 174 and 175 IPC?

4. This question is answered by a judgment of a Co-ordinate Bench of this Court in Rakesh Kumar Goyal v. NCT of Delhi & Anr., 2012 V AD (Delhi) 505 where this Court held that although by retrospective legislation the legislature can confer a procedural competency on an officer, however, an act or omission cannot be made punishable as an offence unless the competency exists on the day when the offence is

Crl.M.C.1752/2012 Page 3 of 10 committed. Paras 6 to 13 of Rakesh Kumar Goyal are extracted hereunder:

“6. It may be noted that prior to the amendment on 13 th July, 2006 Section 108 of the Customs Act enabled any Gazetted officer of Customs to summon any person to give evidence. By Section 25 of the Taxation Laws Amendment Act, 2006 Section 108 of the Customs Act was amended with effect from 13 th July, 2006 and it entitled a Gazetted officer of Customs specifically empowered by the Central Government in this behalf to summon a person, to give evidence or produce documents. By M.F.(D.R.) Notification No. 8/2008-Cus.(N.T.) dated 20th February, 2008 Central Government empowered all Gazetted officers of the Customs for the purpose of Section 108 of the Customs Act. By Section 69 of the Finance Act, 2008 Section 108 (1) of the Act was amended so as to remove the words “duly empowered by the Central Government in this behalf”. This Finance Act came into force on 10th May, 2008 however the amendment was made retrospectively with effect from 13th July, 2006. It would be thus evident that when the summons were issued, Respondent No.2 was not empowered by the Central Government to summon a person, to give evidence or produce documents under Section 108 of the Customs Act. This empowerment was conferred on 20th February, 2008, and thereafter the words “duly empowered by the Central Government in this behalf” were deleted on 10th May, 2008 with retrospective effect from 13th July, 2006.

7. The issue before this Court is whether this retrospective amendment brought by Section 69 of the Finance Act though procedurally can empower an officer to summon retrospectively, however can retrospectively create an offence for non-compliance of the summons issued under Section 108 of the Customs Act. All the summons issued to the Petitioner i.e. on 12th June, 2006, 3rd July, 2006, 3rd November, 2006, 10th January, 2007, 2nd April, 2007, 21st May, 2007 and finally on 10th July, 2007 were issued when Respondent No.2 was not duly authorized to issue summons. Even on the date when the cognizance of the offences under Sections 174/175 IPC was taken by the Learned ACMM on the complaint of Respondent

Crl.M.C.1752/2012 Page 4 of 10 No.2, the Respondent No.2 was not authorized to issue summons to a person to give evidence or to produce documents. The retrospective amendment by Section 69 of the Finance Act, 2008 can ex-post facto ratify the acts of officers in issuing summons under Section 108 of the Customs Act, however cannot make them liable for the offence for the non-compliance thereof because when the non-compliance of the summons was done the same was not an offence. It is well settled that by a retrospective amendment no offence can be created as the same is contrary to Article 20 of the Constitution of India.

8. A plain reading of Section 108 of the Customs Act shows that the offence is attracted only if a summon being issued by the officer duly authorized in this behalf is intentionally disobeyed. Thus, violation or avoidance of summons issued by an officer who is not authorized or competent to issue the same cannot sustain a conviction under Section 174/175 IPC. Dealing with this issue in Shiam Lal Vs. Emperor. 15 (1914) Crl.L.J. 595 it was held that:

“Shiam Lal has been convicted under Section 174 of the Indian Penal Code and sentenced to a fine of Rs.

30. The case has been submitted to this Court by the Additional Sessions Judge with the recommendation that the conviction and sentence be set aside. It appears that a decree was transferred to the Collector by the Civil Court for execution inasmuch as the property to be sold was ancestral property. In the course of the proceedings held in this execution case a Tahsildar, who is an Assistant Collector of the second Class, issued a summons to Shiam Lal to attend his Court in order to enable the Tahsildar to ascertain whether there was any incumbrance on the property ordered to be sold. Shiam Lal did not attend and thereupon he was prosecuted and sentenced as stated above. In order to sustain a conviction under Section 174 it must be shown that the summons issued was issued by a public servant legally competent as such public servant to issue the same and the accused intentionally omitted to attend in pursuance of the summons. In this case under the rules framed by the Local Government in regard to the sale Crl.M.C.1752/2012 Page 5 of 10 of ancestral land, the Collector is empowered to summon any person whom he thinks it necessary to summon for the purpose of ascertaining the matters to be specified in the proclamation of sale and under rule 44 he can delegate his powers only to an Assistant Collector of the first Class. He could not delegate his authority to an Assistant Collector of the second class and, therefore, the Tahsildar, was not legally competent to issue the summons which Shiam Lal did not obey. Furthermore, in this case there is nothing to show that the non-compliance with the summons was intentional. Under these circumstances the conviction of Shiam Lal was illegal. I accordingly set it aside and direct that the fine imposed on him, if paid, be refunded.”

9. In Khota Ram and Ors. Vs. Emperor, 6 (1907) Crl.L.J. 107 it was held:

“There is nothing in the Revenue Act authorizing the issue of such summons. Section 149 of that Act only provides for the attendance of persons within the limits of the estate within which they reside.

Queen-Empress v. Subanna (1) shows that in the Madras Presidency there is an act III of 1869, giving power to issue summons for attendance of persons for purposes connected with the Revenue administration, but there is no such Act in the Punjab.

Crown v. Kashi Ram (2) and Crown v. Kuria (3), show that arbitrators cannot be such be required to attend Court, and Ghulam Khan v. Empress (4) decided that it had not been shown that the attendance of a lambardar for the purpose of appointing a village chaukidar could be legally enforced.

We are of opinion that the Tahsildar was not legally competent to issue summons for the attendance in Court of those munsifs, and we set aside the convictions and sentences. The fines, if paid, will be refunded.”

10. It is well settled that though by a retrospective legislation, the Legislature can confer a procedural competency on an officer, however an act or omission is not punishable as an offence unless it existed on the day when it was committed. In Crl.M.C.1752/2012 Page 6 of 10 Rao Shiv Bahadur Singh and Anr. Vs. State of Vindhya Pradesh AIR 1953 SC 394, the Constitution Bench of the Hon‟ble Supreme Court held:

“7. The next and the only serious question that arises in this case is with reference to the objections raised in reliance on Art. 20 of the Constitution. This question arises from the fact that the charges as against the two appellants, in terms, refer to the offences committed as having been under the various sections of the Indian Penal Code as adapted in the United States of Vindhya Pradesh by Ordinance No. 48 of 1949. This Ordinance was passed on 11-9-1949, while the offences themselves are said to have been committed in the months of February, March and April, 1949, i.e., months prior to the Ordinance. It is urged therefore that the convictions in this case which were after the Constitution came into force are in respect of an ex post facto law creating offences after the commission of the acts charged as such offences and hence unconstitutional. This contention raises two important questions, viz., (1) the proper construction of Article 20 of the Constitution and (2) whether the various acts in respect of which the appellants were convicted constituted offences in this area only from the date when Ordinance No. 48 of 1949 was passed or were already so prior thereto.

8. Article 20(1) of the Constitution is as follows :

“No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”

This Article, in its broad import has been enacted to prohibit convictions and sentences under ex post facto laws. The principle underlying such prohibition has been very elaborately discussed and pointed out in the very learned judgment of Justice Willes in the well known case of „Phillips v. Eyre‟, (1870) 6 Q.B. 1, at pp Crl.M.C.1752/2012 Page 7 of 10 23 and 25 (D), and also by the Supreme Court of U.S.A. in „Calder v. Bull‟ (1798) 3 Dallas 386; 1 Law Ed 648 at p. 649 (F).]. In the English case it is explained that ex post facto laws are laws which voided and punished what had been lawful when done. There can be no doubt as to the paramount importance of the principle that such ex post facto laws, which retrospectively create offences and punish them are bad as being highly inequitable and unjust. In the English system of jurisprudence repugnance of such laws to universal notions of fairness and justice is treated as a ground not for invalidating the law itself but as compelling a beneficent construction thereof where the language of the statute by any means permits it. In the American system, however, such ex post facto laws are themselves rendered invalid by virtue of Art. 1, Ss. 9 and 10 of its Constitution. It is contended by the learned Attorney- General that Art. 20 of the Constitution was meant to bring about nothing more than the invalidity of such ex post facto laws in the post-Constitution period but that the validity of the pre-Constitution laws in this behalf was not intended to be affected in any way.”

11. Thus, by revival of the procedure the officer can be made competent to issue summons however it cannot make the act an offence which was not an offence when it was allegedly committed in view of the want of competency of the officer issuing summons. No offence having been committed at the time when it is alleged, the Petitioner cannot be prosecuted for an offence by giving retrospective competence to the officer issuing summons.

12. The contention of the Learned Additional Solicitor General that this Court will not decide the issue regarding the competency of the officer to issue summons at the relevant time and thus the violation thereof being an offence as the same would be an issue to be decided during trial and in exercise of its power under 482 Cr.P.C. this Court by considering the same will not quash the criminal proceedings pending before the Learned Trial Court deserves to be rejected. In State of Haryana & Ors. Vs. Bhajan Lal & Ors. 1992 Supp(1) SCC 335 Crl.M.C.1752/2012 Page 8 of 10 the Court considered in detail and summarized the legal position by laying down the following guidelines to be followed by the High Court in exercise of its inherent powers to quash criminal complaint.

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra- ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

104. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not Crl.M.C.1752/2012 Page 9 of 10 be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.”

13. It may be noted that the competence of issuing summons by the officer is sine-qua-non for a valid summon. In the absence of a valid summon the violation thereof cannot be an offence and even taking the allegations in the complaint as they are, no offence is made out. In such a situation this Court is duty bound to exercise its jurisdiction under Section 482 Cr.P.C. and not relegate the Petitioner to the trial.”

5. I do agree that making an action punishable retrospectively by an amendment in the Statute would be hit by Article 20 of the Constitution of India. In view of this, the complaint under Sections 174 and 175 IPC and the summoning order dated 16.07.2011 are hereby quashed.

6. Pending Applications stand disposed of.

G.P. MITTAL, J.

MARCH 06, 2013

 

Anticipatory Bail under section 438 of Cr.P.C.

This appeal involves issues of great public importance pertaining to the importance of individual’s personal liberty and the society’s interest.

The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails 2

two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty

——————————————————————————————————————————————————————————————–

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2271 2010. (Arising out of SLP (Crl.) No.7615 of 2009) Siddharam Satlingappa Mhetre …..Appellant Versus

State of Maharashtra and Others …..Respondents JUDGMENT

Dalveer Bhandari, J.

1. Leave granted.

 

2. This appeal involves issues of great public importance pertaining to the importance of individual’s personal liberty and the society’s interest.

 

3. The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails 2

two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty.

 

4. Brief facts which are necessary to dispose of this appeal are recapitulated as under:

The appellant, who belongs to the Indian National Congress party (for short `Congress party’) is the alleged accused in this case. The case of the prosecution, as disclosed in the First Information Report (for short `FIR’), is that Sidramappa Patil was contesting election of the State assembly on behalf of the Bhartiya Janata Party (for short `BJP’). In the FIR, it is incorporated that Baburao Patil, Prakash Patil, Mahadev Patil, Mallikarjun Patil, Apparao Patil, Yeshwant Patil were supporters of the Congress and so also the supporters of the appellant Siddharam Mhetre and opposed to the BJP candidate. 3

5. On 26.9.2009, around 6.00 p.m. in the evening, Sidramappa Patil of BJP came to the village to meet his party workers. At that juncture, Shrimant Ishwarappa Kore, Bhimashankar Ishwarappa Kore, Kallapa Gaddi, Sangappa Gaddi, Gafur Patil, Layappa Gaddi, Mahadev Kore, Suresh Gaddi, Suresh Zhalaki, Ankalgi, Sarpanch of village Shivmurti Vijapure met Sidramappa Patil and thereafter went to worship and pray at Layavva Devi’s temple. After worshipping the Goddess when they came out to the assembly hall of the temple, these aforementioned political opponents namely, Baburao Patil, Prakash Patil, Gurunath Patil, Shrishail Patil, Mahadev Patil, Mallikarjun Patil, Annarao @ Pintu Patil, Hanumant Patil, Tammarao Bassappa Patil, Apparao Patil, Mallaya Swami, Sidhappa Patil, Shankar Mhetre, Usman Sheikh, Jagdev Patil, Omsiddha Pujari, Panchappa Patil, Mahesh Hattargi, Siddhappa Birajdar, Santosh Arwat, Sangayya Swami, Anandappa Birajdar, Sharanappa Birajdar, Shailesh Chougule, Ravi Patil, Amrutling Koshti, Ramesh Patil and Chandrakant Hattargi suddenly came rushing in their direction and loudly shouted, "why have you come to our village? Have you come here to oppose our Mhetre 4

Saheb? They asked them to go away and shouted Mhetre Saheb Ki Jai."

 

6. Baburao Patil and Prakash Patil from the aforementioned group fired from their pistols in order to kill Sidramappa Patil and the other workers of the BJP. Bhima Shankar Kore was hit by the bullet on his head and died on the spot. Sangappa Gaddi, Shivmurti Vjapure, Jagdev Patil, Layappa Patil, Tammaro Patil were also assaulted. It is further mentioned in the FIR that about eight days ago, the appellant Siddharam Mhetre and his brother Shankar Mhetre had gone to the village and talked to the abovementioned party workers and told them that, "if anybody says anything to you, then you tell me. I will send my men within five minutes. You beat anybody. Do whatever."

7. According to the prosecution, the appellant along with his brother instigated their party workers which led to killing of Bhima Shanker Kora. It may be relevant to mention that the alleged incident took place after eight days of the alleged incident of instigation.

 

8. The law relating to bail is contained in sections 436 to 450 of chapter XXXIII of the Code of Criminal Procedure, 1973. 5

Section 436 deals with situation, in what kind of cases bail should be granted. Section 436 deals with the situation when bail may be granted in case of a bailable offence. Section 439 deals with the special powers of the High Court or the Court of Sessions regarding grant of bail. Under sections 437 and 439 bail is granted when the accused or the detenu is in jail or under detention.

 

9. The provision of anticipatory bail was introduced for the first time in the Code of Criminal Procedure in 1973.

10. Section 438 of the Code of Criminal Procedure, 1973 reads as under:

"438. Direction for grant of bail to person apprehending arrest.- (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:-

(i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously

undergone imprisonment on conviction by a

Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and

6

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,

either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application. (1-A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including -

(i) a condition that the person shall make himself available for interrogation by a

police officer as and when required;

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(ii) a condition that the 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; (iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)."

Why was the provision of anticipatory bail introduced? – Historical perspective

11. The Code of Criminal Procedure, 1898 did not contain any specific provision of anticipatory bail. Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether the courts had an inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did not have such power. 8

12. The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the necessity of introducing a provision in the Code of Criminal Procedure enabling the High Court and the Court of Sessions to grant "anticipatory bail". It observed in para 39.9 of its report (Volume I) and the same is set out as under:

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

The Law commission recommended acceptance of the suggestion.

13. The Law Commission in para 31 of its 48th Report (July, 1972) made the following comments on the aforesaid clause: 9

"The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission. We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.

We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interests of justice. It will also be convenient to provide that notice of the interim order as well as of the final orders will be given to the Superintendent of Police forthwith."

14. Police custody is an inevitable concomitant of arrest for non-bailable offences. The concept of anticipatory bail is that a person who apprehends his arrest in a non-bailable case can apply for grant of bail to the Court of Sessions or to the High Court before the arrest.

Scope and ambit of Section 438 Cr.P.C.

15. It is apparent from the Statement of Objects and Reasons for introducing section 438 in the Code of Criminal Procedure, 1973 that it was felt imperative to evolve a device by which an alleged accused is not compelled to face ignominy and disgrace 10

at the instance of influential people who try to implicate their rivals in false cases.

 

16. The Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to the present section 438 Cr.P.C. The only two clear provisions of law by which bail could be granted were sections 437 and 439 of the Code. Section 438 was incorporated in the Code of Criminal Procedure, 1973 for the first time.

 

17. It is clear from the Statement of Objects and Reasons that the purpose of incorporating Section 438 in the Cr.P.C. was to recognize the importance of personal liberty and freedom in a free and democratic country. When we carefully analyze this section, the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court.

 

18. The High Court in the impugned judgment has declined to grant anticipatory bail to the appellant and aggrieved by the said 11

order, the appellant has approached this Court by filing this appeal.

 

19. Mr. Shanti Bhushan, learned senior counsel appearing for the appellant submitted that the High Court has gravely erred in declining the anticipatory bail to the appellant. He submitted that section 438 Cr.P.C. was incorporated because sometime influential people try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. He pointed out that in recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase.

20. Mr. Bhushan submitted that the appellant has been implicated in a false case and apart from that he has already joined the investigation and he is not likely to abscond, or otherwise misuse the liberty while on bail, therefore, there was no justification to decline anticipatory bail to the appellant.

21. Mr. Bhushan also submitted that the FIR in this case refers to an incident which had taken place on the instigation of the appellant about eight days ago. According to him, proper analysis of the averments in the FIR leads to irresistible 12

conclusion that the entire prosecution story seems to be a cock and bull story and no reliance can be placed on such a concocted version.

 

22. Mr. Bhushan contended that the personal liberty is the most important fundamental right guaranteed by the Constitution. He also submitted that it is the fundamental principle of criminal jurisprudence that every individual is presumed to be innocent till he or she is found guilty. He further submitted that on proper analysis of section 438 Cr.P.C. the legislative wisdom becomes quite evident that the legislature wanted to preserve and protect personal liberty and give impetus to the age-old principle that every person is presumed to be innocent till he is found guilty by the court.

23. Mr. Bhushan also submitted that an order of anticipatory bail does not in any way, directly or indirectly, take away from the police their power and right to fully investigate into charges made against the appellant. He further submitted that when the case is under investigation, the usual anxiety of the investigating agency is to ensure that the alleged accused should fully cooperate with them and should be available as and when they require him. In the instant case, when the appellant has already 13

joined the investigation and is fully cooperating with the investigating agency then it is difficult to comprehend why the respondent is insistent for custodial interrogation of the appellant? According to the appellant, in the instant case, the investigating agency should not have a slightest doubt that the appellant would not be available to the investigating agency for further investigation particularly when he has already joined investigation and is fully cooperating with the investigating agency.

 

24. Mr. Bhushan also submitted that according to the General Clauses Act, 1897 the court which grants the bail also has the power to cancel it. The grant of bail is an interim order. The court can always review its decision according to the subsequent facts, circumstances and new material. Mr. Bhushan also submitted that the exercise of grant, refusal and cancellation of bail can be undertaken by the court either at the instance of the accused or a public prosecutor or a complainant on finding fresh material and new circumstances at any point of time. Even the appellant’s reluctance in not fully cooperating with the investigation could be a ground for cancellation of bail. 14

25. Mr. Bhushan submitted that a plain reading of the section 438 Cr.P.C. clearly reveals that the legislature has not placed any fetters on the court. In other words, the legislature has not circumscribed court’s discretion in any manner while granting anticipatory bail, therefore, the court should not limit the order only for a specified period till the charge-sheet is filed and thereafter compel the accused to surrender and ask for regular bail under section 439 Cr.P.C., meaning thereby the legislature has not envisaged that the life of the anticipatory bail would only last till the charge-sheet is filed. Mr. Bhushan submitted that when no embargo has been placed by the legislature then this court in some of its orders was not justified in placing this embargo.

26. Mr. Bhushan submitted that the discretion which has been granted by the legislature cannot and should not be curtailed by interpreting the provisions contrary to the legislative intention. The courts’ discretion in grant or refusal of the anticipatory bail cannot be diluted by interpreting the provisions against the legislative intention. He submitted that the life is never static and every situation has to be assessed and evaluated in the context of emerging concerns as and when it arises. It is 15

difficult to visualize or anticipate all kinds of problems and situations which may arise in future.

Law has been settled by an authoritative pronouncement of the Supreme Court

27. The Constitution Bench of this Court in Gurbaksh Singh Sibbia and Others v. State of Punjab(1980) 2 SCC 565 had an occasion to comprehensively deal with the scope and ambit of the concept of anticipatory bail. Section 438 Cr.P.C. is an extraordinary provision where the accused who apprehends his/her arrest on accusation of having committed a non-bailable offence can be granted bail in anticipation of arrest. The Constitution Bench’s relevant observations are set out as under: "……..A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail".

 

28. Mr. Bhushan referred to a Constitution Bench judgment in Sibbia’s case (supra) to strengthen his argument that no such 16

embargo has been placed by the said judgment of the Constitution Bench. He placed heavy reliance on para 15 of Sibbia’s case (supra), which reads as under: "15. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a `Code for the grant of anticipatory bail’, which really is the business of the legislature, it can at best furnish broad guide-lines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail "if it thinks fit". The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the courts by law."

 

29. Mr. Bhushan submitted that the Constitution Bench in Sibbia’s case (supra) also mentioned that "we see no valid reason for rewriting Section 438 with a view, not to expanding 17

the scope and ambit of the discretion conferred on the High Court and the Court of Session but, for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal".

 

30. Mr. Bhushan submitted that the court’s orders in some cases that anticipatory bail is granted till the charge-sheet is filed and thereafter the accused has to surrender and seek bail application under section 439 Cr.P.C. is neither envisaged by the provisions of the Act nor is in consonance with the law declared by a Constitution Bench in Sibbia’s case (supra) nor it is in conformity with the fundamental principles of criminal jurisprudence that accused is considered to be innocent till he is found guilty nor in consonance with the provisions of the Constitution where individual’s liberty in a democratic society is considered sacrosanct.

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31. Mr. Mahesh Jethmalani, learned senior counsel appearing for respondent no. 2, submitted that looking to the facts and circumstances of this case, the High Court was justified in declining the anticipatory bail to the appellant. He submitted that the anticipatory bail ought to be granted in rarest of rare cases where the nature of offence is not very serious. He placed reliance on the case ofPokar Ram v. State of Rajasthan and Others (1985) 2 SCC 597 and submitted that in murder cases custodial interrogation is of paramount importance particularly when no eye witness account is available.

32. Mr. Jethmalani fairly submitted that the practice of passing orders of anticipatory bail operative for a few days and directing the accused to surrender before the Magistrate and apply for regular bail are contrary to the law laid down in Sibbia’s case (supra). The decisions of this Court inSalauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667, K. L. Verma v. State and Another (1998) 9 SCC 348, Adri Dharan Das v. State of West Bengal (2005) 4 SCC 303 and Sunita Devi v. State of Bihar and Another (2005) 1 SCC 608 are in conflict with the above decision of the Constitution Bench in Sibbia’s case (supra). He submitted that all these orders which 19

are contrary to the clear legislative intention of law laid down in Sibbia’s case (supra) are per incuriam. He also submitted that in case the conflict between the two views is irreconcilable, the court is bound to follow the judgment of the Constitution Bench over the subsequent decisions of Benches of lesser strength.

33. He placed reliance on N. Meera Rani v. Government of Tamil Nadu and Another (1989) 4 SCC 418 wherein it was perceived that there was a clear conflict between the judgment of the Constitution Bench and subsequent decisions of Benches of lesser strength. The Court ruled that the dictum in the judgment of the Constitution Bench has to be preferred over the subsequent decisions of the Bench of lesser strength. The Court observed thus:

"…….All subsequent decisions which are cited have to be read in the light of the Constitution Bench decision since they are decisions by Benches comprising of lesser number of judges. It is obvious that none of these subsequent decisions could have intended taking a view contrary to that of the Constitution bench in Rameshwar Shaw’s case (1964) 4 SCR 921"

34. He placed reliance on another judgment of this Court in Vijayalaxmi Cashew Company and Others v. Dy. 20

Commercial Tax Officer and Another (1996) 1 SCC 468. This Court held as under:

"……..It is not possible to uphold the contention that perception of the Supreme Court, as will appear from the later judgments, has changed in this regard. A judgment of a Five Judge Bench, which has not been doubted by any later judgment of the Supreme Court cannot be treated as overruled by implication."

35. He also placed reliance on Union of India and Others v. K. S. Subramanian (1976) 3 SCC 677 andState of U.P. v. Ram Chandra Trivedi (1976) 4 SCC 52 and submitted that in case of conflict, the High Court has to prefer the decision of a larger Bench to that of a smaller Bench.

36. Mr. Jethmalani submitted that not only the decision in Sibbia’s case (supra) must be followed on account of the larger strength of the Bench that delivered it but the subsequent decisions must be held to be per incuriam and hence not binding since they have not taken into account the ratio of the judgment of the Constitution Bench.

37. He further submitted that as per the doctrine of `per incuriam’, any judgment which has been passed in ignorance of or without considering a statutory provision or a binding precedent is not good law and the same ought to be ignored. A 21

perusal of the judgments in Salauddin Abdulsamad Shaikh v. State of Maharashtra, K. L. Verma v.State and Another, Adri Dharan Das v. State of West Bengal and Sunita Devi v. State of Bihar and Another (supra) indicates that none of these judgments have considered para 42 of Sibbia’s case (supra) in proper perspective. According to Mr. Jethmalani, all subsequent decisions which have been cited above have to be read in the light of the Constitution Bench’s decision in Sibbia’s case (supra) since they are decisions of Benches comprised of lesser number of judges. According to him, none of these subsequent decisions could be intended taking a view contrary to that of the Constitution Bench in Sibbia’s case (supra).

38. Thus, the law laid down in para 42 by the Constitution Bench that the normal rule is not to limit operation of the order of anticipatory bail, was not taken into account by the courts passing the subsequent judgments. The observations made by the courts in the subsequent judgments have been made in ignorance of and without considering the law laid down in para 42 which was binding on them. In these circumstances, the observations made in the subsequent judgments to the effect that anticipatory bail should be for a limited period of time, must 22

be construed to be per incuriam and the decision of the Constitution Bench preferred.

39. He further submitted that the said issue came up for consideration before the Madras High Court reported in Palanikumar and Another v. State 2007 (4) CTC 1 wherein after discussing all the judgments of this court on the issue, the court held that the subsequent judgments were in conflict with the decision of the Constitution Bench in Sibbia’s case (supra) and in accordance with the law of precedents, the judgment of the Constitution Bench is biding on all courts and the ratio of that judgment has to be applicable for all judgments decided by the Benches of same or smaller combinations. In the said judgment of Sibbia’s case (supra) it was directed that the anticipatory bail should not be limited in period of time.

40. We have heard the learned counsel for the parties at great length and perused the written submissions filed by the learned counsel for the parties.

Relevance and importance of personal liberty

41. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of 23

these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of right to life and liberty.

42. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. That is why "liberty" is called the very quintessence of a civilized existence.

 

43. Origin of "liberty"’ can be traced in the ancient Greek civilization. The Greeks distinguished between the liberty of the group and the liberty of the individual. In 431 B.C., an Athenian statesman described that the concept of liberty was the outcome of two notions, firstly, protection of group from attack and secondly, the ambition of the group to realize itself as fully as possible through the self-realization of the individual by way of human reason. Greeks assigned the duty of protecting their liberties to the State. According to Aristotle, as the state was a means to fulfil certain fundamental needs of human nature and was a means for development of individuals’ personality in association of fellow citizens so it was natural and necessary to man. Plato found his "republic" as the best source for the achievement of the self-realization of the people. 24

 

44. Chambers’ Twentieth Century Dictionary defines "liberty" as "Freedom to do as one pleases, the unrestrained employment of natural rights, power of free chance, privileges, exemption, relaxation of restraint, the bounds within which certain privileges are enjoyed, freedom of speech and action beyond ordinary civility".

 

45. It is very difficult to define the "liberty". It has many facets and meanings. The philosophers and moralists have praised freedom and liberty but this term is difficult to define because it does not resist any interpretation. The term "liberty" may be defined as the affirmation by an individual or group of his or its own essence. It needs the presence of three factors, firstly, harmonious balance of personality, secondly, the absence of restraint upon the exercise of that affirmation and thirdly, organization of opportunities for the exercise of a continuous initiative.

 

46. "Liberty" may be defined as a power of acting according to the determinations of the will. According to Harold Laski, liberty was essentially an absence of restraints and John Stuard Mill 25

viewed that "all restraint", qua restraint is an evil". In the words of Jonathon Edwards, the meaning of "liberty" and freedom is: "Power, opportunity or advantage that any one has to do as he pleases, or, in other words, his being free from hindrance or impediment in the way of doing, or conducting in any respect, as he wills."

47. It can be found that "liberty" generally means the prevention of restraints and providing such opportunities, the denial of which would result in frustration and ultimately disorder. Restraints on man’s liberty are laid down by power used through absolute discretion, which when used in this manner brings an end to "liberty" and freedom is lost. At the same time "liberty" without restraints would mean liberty won by one and lost by another. So "liberty" means doing of anything one desires but subject to the desire of others.

48. As John E.E.D. in his monograph Action on "Essays on Freedom and Power" wrote that Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization.

 

49. A distinguished former Attorney General for India, M.C. Setalvad in his treatise "War and Civil Liberties" observed that 26

the French Convention stipulates common happiness as the end of the society, whereas Bentham postulates the greatest happiness of the greatest number as the end of law. Article 19 of the Indian Constitution averts to freedom and it enumerates certain rights regarding individual freedom. These rights are vital and most important freedoms which lie at the very root of liberty.

 

50. He further observed that the concept of civil liberty is essentially rooted in the philosophy of individualism. According to this doctrine, the highest development of the individual and the enrichment of his personality are the true function and end of the state. It is only when the individual has reached the highest state of perfection and evolved what is best in him that society and the state can reach their goal of perfection. In brief, according to this doctrine, the state exists mainly, if not solely, for the purpose of affording the individual freedom and assistance for the attainment of his growth and perfection. The state exists for the benefit of the individual.

51. Mr. Setalvad in the same treatise further observed that it is also true that the individual cannot attain the highest in him 27

unless he is in possession of certain essential liberties which leave him free as it were to breathe and expand. According to Justice Holmes, these liberties are the indispensable conditions of a free society. The justification of the existence of such a state can only be the advancement of the interests of the individuals who compose it and who are its members. Therefore, in a properly constituted democratic state, there cannot be a conflict between the interests of the citizens and those of the state. The harmony, if not the identity, of the interests of the state and the individual, is the fundamental basis of the modern Democratic National State. And, yet the existence of the state and all government and even all law must mean in a measure the curtailment of the liberty of the individual. But such a surrender and curtailment of his liberty is essential in the interests of the citizens of the State. The individuals composing the state must, in their own interests and in order that they may be assured the existence of conditions in which they can, with a reasonable amount of freedom, carry on their other activities, endow those in authority over them to make laws and regulations and adopt measures which impose certain restrictions on the activities of the individuals.

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52. Harold J. Laski in his monumental work in "Liberty in the Modern State" observed that liberty always demands a limitation on political authority. Power as such when uncontrolled is always the natural enemy of freedom.

 

53. Roscoe Pound, an eminent and one of the greatest American Law Professors aptly observed in his book "The Development of Constitutional Guarantee of Liberty" that whatever, `liberty’ may mean today, the liberty is guaranteed by our bills of rights, "is a reservation to the individual of certain fundamental reasonable expectations involved in life in civilized society and a freedom from arbitrary and unreasonable exercise of the power and authority of those who are designated or chosen in a politically organized society to adjust that society to individuals."

 

54. Blackstone in "Commentaries on the Laws of England", Vol.I, p.134 aptly observed that "Personal liberty consists in the power of locomotion, of changing situation or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint unless by due process of law". 29

55. According to Dicey, a distinguished English author of the Constitutional Law in his treatise on Constitutional Law observed that, "Personal liberty, as understood in England, means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification." [Dicey on Constitutional Law, 9th Edn., pp.207-08]. According to him, it is the negative right of not being subjected to any form of physical restraint or coercion that constitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory. In ordinary language personal liberty means liberty relating to or concerning the person or body of the individual, and personal liberty in this sense is the antithesis of physical restraint or coercion.

 

56. Eminent English Judge Lord Alfred Denning observed: "By personal freedom I mean freedom of every law abiding citizen to think what he will, to say what he will, and to go where he will on his lawful occasion without hindrance from any person…. It must be matched, of course, with social security by which I mean the peace and good order of the community in which we live."

30

57. Eminent former Judge of this Court, Justice H.R. Khanna in a speech as published in 2 IJIL, Vol.18 (1978), p.133 observed that "liberty postulates the creation of a climate wherein there is no suppression of the human spirits, wherein, there is no denial of the opportunity for the full growth of human personality, wherein head is held high and there is no servility of the human mind or enslavement of the human body". Right to life and personal liberty under the Constitution

58. We deem it appropriate to deal with the concept of personal liberty under the Indian and other Constitutions.

59. The Fundamental Rights represent the basic values enriched by the people of this country. The aim behind having elementary right of the individual such as the Right to Life and Liberty is not fulfilled as desired by the framers of the Constitution. It is to preserve and protect certain basic human rights against interference by the state. The inclusion of a Chapter in Constitution is in accordance with the trends of modern democratic thought. The object is to ensure the inviolability of certain essential rights against political vicissitudes.

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60. The framers of the Indian Constitution followed the American model in adopting and incorporating the Fundamental Rights for the people of India. American Constitution provides that no person shall be deprived of his life, liberty, or property without due process of law. The due process clause not only protects the property but also life and liberty, similarly Article 21 of the Indian Constitution asserts the importance of Article 21. The said Article reads as under:-

"no person shall be deprived for his life or personal liberty except according to procedure established by law"

the right secured by Article 21 is available to every citizen or non-citizen, according to this article, two rights are secured.

1. Right to life

2 Right to personal liberty.

61. Life and personal liberty are the most prized possessions of an individual. The inner urge for freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not merely a norm or a policy of the State but an essential requirement of any civilized society.

62. This court defined the term "personal liberty" immediately after the Constitution came in force in India in the case of A. K. 32

Gopalan v. The State of Madras, AIR 1950 SC 27. The expression `personal liberty’ has wider as well narrow meaning. In the wider sense it includes not only immunity from arrest and detention but also freedom of speech, association etc. In the narrow sense, it means immunity from arrest and detention. The juristic conception of `personal liberty’, when used the latter sense, is that it consists freedom of movement and locomotion.

63. Mukherjea, J. in the said judgment observed that `Personal Liberty’ means liberty relating to or concerning the person or body of the individual and it is, in this sense, antithesis of physical restraint or coercion. `Personal Liberty’ means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification. This negative right constitutes the essence of personal liberty. Patanjali Shastri, J. however, said that whatever may be the generally accepted connotation of the expression `personal liberty’, it was used in Article 21 in a sense which excludes the freedom dealt with in Article 19. Thus, the Court gave a narrow interpretation to `personal liberty’. This court excluded certain varieties of rights, as separately mentioned in 33

Article 19, from the purview of `personal liberty’ guaranteed by Art. 21.

 

64. In Kharak Singh v. State of U.P. and Others AIR 1963 SC 1295, Subba Rao, J. defined `personal liberty, as a right of an individual to be free from restrictions or encroachment on his person whether these are directly imposed or indirectly brought about by calculated measure. The court held that `personal liberty’ in Article 21 includes all varieties of freedoms except those included in Article 19.

 

65. In Maneka Gandhi v. Union of India and Another (1978) 1 SCC 248, this court expanded the scope of the expression `personal liberty’ as used in Article 21 of the Constitution of India. The court rejected the argument that the expression `personal liberty’ must be so interpreted as to avoid overlapping between Article 21 and Article 19(1). It was observed: "The expression `personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19." So, the phrase `personal liberty’ is 34

very wide and includes all possible rights which go to constitute personal liberty, including those which are mentioned in Article

19.

66. Right to life is one of the basic human right and not even the State has the authority to violate that right. [State of A.P. v. Challa Ramakrishna Reddy and Others (2000) 5 SCC 712].

67. Article 21 is a declaration of deep faith and belief in human rights. In this pattern of guarantee woven in Chapter III of this Constitution, personal liberty of man is at root of Article 21 and each expression used in this Article enhances human dignity and values. It lays foundation for a society where rule of law has primary and not arbitrary or capricious exercise of power. [Kartar Singh v. State of Punjab and Others (1994) 3 SCC 569].

 

68. While examining the ambit, scope and content of the expression "personal liberty" in the said case, it was held that the term is used in this Article as a compendious term to include within itself all varieties of rights which goes to make up the "personal liberties" or man other than those dealt within several clauses of Article 19(1). While Article 19(1) deals with particular 35

species or attributes of that freedom, "personal liberty" in Article 21 takes on and comprises the residue.

 

69. The early approach to Article 21 which guarantees right to life and personal liberty was circumscribed by literal interpretation in A.K. Gopalan (supra). But in course of time, the scope of this application of the Article against arbitrary encroachment by the executives has been expanded by liberal interpretation of the components of the Article in tune with the relevant international understanding. Thus protection against arbitrary privation of "life" no longer means mere protection of death, or physical injury, but also an invasion of the right to "live" with human dignity and would include all these aspects of life which would go to make a man’s life meaningful and worth living, such as his tradition, culture and heritage. [Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Others (1981) 1 SCC 608]

 

70. Article 21 has received very liberal interpretation by this court. It was held: "The right to live with human dignity and same does not connote continued drudging. It takes within its fold some process of civilization which makes life worth living 36

and expanded concept of life would mean the tradition, culture, and heritage of the person concerned." [P. Rathinam/Nagbhusan Patnaik v. Union of India and Another (1994) 3 SCC 394.]

 

71. The object of Article 21 is to prevent encroachment upon personal liberty in any manner. Article 21 is repository of all human rights essentially for a person or a citizen. A fruitful and meaningful life presupposes full of dignity, honour, health and welfare. In the modern "Welfare Philosophy", it is for the State to ensure these essentials of life to all its citizens, and if possible to non-citizens. While invoking the provisions of Article 21, and by referring to the oft-quoted statement of Joseph Addision, "Better to die ten thousand deaths than wound my honour", the Apex court in Khedat Mazdoor Chetana Sangath v. State of M.P. and Others(1994) 6 SCC 260 posed to itself a question "If dignity or honour vanishes what remains of life"? This is the significance of the Right to Life and Personal Liberty guaranteed under the Constitution of India in its third part.

72. This court in Central Inland Water Transport Corporation Ltd. and Another v. Brojo Nath Ganguly and  37

Another (1986) 3 SCC 156 observed that the law must respond and be responsive to the felt and discernible compulsions of circumstances that would be equitable, fair and justice, and unless there is anything to the contrary in the statute, Court must take cognizance of that fact and act accordingly.

73. This court remarked that an undertrial prisoner should not be put in fetters while he is being taken from prison to Court or back to prison from Court. Steps other than putting him in fetters will have to be taken to prevent his escape.

74. In Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526, this court has made following observations: "……. The Punjab Police Manual, in so far as it puts the ordinary Indian beneath the better class breed (para 26.21A and 26.22 of Chapter XXVI) is untenable and arbitrary. Indian humans shall not be dichotomised and the common run discriminated against regarding handcuffs. The provisions in para 26.22 that every under-trial who is accused of a non-bailable offence punishable with more than 3 years prison term shall be routinely handcuffed is violative of Articles 14, 19 and 21. The nature of the accusation is not the criterion. The clear and present danger of escape breaking out of the police control is the determinant. And for this there must be clear material, not glib assumption, record of reasons and judicial oversight and summary hearing and direction by the court where the victim is produced. … Handcuffs are not summary punishment vicariously imposed at police level, at 38

once obnoxious and irreversible. Armed escorts, worth the salt, can overpower any unarmed under- trial and extra guards can make up exceptional needs. In very special situations, the application of irons is not ruled out. The same reasoning applies to (e) and (f). Why torture the prisoner because others will demonstrate or attempt his rescue? The plain law of under-trial custody is thus contrary to the unedifying escort practice. (Para 31)

Even in cases where, in extreme circumstances, handcuffs have to be put on the prisoner, the escorting authority must record contemporaneously the reason for doing so. Otherwise, under Article 21 the procedure will be unfair and bad in law. The minions of the police establishment must make good their security recipes by getting judicial approval. And, once the court directs that handcuffs shall be off, no escorting authority can overrule judicial direction. This is implicit in Article 21 which insists upon fairness, reasonableness and justice in the very procedure which authorities stringent deprivation of life and liberty. (Para 30) It is implicit in Articles 14 and 19 that when there is no compulsive need to fetter a person’s limbs, it is sadistic, capricious, despotic and demoralizing to humble a man by manacling him. Such arbitrary conduct surely slaps Article 14 on the face. The minimal freedom of movement which even a

detainee is entitled to under Article 19 cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate and the

circumstances so hostile to safekeeping. (Para 23) Whether handcuffs or other restraint should be imposed on a prisoner is a matter for the decision of the authority responsible for his custody. But there is room for imposing supervisory regime over the 39

exercise of that power. One sector of supervisory jurisdiction could appropriately lie with the court trying the accused, and it would be desirable for the custodial authority to inform that court of the circumstances in which, and the justification for, imposing a restraint on the body of the accused. It should be for the court concerned to work out the modalities of the procedure requisite for the purpose of enforcing such control."

 

75. After dealing with the concept of life and liberty under the Indian Constitution, we would like to have the brief survey of other countries to ascertain how life and liberty has been protected in other countries.

UNITED KINGDOM

76. Life and personal liberty has been given prime importance in the United Kingdom. It was in 1215 that the people of England revolted against King John and enforced their rights, first time the King had acknowledged that there were certain rights of the subject could be called Magna Carta 1215. In 1628 the petition of rights was presented to King Charles-I which was the 1st step in the transfer of Sovereignty from the King to Parliament. It was passed as the Bill of Rights 1689.

 

77. In the Magna Carta, it is stated "no free man shall be taken, or imprisoned or disseised or outlawed or banished or any ways 40

destroyed, nor will the King pass upon him or commit him to prison, unless by the judgment of his peers or the law of the land".

 

78. Right to life is the most fundamental of all human rights and any decision affecting human right or which may put an individual’s life at risk must call for the most anxious scrutiny. See: Bugdaycay v. Secretary of State for the Home Department (1987) 1 All ER 940. The sanctity of human life is probably the most fundamental of the human social values. It is recognized in all civilized societies and their legal system and by the internationally recognized statements of human rights. See: R on the application of Pretty v. Director of Public Prosecutions (2002) 1 All ER 1.

U.S.A.

79. The importance of personal liberty is reflected in the Fifth Amendment to the Constitution of U.S.A. (1791) which declares as under :-

"No person shall be…..deprived of his life, liberty or property, without due process of law." (The `due process’ clause was adopted in s.1(a) of the Canadian Bill of Rights Act, 1960. In the Canada Act, 1982, this expression has been substituted by `the principles of fundamental justice’ [s.7]. 41

80. The Fourteenth Amendment imposes similar limitation on the State authorities. These two provisions are conveniently referred to as the `due process clauses’. Under the above clauses the American Judiciary claims to declare a law as bad, if it is not in accordance with `due process’, even though the legislation may be within the competence of the Legislature concerned. Due process is conveniently understood means procedural regularity and fairness. (Constitutional Interpretation by Craig R. Ducat, 8 th Edn. 2002 p.475.).

WEST GERMANY

81. Article 2(2) of the West German Constitution (1948) declares:

"Everyone shall have the right to life and physical inviolability. The freedom of the individual shall be inviolable. These rights may be interfered with only on the basis of the legal order."

Though the freedom of life and liberty guaranteed by the above Article may be restricted, such restriction will be valid only if it is in conformity with the `legal order’ (or `pursuant to a law, according to official translation). Being a basic right, the freedom guaranteed by Article 2(2) is binding on the legislative, administrative and judicial organs of the State [Article 1(3)]. This 42

gives the individual the rights to challenge the validity of a law or an executive act violative the freedom of the person by a constitutional complaint to the Federal Constitutional Court, under Article 93. Procedural guarantee is given by Articles 103(1) and 104. Article 104(1)-2(2) provides: "(1) The freedom of the individual may be restricted only on the basis of a formal law and only with due regard to the forms prescribed therein………. (2) Only the Judge shall decide on the admissibility and continued deprivation of liberty."

82. These provisions correspond to Article 21 of our Constitution and the court is empowered to set a man to liberty if it appears that he has been imprisoned without the authority of a formal law or in contravention of the procedure prescribed there.

JAPAN

83. Article XXXI of the Japanese Constitution of 1946 says : "No person shall be deprived of life or liberty nor shall any other criminal penalty be imposed, except according to procedure established by law." This article is similar to Article 21 of our Constitution save that it includes other criminal penalties, such as fine or forfeiture within its ambit.

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CANADA

84. S. 1(1) of the Canadian Bill of Rights Act, 1960, adopted the `Due Process’ Clause from the American Constitution. But the difference in the Canadian set-up was due to the fact that this Act was not a constitutional instrument to impose a direct limitation on the Legislature but only a statute for interpretation of Canadian status, which, again, could be excluded from the purview of the Act of 1960, in particular cases, by an express declaration made by the Canadian Parliament itself (s.2). The result was obvious : The Canadian Supreme Court in R. v. Curr (1972) S.C.R. 889 held that the Canadian Court would not import `substantive reasonableness’ into s.1(a), because of the unsalutary experience of substantive due process in the U.S.A.; and that as to `procedural reasonableness’, s.1(a) of the Bill of Rights Act only referred to `the legal processes recognized by Parliament and the Courts in Canada’. The result was that in Canada, the `due process clause’ lost its utility as an instrument of judicial review of legislation and it came to mean practically the same thing as whatever the Legislature prescribes, – much the same as `procedure established by law’ in Article 21 of the Constitution of India, as interpreted in A.K. Gopalan (supra). 44

BANGADESH

85. Article 32 of the Constitution of Bangladesh, 1972 [3 SCW 385] reads as under:

"No person shall be deprived of life or personal liberty save in accordance with law."

This provision is similar to Article 21 of the Indian Constitution. Consequently, unless controlled by some other provision, it should be interpreted as in India.

PAKISTAN

86. Article 9 Right to life and Liberty. – "Security of Person : No person shall be deprived of life and liberty save in accordance with law."

NEPAL

87. In the 1962 – Constitution of Nepal, there is Article 11(1) which deals with right to life and liberty which is identical with Article 21 of the Indian Constitution.

INTERNATIONAL CHARTERS

88. Universal Declaration, 1948. – Article 3 of the Universal Declaration says:

"Everyone has the right to life, liberty and security of person."

45

Article 9 provides:

"No one shall be subjected to arbitrary arrest, detention or exile."

Cl.10 says:

"Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him." [As to its legal effect, see M. v. Organisation Belge, (1972) 45 Inter, LR 446 (447, 451, et. Sq.)]

89. Covenant on Civil and Political Rights – Article 9(1) of the U.N. 1966, 1966 says:

"Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

90. European Convention on Human Rights, 1950. – This Convention contains a most elaborate and detailed codification of the rights and safeguards for the protection of life and personal liberty against arbitrary invasion.

 

91. In every civilized democratic country, liberty is considered to be the most precious human right of every person. The Law Commission of India in its 177th Report under the heading `Introduction to the doctrine of "arrest" has described as follows: 46

"Liberty is the most precious of all the human rights". It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man. The universal declaration of human rights adopted by the general assembly on United Nations on December 10, 1948 contains several articles designed to protect and promote the liberty of individual. So does the international covenant on civil and political rights, 1996. Above all, Article 21 of the Constitution of India proclaims that no one shall be deprived of his right to personal liberty except in accordance with the procedure prescribed by law. Even Article 20(1) & (2) and Article 22 are born out of a concern for human liberty. As it is often said, "one realizes the value of liberty only when he is deprived of it." Liberty, along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by the Constitution. Of equal importance is the maintenance of peace, law and order in the society. Unless, there is peace, no real progress is possible. Societal peace lends stability and security to the polity. It provides the necessary conditions for growth, whether it is in the economic sphere or in the scientific and technological spheres."

92. Just as the Liberty is precious to an individual, so is the society’s interest in maintenance of peace, law and order. Both are equally important.

93. It is a matter of common knowledge that a large number of undertrials are languishing in jail for a long time even for allegedly committing very minor offences. This is because section 438 Cr.P.C. has not been allowed its full play. The 47

Constitution Bench in Sibbia’s case (supra) clearly mentioned that section 438 Cr.P.C. is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other provisions for grant of bail were sections 437 and 439 Cr.P.C. It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some courts of smaller strength have erroneously observed that section 438 Cr.P.C. should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia’s case (supra). According to the report of the National Police Commission, the power of arrest is grossly abused and clearly violates the personal liberty of the people, as enshrined under Article 21 of the Constitution, then the courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The courts considering the bail application should try to maintain fine balance between the societal interest vis-`-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused that the accused is presumed to be innocent till he is found guilty by the competent court.

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94. The complaint filed against the accused needs to be thoroughly examined including the aspect whether the complainant has filed false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.

 

95. The gravity of charge and exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.

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96. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided.

 

97. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage. Whether the powers under section 438 Cr.P.C. are subject to limitation of section 437 Cr.P.C.?

98. The question which arises for consideration is whether the powers under section 438 Cr.P.C. are unguided or uncanalised or are subject to all the limitations of section 437 Cr.P.C.? The Constitution Bench in Sibbia’s case (supra) has clearly observed that there is no justification for reading into section 438 Cr.P.C. and the limitations mentioned in section 437 Cr.P.C. The Court 50

further observed that the plentitude of the section must be given its full play. The Constitution Bench has also observed that the High Court is not right in observing that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by section 438 Cr.P.C. to a dead letter. The Court observed that "We do not see why the provisions of Section 438 Cr.P.C. should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable."

 

99. As aptly observed in Sibbia’s case (supra) that a wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail. 51

100. The Constitution Bench in the same judgment also observed that a person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall enlarged on bail.

 

101. The proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public prosecutor. After hearing the public prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The public prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case.

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102. The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply before a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia’s case (supra).

 

103. It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the public prosecutor or the complainant on finding new material or circumstances at any point of time.

104. The intention of the legislature is quite clear that the power of grant or refusal of bail is entirely discretionary. The Constitution Bench in Sibbia’s case (supra) has clearly stated that grant and refusal is discretionary and it should depend on the facts and circumstances of each case. The Constitution Bench in the said case has aptly observed that we must respect the wisdom of the Legislature entrusting this power to the superior courts namely, the High Court and the Court of Session. The Constitution Bench observed as under: 53

"We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognized over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the grounds that, after all "the legislature in, its wisdom" has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom. If they err, they are liable to be corrected."

GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY TO THE LEGISLATIVE INTENTION AND LAW DECLARED BY THE CONSTITUTION BENCH:

105. The court which grants the bail has the right to cancel the bail according to the provisions of the General Clauses Act but ordinarily after hearing the public prosecutor when the bail order is confirmed then the benefit of the grant of the bail should continue till the end of the trial of that case.

106. The judgment in Salauddin Abdulsamad Shaikh (supra) is contrary to legislative intent and the spirit of the very provisions of the anticipatory bail itself and has resulted in an 54

artificial and unreasonable restriction on the scope of enactment contrary to the legislative intention.

 

107. The restriction on the provision of anticipatory bail under section 438 Cr.P.C. limits the personal liberty of the accused granted under Article 21 of the constitution. The added observation is nowhere found in the enactment and bringing in restrictions which are not found in the enactment is again an unreasonable restriction. It would not stand the test of fairness and reasonableness which is implicit in Article 21 of the Constitution after the decision in Maneka Gandhi’s case (supra) in which the court observed that in order to meet the challenge of Article 21 of the Constitution the procedure established by law for depriving a person of his liberty must be fair, just and reasonable.

 

108. Section 438 Cr.P.C. does not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted. The order granting anticipatory bail is a direction specifically to release the accused on bail in the event of his arrest. Once such a direction of anticipatory bail is executed by the accused and he is released on bail, the 55

concerned court would be fully justified in imposing conditions including direction of joining investigation.

109. The court does not use the expression `anticipatory bail’ but it provides for issuance of direction for the release on bail by the High Court or the Court of Sessions in the event of arrest. According to the aforesaid judgment of Salauddin’s case, the accused has to surrender before the trial court and only thereafter he/she can make prayer for grant of bail by the trial court. The trial court would release the accused only after he has surrendered.

 

110. In pursuance to the order of the Court of Sessions or the High Court, once the accused is released on bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.

111. The court must bear in mind that at times the applicant would approach the court for grant of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non-bailable offence. In fact, the investigating or concerned agency may not otherwise arrest that applicant who has applied for anticipatory bail but just because he makes an 56

application before the court and gets the relief from the court for a limited period and thereafter he has to surrender before the trial court and only thereafter his bail application can be considered and life of anticipatory bail comes to an end. This may lead to disastrous and unfortunate consequences. The applicant who may not have otherwise lost his liberty loses it because he chose to file application of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non-bailable offence. No arrest should be made because it is lawful for the police officer to do so. The existence of power to arrest is one thing and the justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. This finding of the said judgment (supra) is contrary to the legislative intention and law which has been declared by a Constitution Bench of this court in Sibbia’s case (supra).

 

112. The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail. This is contrary to the basic intention and spirit of section 438 Cr.P.C. It is also contrary to Article 21 of the 57

Constitution. The test of fairness and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty.

 

113. It is a settled legal position crystallized by the Constitution Bench of this court in Sibbia’s case (supra) that the courts should not impose restrictions on the ambit and scope of section 438 Cr.P.C. which are not envisaged by the Legislature. The court cannot rewrite the provision of the statute in the garb of interpreting it.

 

114. It is unreasonable to lay down strict, inflexible and rigid rules for exercise of such discretion by limiting the period of which an order under this section could be granted. We deem it appropriate to reproduce some observations of the judgment of the Constitution Bench of this court in the Sibbia’s case (supra).

"The validity of that section must accordingly be examined by the test of fairness and reasonableness which is implicit in Article 21. If the legislature itself were to impose an unreasonable restriction on the grant of anticipatory bail, such a restriction could have been struck down as being violative of Article 21. Therefore, while determining the scope of Section 438, the court should not impose any unfair or

58

unreasonable limitation on the individual’s right to obtain an order of anticipatory bail. Imposition of an unfair or unreasonable limitation, according to the learned Counsel, would be violative of Article 21, irrespective of whether it is imposed by legislation or by judicial decision.

xxx xxx xxx

Clause (1) of Section 438 is couched in terms, broad and unqualified. By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep grained in our criminal jurisprudence as the presumption of innocence."

xxx xxx xxx

"I desire in the first instance to point out that the discretion given by the section is very wide. . . Now it seems to me that when the Act is so expressed to provide a wide discretion, … it is not advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of view from which judges would regard an application for relief. But I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded. If it were otherwise, the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place 59

conditions upon a free discretion entrusted by statute to the court where the conditions are not based upon statutory enactment at all. It is not safe, I think, to say that the court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make the court wish it had kept a free hand."

xxx xxx xxx

"The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the courts by law."

 

115. The Apex Court in Salauddin’s case (supra) held that anticipatory bail should be granted only for a limited period and on the expiry of that duration it should be left to the regular court to deal with the matter is not the correct view. The reasons quoted in the said judgment is that anticipatory bail is granted at a stage when an investigation is incomplete and the court is not informed about the nature of evidence against the alleged offender.

 

116. The said reason would not be right as the restriction is not seen in the enactment and bail orders by the High Court and Sessions Court are granted under sections 437 and 439 also at such stages and they are granted till the trial. 60

117. The view expressed by this Court in all the above referred judgments have to be reviewed and once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused.

SCOPE AND AMBIT OF ANTICIPATORY BAIL:

118. A good deal of misunderstanding with regard to the ambit and scope of section 438 Cr.P.C. could have been avoided in case the Constitution Bench decision of this court in Sibbia’s case (supra) was correctly understood, appreciated and applied.

119. This Court in the Sibbia’s case (supra) laid down the following principles with regard to anticipatory bail: a) Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India.

b) Filing of FIR is not a condition precedent to exercise of power under section 438.

c) Order under section 438 would not affect the right of police to conduct investigation.

d) Conditions mentioned in section 437 cannot be read into section 438.

61

e) Although the power to release on anticipatory bail can be described as of an "extraordinary" character this would "not justify the conclusion that the power must be exercised in exceptional cases only." Powers are discretionary to be exercised in light of the circumstances of each case.

f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re- examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.

 

120. The Law Commission in July 2002 has severely criticized the police of our country for the arbitrary use of power of arrest which, the Commission said, is the result of the vast discretionary powers conferred upon them by this Code. The Commission expressed concern that there is no internal mechanism within the police department to prevent misuse of law in this manner and the stark reality that complaint lodged in this regard does not bring any result. The Commission intends to suggest amendments in the Criminal Procedure Code and has invited suggestions from various quarters. Reference is made in this Article to the 41st Report of the Law Commission wherein the Commission saw `no justification’ to require a person to submit to custody, remain in prison for some days and then apply for 62

bail even when there are reasonable grounds for holding that the person accused of an offence is not likely to abscond or otherwise misuse his liberty. Discretionary power to order anticipatory bail is required to be exercised keeping in mind these sentiments and spirit of the judgments of this court in Sibbia’s case (supra) and Joginder Kumar v. State of U.P. and Others (1994) 4 SCC 260.

Relevant consideration for exercise of the power

121. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia’s case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is 63

the legislative mandate which we are bound to respect and honour.

122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii. The antecedents of the applicant including the fact as to whether the accused has previously

undergone imprisonment on conviction by a Court in respect of any cognizable offence;

iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused’s likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be 64

caused to the free, fair and full investigation and there should be prevention of harassment,

humiliation and unjustified detention of the accused;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

x. Frivolity in prosecution should always be considered and it is only the element of

genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

 

123. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case.

124. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.

125. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for 65

anticipatory bail. If a wise discretion is exercised by the concerned judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available.

126. Irrational and Indiscriminate arrest are gross violation of human rights. In Joginder Kumar’s case (supra), a three Judge Bench of this Court has referred to the 3rd report of the National Police Commission, in which it is mentioned that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails. 66

127. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case. 128 In case, the State consider the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the accused in a routine manner. These suggestions are only illustrative and not exhaustive.

1) Direct the accused to join investigation and only when the accused does not cooperate with the investigating agency, then only the accused be arrested.

2) Seize either the passport or such other related documents, such as, the title deeds of properties or the Fixed Deposit Receipts/Share Certificates of the accused.

3) Direct the accused to execute bonds; 4) The accused may be directed to furnish sureties of number of persons which according to the prosecution are necessary in view of the facts of the particular case.

5) The accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course of justice can be avoided.

6) Bank accounts be frozen for small duration during investigation.

67

129) In case the arrest is imperative, according to the facts of the case, in that event, the arresting officer must clearly record the reasons for the arrest of the accused before the arrest in the case diary, but in exceptional cases where it becomes imperative to arrest the accused immediately, the reasons be recorded in the case diary immediately after the arrest is made without loss of any time so that the court has an opportunity to properly consider the case for grant or refusal of bail in the light of reasons recorded by the arresting officer.

130. Exercise of jurisdiction under section 438 of Cr.P.C. is extremely important judicial function of a judge and must be entrusted to judicial officers with some experience and good track record. Both individual and society have vital interest in orders passed by the courts in anticipatory bail applications.

131. It is imperative for the High Courts through its judicial academies to periodically organize workshops, symposiums, seminars and lectures by the experts to sensitize judicial officers, police officers and investigating officers so that they can properly comprehend the importance of personal liberty vis-`-vis social 68

interests. They must learn to maintain fine balance between the personal liberty and the social interests.

132. The performance of the judicial officers must be periodically evaluated on the basis of the cases decided by them. In case, they have not been able to maintain balance between personal liberty and societal interests, the lacunae must be pointed out to them and they may be asked to take corrective measures in future. Ultimately, the entire discretion of grant or refusal of bail has to be left to the judicial officers and all concerned must ensure that grant or refusal of bail is considered basically on the facts and circumstances of each case.

 

133. In our considered view, the Constitution Bench in Sibbia’s case (supra) has comprehensively dealt with almost all aspects of the concept of anticipatory bail under section 438 Cr.P.C. A number of judgments have been referred to by the learned counsel for the parties consisting of Benches of smaller strength where the courts have observed that the anticipatory bail should be of limited duration only and ordinarily on expiry of that duration or standard duration, the court granting the anticipatory bail should leave it to the regular court to deal with 69

the matter. This view is clearly contrary to the view taken by the Constitution Bench in Sibbia’s case (supra). In the preceding paragraphs, it is clearly spelt out that no limitation has been envisaged by the Legislature under section 438 Cr.P.C. The Constitution Bench has aptly observed that "we see no valid reason for rewriting section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court or the Court of Session but, for the purpose of limiting it".

134. In view of the clear declaration of law laid down by the Constitution Bench in Sibbia’s case (supra), it would not be proper to limit the life of anticipatory bail. When the court observed that the anticipatory bail is for limited duration and thereafter the accused should apply to the regular court for bail, that means the life of section 438 Cr.P.C. would come to an end after that limited duration. This limitation has not been envisaged by the legislature. The Constitution Bench in Sibbia’s case (supra) clearly observed that it is not necessary to re-write section 438 Cr.P.C. Therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under section 438 Cr.P.C. granting bail cannot be curtailed.

70

 

135. The ratio of the judgment of the Constitution Bench in Sibbia’s case (supra) perhaps was not brought to the notice of their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra, K. L. Verma v. State and Another, Adri Dharan Das v. State of West Bengal and Sunita Devi v. State of Bihar and Another (supra).

136. In Naresh Kumar Yadav v. Ravindra Kumar (2008) 1 SCC 632, a two-Judge Bench of this Court observed "the power exercisable under section 438 Cr.P.C. is somewhat extraordinary in character and it should be exercised only in exceptional cases. This approach is contrary to the legislative intention and the Constitution Bench’s decision in Sibbia’s case (supra).

 

137. We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under section 438 Cr.P.C. should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject to the wide power 71

and discretion conferred by the legislature to a rigorous code of self-imposed limitations.

 

138. The judgments and orders mentioned in paras 135 and 136 are clearly contrary to the law declared by the Constitution Bench of this Court in Sibbia’s case (supra). These judgments and orders are also contrary to the legislative intention. The Court would not be justified in re-writing section 438 Cr.P.C.

 

139. Now we deem it imperative to examine the issue of per incuriam raised by the learned counsel for the parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House of Lords observed that `Incuria’ literally means `carelessness’. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The `quotable in law’ is avoided and ignored if it is rendered, `in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.

72

"……… In Halsbury’s Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under:

"A decision is given per incuriam when the court has acted in ignorance of a

previous decision of its own or of a court of coordinate jurisdiction which covered

the case before it, in which case it must

decide which case to follow (Young v.

Bristol Aeroplane Co. Ltd., 1944 KB 718

at 729 : (1944) 2 All ER 293 at 300.

In Huddersfield Police Authority v.

Watson, 1947 KB 842 : (1947) 2 All ER

193.); or when it has acted in ignorance

of a House of Lords decision, in which

case it must follow that decision; or when the decision is given in ignorance of the

terms of a statute or rule having

statutory force."

140. Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 observed that where a case or statute had not been brought to the court’s attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.

 

141. This court in Government of A.P. and Another v. B. Satyanarayana Rao (dead) by LRs. and Others (2000) 4 SCC 262 observed as under:

73

"The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue."

 

142. In a Constitution Bench judgment of this Court in Union of India v. Raghubir Singh (1989) 2 SCC 754, Chief Justice Pathak observed as under:

"The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court."

143. In Thota Sesharathamma and another v. Thota Manikyamma (Dead) by LRs. and others (1991) 4 SCC 312 a two Judge Bench of this Court held that the three Judge Bench decision in the case of Mst. Karmi v. Amru (1972) 4 SCC 86 was per incuriam and observed as under: "…It is a short judgment without adverting to any provisions of Section 14 (1) or 14(2) of the Act. The judgment neither makes any mention of any argument raised in this regard nor there is any mention of the earlier decision in Badri Pershad v. Smt. Kanso Devi. The decision in Mst. Karmi cannot be considered as an authority on the ambit and scope of Section 14(1) and (2) of the Act." 74

 

144. In R. Thiruvirkolam v. Presiding Officer and Another (1997) 1 SCC 9 a two Judge Bench of this Court observed that the question is whether it was bound to accept the decision rendered inGujarat Steel Tubes Ltd. v. Mazdoor Sabha (1980) 2 SCC 593, which was not in conformity with the decision of a Constitution Bench in P.H. Kalyani v. Air France (1964) 2 SCR 104. J.S. Verma, J. speaking for the court observed as under:

"With great respect, we must say that the above-quoted observations in Gujarat Steel at P. 215 are not in line with the decision in Kalyani which was binding or with D.C. Roy to which the learned Judge, Krishna Iyer, J. was a party. It also does not match with the underlying juristic principle discussed in Wade. For the reasons, we are bound to follow the Constitution Bench decision in Kalyani, which is the binding authority on the point."

 

145. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and others (2001) 4 SCC 448 a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. 75

146. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673 has observed that the law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.

 

147. A three-Judge Bench of this court in Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 again reiterated the clear position of law that by virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka and Others v. Umadevi (3) and Others (2006) 4 SCC 1 is binding on all courts including this court till the same is overruled by a larger Bench. The ratio of the Constitution Bench has to be followed by Benches of lesser strength. In para 90, the court observed as under:- "We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the 76

credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed."

 

148. In Subhash Chandra and Another v. Delhi Subordinate Services Selection Board and Others(2009) 15 SCC 458, this court again reiterated the settled legal position that Benches of lesser strength are bound by the judgments of the Constitution Bench and any Bench of smaller strength taking contrary view is per incuriam. The court in para 110 observed as under:-

"Should we consider S. Pushpa v. Sivachanmugavelu (2005) 3 SCC 1 to be an obiter following the said decision is the question which arises herein. We think we should. The decisions referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely, Marri Chandra Shekhar Rao v. Seth G.S. Medical College (1990) 3 SCC 139 and E.V.

Chinnaiah v. State of A.P. (2005) 1 SCC 394. Marri Chandra Shekhar Rao (supra) had been followed by this Court in a large number of decisions including the three-Judge Bench decisions. S. Pushpa (supra) therefore, could not have ignored either Marri Chandra Shekhar Rao 77

(supra) or other decisions following the same only on the basis of an administrative circular issued or otherwise and more so when the constitutional scheme as contained in clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same bracket.Following Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 therefore, we are of the opinion that the dicta in S. Pushpa (supra) is an obiter and does not lay down any binding ratio."

149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three judges of this court. These judgments have clearly ignored a Constitution Bench judgment of this court in Sibbia’s case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under section 438 of Cr.P.C.. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam.

150. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the correctness of the judgments by two or three judges, then the 78

proper course would be to request Hon’ble the Chief Justice to refer the matter to a larger Bench of appropriate strength.

151. In the instant case there is a direct judgment of the Constitution Bench of this court in Sibbia’s case (supra) dealing with exactly the same issue regarding ambit, scope and object of the concept of anticipatory bail enumerated under section 438 Cr.P.C. The controversy is no longer res integra. We are clearly bound to follow the said judgment of the Constitution Bench. The judicial discipline obliges us to follow the said judgment in letter and spirit.

152. In our considered view the impugned judgment and order of the High Court declining anticipatory bail to the appellant cannot be sustained and is consequently set aside.

153. We direct the appellant to join the investigation and fully cooperate with the investigating agency. In the event of arrest the appellant shall be released on bail on his furnishing a personal bond in the sum of Rs.50,000/- with two sureties in the like amount to the satisfaction of the arresting officer.

154. Consequently, this appeal is allowed and disposed of in terms of the aforementioned observations.

79

………………………………………..J. (Dalveer Bhandari)

……………………………………….J. (K.S. Panicker

Radhakrishnan)

New Delhi;

Anticipatory bail after process of sec.82 of Cr.P.C. in sec.498-A-IPC

 

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : INDIAN PENALCODE
BAIL APPLN. 1161/2012
Reserved on: 19th March , 2013
Decided on: 22nd March, 2013
MANJU GARG & ANR ….. Petitioners
Through: Mr. M.N. Krishnamani, Sr. Adv. with Mr. Sameer Dubey, Mr.
Arun K. Beriwal, Mr. Saurabh Kansal & Mr. Amit Kumar,
Advs.
versus
STATE ….. Respondent
Through: Mr. Manoj Ohri, APP for State with ASI Sumedha, PS Nanak
Pura. Mr. Dinesh Mathur, Sr. Adv. with Ms. Meena
Chaudhary, Adv. for complainant with complainant in person.
Coram:
HON’BLE MS. JUSTICE MUKTA GUPTA
1. By the present petition the Petitioners who are the mother-in-law and
father-in-law respectively of the complainant Ms. Surbhi seek anticipatory
bail in case FIR No. 145/2010 under Section 498A/406/34 IPC registered at
PS Rohini North.
2. Learned counsel for the Petitioner contends that the Petitioners have
joined the investigation on 24 occasions. Raid has already been conducted
at the house and whatever items of dowry/ istridhan were there, the same
have been taken away on the identification of the complainant. The
allegations in the FIR against the Petitioners are at best demand of money,
the veracity of which will be adjudicated during trial. Bail is the rule and
jail is an exception. The principle of the accused being innocent till proven
guilty has to be borne in mind, besides balancing the same with the necessity
to arrest. Since the Petitioners have joined the investigation as and when
they were required, no custodial interrogation is required. The silver and
gold items stated in the complaint in the FIR were given to the complainant by her parents and not to the Petitioners. Further the value of these items
have been inflated. False FIRs are being registered against the Petitioners.
The Petitioners are not aware that Section 82 Cr.P.C. proceedings were
initiated against them and hence the same have not been mentioned in the
present petition and the moment it came to their notice, they approached the
learned Additional Sessions Judge, who has been pleased to stay the
proceedings. Further the Petitioners have already deposited a sum of Rs. 10
lakhs in the form of a FDR in the name of the complainant with the
investigating officer, as undertaken by them before this Court on 7th August,
2012 and are willing to fulfill any other condition which this Court may
impose. The Petitioners are further willing to deposit a sum of Rs. 17.5
lakhs though they dispute the cost of the items as calculated by the
complainant. Reliance is placed on Siddharam Satlingappa Mhetre Vs. State
of Maharashtra & Ors. AIR 2011 SC 312.
3. Learned APP for the State on the other hand contends that there are
serious allegations of preparing video film of the complainant in
unwarranted condition in her bedroom with her husband which was
uploaded. Though laptop, handycam and mobile phone were recovered,
however they were without SIM card, memory card and SD memory card.
The moment an application for cancellation of the bail of the son of the
Petitioners was filed, a locked SIM card of the mobile phone was handed
over to the investigating officer. Though the father of the complainant
wanted to spend Rs. 50 lakhs on the marriage, however on the insistence of
the Petitioners Rs. 2 crores had to be spent. Statement of Hanuman Prashad,
the domestic servant of Petitioners for the last many years was recorded who
confirmed ill behavior by the accused persons with the complainant on
various occasions and also confirmed that dowry articles used to come from
complainant’s parents house loaded in tempo and cars on every occasion.
Though the Petitioners deposited a booklet in Police Station on 16th March,
2012 which includes photocopies of the complainant’s passport, viza papers,
medical papers and certain typed SMS (text messages), however till date the
original of these documents have not been given nor the source of the said
SMSs have been furnished. Though raid was conducted, however no
jewellery could be recovered from the bank locker. Besides demand of
dowry, the complainant was treated with cruelty and she was beaten on 17th
March, 2011 when she was brought back to her home by her brother. The
DD entry recorded, which was duly signed by the Petitioner No.2, stated that
she was not taking with her any article. On 20th March, 2011 the Petitioner
No.2 came along with his son. Again there was a fight at the parental home of the complainant and a PCR call was made. When the complainant was
examined on 20th March, 2011 she had bluish red bruises on her right arm.
In view of the serious allegations against the Petitioners, no case for
anticipatory bail is made out.
4. Learned counsel for the complainant states that besides the serious
demand of dowry, the conduct of the Petitioners does not warrant grant of
anticipatory bail. The seized incriminating articles have been found without
any SIM card, memory card and SD memory card. When the complainant
filed an application for cancellation of bail of the son of the Petitioners, a
locked SIM card was given. Even things like passport, medical papers,
source of SMS have been retained by the Petitioners. The Petitioners are in
possession of the receipts which also they are not deliberately producing.
Reliance is placed on MCD Vs. State of Delhi and Anr. (2005) 4 SCC 605
and Chandra Shashi Vs. Anil Kumar Verma (1995) 1 SCC 421. The
Petitioner has deliberately concealed the factum of proceedings under
Section 82 Cr.P.C. before this Court in the present petition. The 82 Cr.P.C.
proceedings were initiated on 10th July, 2010 and on 17th July, 2010 the
order was pasted on their house. Thus, when the petition before this Court
was filed on 4th August, 2012 the Petitioners were very well aware of the
proceedings, however this fact has been completely concealed. Reliance is
placed on Lavesh Vs. State 2012 STPL (Web) 470 SC. The Petitioners
have been taking contrary pleas, as before the Hon’ble Supreme Court they
sought bail and before the learned Sessions Judge with regard to proceedings
under Section 82/83 Cr.P.C. it is stated that the Petitioners have already been
granted bail. The witnesses in the present FIR are being terrorized and
complaints under Section 153(3)/340 Cr.P.C. have already been filed against
the witness Ashwani who sold the laptop to the son of the Petitioners. The
surety has no control over the Petitioners. A letter was written by Shri Vijay
Mittal surety of the Petitioner No.1 on 10th January, 2013 to the
investigating officer stating that he was the surety of Smt. Manju Garg but
he has no knowledge of her whereabouts. Thus no anticipatory bail be
granted to the Petitioners.
5. Heard learned counsel for the parties. This application came up
before this Court for the first time on 7th August, 2012 when the learned
senior counsel for the Petitioners undertook to deposit Rs. 10 lakhs in the
form of FDR in the name of the complainant with the investigating officer
and the matter was referred to mediation. This Court further directed the
matter to be listed on 30th October, 2012 and till the next date of hearing in the case of arrest Petitioners were directed to be released on anticipatory bail
subject to their furnishing personal bonds with one surety with directions to
cooperate in the investigation. The application was disposed of in the above
terms. On 30th October, 2012 the factum of mediation process still going on
was noted and the matter was adjourned to 9th January, 2013. On 9th
January, 2013 this Court observed that the bail application had already been
disposed of vide order dated 7th August, 2012 and the mediation had ended
in a non-settlement and thus no further orders were called for in the present
application. Consequently, the applications filed by the complainant were
also dismissed, however the Petitioners were granted liberty to take remedies
as available in law. Subsequently, an application for clarification was filed
before this Court by the State and it was clarified that the order dated 7th
August, 2012 granted interim protection to the Petitioners only till 30th
October, 2012. Further an application was filed by the Petitioners for
clarification which was withdrawn. The Petitioners preferred a special leave
petition wherein the Hon’ble Supreme Court restored the anticipatory bail
application and the two applications filed by the complainant and directed
that the same be disposed of after hearing the parties within two weeks from
the receipt of the order in accordance with law. The matter was put up
before this Court on 15th March, 2013 on an office note, when the learned
counsel for the Petitioner sought time and thus the matter has now been
heard on 19th March, 2013.
6. A perusal of the FIR shows a continuous demand of dowry by the
Petitioners who are the mother-in-law and father-in-law of the complainant.
No doubt as against the admitted amount of Rs. 10 lakhs taken by way of
cheque, FDR has already been deposited by the Petitioner with the
Investigating Officer, however further Rs. 10 lakhs, 50 lakhs, 35 lakhs were
demanded at the time of wedding, besides whole lot of jewellery, gold and
silver items. Even accepting the contention of the learned counsel for the
Petitioner that since the Petitioner No.2 was involved in event management,
the money was spent on various functions organized at the time of wedding,
a perusal of the photographs show that gold ornaments were given to the
Petitioners besides several gold coins and silver items. A reply by the
Petitioners to the list of dowry articles by the complainant though admits
some of the items to be given, however refuses to return the same on the
pretext that the same were not istridhan. Articles given to the Petitioners at
the time of marriage amount to dowry articles given in consideration of the
marriage and the Petitioners are bound to return the same. 7. The incriminating articles like laptop, handycam, mobile phones etc.
have not been handed over in a complete condition by the son of the
Petitioners and not the Petitioners as the same belong to their son. Even the
originals of passport and the medical documents of the complainant have
been retained. Further proceedings under Section 82 Cr.P.C. were initiated
against the Petitioners on 10th July, 2010 and on 17th July, 2010 the order
was pasted on their house. Immediately thereafter, interim protection was
granted. No final order of declaring the Petitioners a proclaimed offender
was passed by the learned Trial Court when this petition was filed and thus
the decision in Lavesh (supra) has no application to the facts of the case.
The allegations of beating are against the son of the Petitioners. An
application for cancellation of bail of the son of the Petitioners has already
been filed by the complainant.
8. Learned counsel for the Petitioners has strenuously relied on
Siddharam Satlingappa Mhetre (supra). The Hon’ble Supreme Court in the
said decision warned against false implication and also laid down that while
granting anticipatory bail, a balance has to be struck between two major
factors i.e. there should be no prejudice to the free, fair and full investigation
and to prevent harassment, humiliation and unjustified detention of the
accused. In the present case the photographs produced before this Court at
the time of hearing clearly show that extensive silver and gold items were
taken in dowry, however the same are now being refused to be returned on
the pretext that the same are not istridhan. Learned counsel for the
Petitioner in this regard has already undertaken to deposit Rs. 17.5 lakhs
without prejudice to the rights of the parties.
9. In the facts and circumstances of the case, in the event of arrest, the
Petitioners be released on bail on their furnishing a personal bond in the sum
of Rs.50,000/- each with one surety of the like amount each to the
satisfaction of the Arresting Officer/SHO concerned, further subject to the
condition that they will join the investigation as and when directed and will
also deposit a further sum of Rs.17.5 lakhs in the form of FDR in the name
of the complainant with the Investigating Officer within two weeks and they
will not leave the country without prior permission of the learned Trial
Court.
10. On filing of the charge sheet, the aforesaid two FDRs of Rs.10 lakhs
and Rs.17.5 lakhs in the name of the complainant will be deposited with the learned Trial Court and will be subject to the orders passed by the learned
Trial Court during trial.
11. The petition is disposed of.
Sd/-
(MUKTA GUPTA)
JUDGE
MARCH 22, 2013

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