How to Declare Persons absconding from the Law as “Proclaimed Offender”(P.O.)

The Hon’ble Delhi High Court in the matter of Sunil Tyagi vs Govt Of Nct Of Delhi & Anr

Made the following guidelines:-

491. The law with respect to the declaration of a person as a Proclaimed Person/Offender is well settled. This Court has laid down the Guidelines to be followed by the Courts before declaring a person as a Proclaimed Person/ Offender. The Courts shall consider the Guidelines before declaring a person as a Proclaimed Person/Offender.

492. The Court, after declaring the person as a Proclaimed Person/Offender, shall direct the Police to trace and identify the movable and immovable properties of the Proclaimed Person/Offender and file the status report with respect to the assets of the Proclaimed Person/Offender. The Court shall thereafter proceed to attach the movable and immovable properties of the Proclaimed Person/Offender in accordance with the law.

493. After the declaration of a person as a Proclaimed Person/Offender, the Police is required to trace the Proclaimed Person/Offender and arrest him. This Court has laid down the Guidelines for early apprehension of the Proclaimed Persons/Offenders. The Court declaring a person as a Proclaimed Person/Offender shall direct the Police to take all necessary action for tracing the Proclaimed Person/Offender and file the Status Report with respect to the action taken by the Police.

494. All the Courts below are directed not to close the matter after declaring a person as a Proclaimed Person/Offender. Rather, the Courts shall direct the police to file the Status Report with respect to the efforts made to trace the Proclaimed Persons/Offenders; efforts made to trace or attach their movable/ immovable assets/properties and their prosecution in accordance with law. The concerned Courts shall monitor the action taken by the Police and shall issue such fresh directions as may be considered necessary. The Court may, in appropriate cases, record the evidence of the witnesses under Section 299 CrPC.

495. Although no time period is prescribed for prosecution of the Proclaimed Persons/Offender, this Court is of the view that the Proclaimed Offender be prosecuted under Section 174A IPC, if the Proclaimed Person/Offender does not surrender or is not traced out within a period of six months of being declared as a Proclaimed Person/Offender. If the accused has also violated the condition(s) of bail bond by non-appearance in Court, the accused be also prosecuted under Section 229A IPC.

496. All the Courts below shall send a quarterly compliance Report to the Registrar General. The Compliance Report shall give the number of Proclaimed Persons/Offenders declared by the Court; number of cases in which Proclaimed Persons/Offenders have been traced/arrested; number of cases in which assets of Proclaimed Persons/Offenders have been attached; and number of cases in which the accused have been prosecuted under Section 174A and/or under Section 229A IPC, as applicable and number of cases in which Signature Not Verified Digitally Signed KARKI Signing Date:30.06.2021 18:28:47 evidence has been recorded in Section 299 CrPC. In the event of non-compliance, the Registrar General shall place the Report before the ACR Committee of the Judicial Officer.

497. As per the status report of Delhi Police, there were 26,532 Proclaimed Persons and 3,826 Proclaimed Offenders as on 31st September, 2019. This number is increasing day by day as no concrete steps have been taken to trace the Proclaimed Persons/Offenders; and to attach their assets and to prosecute them. There appears to be the tendency of the Court as well as the Police to close the matter after the person is declared as a Proclaimed Person/Offender and the file is consigned to Record Room. This is a serious lapse considering that the criminal law which sets into motion with the filing of an FIR, comes to an abrupt end which is against the most basic tenets of justice and causes an irreparable injury to the entire society including victims.

498. Delhi Police as well as CBI shall create a Special Cell for tracing out the Proclaimed Persons/Offenders; for attaching their movable/immovable properties and for their prosecution. Delhi Police as well as CBI are at liberty to have a consolidated Special Cell. This Special Cell be created within a period of four weeks.

499. This Court is of the view that it would be appropriate and in the interest of justice to constitute a High-Powered Committee to supervise the implementation of Guidelines laid down by this Court relating to the Proclaimed Persons/Offenders. In view of the abovea Committee is hereby constituted comprising of the following members:

(i) Joint Secretary to be nominated by the Secretary, Ministry of Home Affairs.

(ii) Principal Secretary (Law), Department of Law, Justice & Legislative Affairs, Goverment of NCT Delhi.

(iii) Special Commissioner of Delhi Police to be nominated by Commissioner of Police.

(iv) Additional Director of CBI to be nominated by Director, CBI.

(v) Joint Director (CCTNS) to be nominated by Director General of Bureau of Police Research & Development (BPR&D).

(vi) Mr. Surinder S. Rathi, Officer of DHJS presently posted as Registrar and OSD to Hon‟ble the Chief Justice of Delhi High Court, as a Convenor.

(vii) Mr. Kanwal Jeet Arora, Officer of DHJS presently posted as Member Secretary, DSLSA.

(viii) Mr. Shashikant Sharma, HOD, Inter-operable Criminal Justice System (ICJS), NIC.

(ix) Mr. Nikhil Goel, Standing Counsel for CBI.

(x) Mr. Sanjay Lao, Standing Counsel for Delhi Police.

500. The constitution of the Committee shall be appropriately notified by the Ministry of Home Affairs, Government of India within four weeks along with provisioning of necessary secretarial assistance.

501. This Court has issued various guidelines for early apprehension of the Proclaimed Persons/Offenders. All the Guidelines are important and need to be implemented. However, if all the Guidelines cannot be implemented immediately, the same may be implemented in a phased manner under the supervision of the above Committee.

502. The Committee shall convene the first meeting within four weeks and shall, after hearing the Delhi Police and CBI, decide which Guidelines can be implemented immediately. The Committee shall thereafter meet at least once a month for implementation of the remaining guidelines in a phased manner. The Committee shall ensure that all the Guidelines are implemented in a phased manner within a period of eight months to one year.

503. The Committee shall also consider Unified Criminal Justice System, Research Paper filed by Mr. Surinder S. Rathi which contains valuable innovative suggestions for bringing in the much desired efficiency in the Criminal Justice System through intelligent digitization.

504. The Committee shall supervise the implementation of the Guidelines issued by this Court to be followed by Delhi Police as well as CBI. Delhi Police as well as CBI shall file the quarterly Status Report before the Committee giving the list of the Proclaimed Persons/Offenders, efforts made to trace out the Proclaimed Persons/Offenders, efforts made to trace and attach the movable and immovable properties of the Proclaimed Persons/Offenders and the prosecution under Sections 174A and 229A IPC. The first compliance report for the quarter 01st August, 2021 to 31st October, 2021 be filed by 15th November, 2021 and thereafter by 15th of each quarter. The same be considered by the Committee within four weeks thereafter. The Committee shall, after considering the compliance reports, issue fresh directions as may be considered necessary to implement the Guidelines.

505. In Hussain v. Union of India, (2017) 5 SCC 702, the Supreme Court noted that the trials were getting delayed on account of absconding of one or the other accused during the trial. The Supreme Court noted Section 339-B of the Code of Criminal Procedure, 1898 of Bangladesh which permitted trial in absentia. The Supreme Court recommended similar amendment of CrPC to reduce the delay due to the absconding of the accused during the trial. The Central Government shall consider the same within eight weeks. Relevant portion of the said judgment is reproduced hereunder:

―23. Another suggestion which cropped up during the hearing of the present case relates to remedying the situation of delay in trials on account of absconding of one or the other accused during the trial. In this regard our attention has been drawn to an amendment in the Code of Criminal Procedure, 1898 of Bangladesh by way of adding Section 339-B to the following effect:

―339-B. Trial in absentia.–(1) Where after the compliance with the requirements of Section 87 and Section 88, the Court has reason to believe that an accused person has absconded or concealing himself so that he cannot be arrested and produced for trial and there is no immediate prospect of arresting him, the Court taking cognizance of the offence complained of shall, by order published in at least two national daily Bengali Newspapers having wide circulation, direct such person to appear before it within such period as may be specified in the order, and if such person fails to comply with such direction, he shall be tried in his absence.

(2) Where in a case after the production or appearance of an accused before the Court or release on bail, the accused person absconds or fails to appear, the procedure as laid down in sub-section (1) shall not apply and the Court competent to try such person for the offence complained of shall, recording its decision so to do, try such person in his absence.‖

24. It is for the authority concerned to take cognizance of the above amendment which may considerably reduce delay in cases where one or the other accused absconds during the trial.‖ (Emphasis supplied)

506. This Court appreciates the exemplary work done by the Internal Committees of CBI as well as Delhi Police in terms of the directions issued by this Court on 07th January, 2021.

508. These petitions are disposed of. It is clarified that these cases have already been decided on merits.

509. Copy of this judgment be sent to the District Judges who shall circulate it to all the concerned Courts.

510. Copy of this judgment be sent to Delhi Judicial Academy to sensitise the judges about these Guidelines.

511. Delhi Judicial Academy shall upload this judgment on their website (http://judicialacademy.nic.in) as good practices of this Court.

Without issuance of NBW(Non Bailable Warrant) a Person Canot declare PO( Proclaimed Offender)under section 82 of Cr.P.c.

“10. Section 82(1) Cr.P.C. clearly shows that before issuance of proclamation under Section 82 Cr.P.C. issuance of NBW is necessary because Section 82 Cr.P.C. itself says that “if the Court has reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself”, hence the issuance of NBW before proclamation under Section 82 Cr.P.C is necessary. In the present matter, the investigation is going on, wherein a person died by consuming toxic liquor and the petitioner is wanted for the investigation. But it is also important that Magistrate should not pass such order in a routine manner, on the simple application of the Investigating Officer. The application should be supported by an affidavit of the Investigating Officer stating the reasons why NBW and proclamation under Section 82 Cr.P.C. is required, as the issue relates to the personal liberty of a person guaranteed under Article 21 of the Constitution of India.”

in the case of Kunwar Mahendra Pratap Singh @ Chandan Singh Vs. State of U.P. & Ors., whereby this Court has observed that if any application for seeking proclamation order under Section 82 Cr.P.C. is filed, the same should be supported with an affidavit of Investigating Officer stating that the reasons why warrant and proclamation under Section 82 Cr.P.C. is required, inasmuch as the issue is directly relating to the personal liberty of a person guaranteed under Section 21 of the Constitution of India.

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Vinod Kumar Singh @ Vinod Singh vs State Of U.p. Thru. Prin. Secy. Home

(High Court Of Judicature At Allahabad, Lucknow Bench)

U/S 482/378/407 No. – 5195 of 2021 | 10-12-2021

Rajesh Singh Chauhan,J.

1. Heard Sri S.M. Singh Royekwar, learned counsel for the applicant, Sri Vipul Gupta, learned A.G.A. for the State. By means of this petition, the applicant has prayed the following reliefs:

“a) That, in view of the full facts and circumstances which have been disclosed in the accompanying affidavit and annexures therein and which may be read in support of the present petition under Section 482 Cr.P.C., it is expedient in the interest of justice that this Hon’ble Court may graciously be pleased to quash the order dated 08.09.2021 passed by the Court of the Chief Judicial Magistrate, Unnao vide FIR No. 257/2020 P.S., Kotwali, District Unnao, whereby the proceedings under Section 82 Cr.P.C. has been initiated against the petitioner in most illegal, unjust and arbitrary manner.

b) It is prayed that further operation of the impugned order may be stayed during pendency of the present petition.”

2. The learned counsel for the applicant has drawn attention of this Court towards Annexure-1 which is an application dated 8.9.2021 of the I.O. filed before the C.J.M., Unnao seeking proclamation under Section 82 Cr.P.C. against the applicant. Sri Royekwar has submitted that the contention in the aforesaid application dated 8.9.2021 is that the applicant is not traceable even after issuance of N.B.W. on 5.8.2021, is absolutely wrong and misleading. The learned counsel for the applicant has drawn attention of this Court towards paragraph 11 to 17 of the petition, wherein he has categorically indicated that the Investigating Officer concerned has never approached the applicant. He has further submitted that since the proclamation issued under Section 82 Cr.P.C. has been served upon the residence of the applicant so the N.B.W. dated 5.8.2021 could have also been served upon the applicant but no proper initiative or effort has been taken by the I.O. to serve such warrant. He has categorically indicated on affidavit that the applicant is resident of village Dhaurahara, Khulava, Mahali Patii, Mirzapur, Uttar Pradesh- 231312 and presently he is residing at the said address.

3. Sri Royekwar has submitted that the aforesaid illegal and unwarranted exercise on the part of the I.O. concerned, has been deliberately and intentionally done against the applicant, inasmuch as, if the process under Section 82 Cr.P.C. is issued, the person concerned may not avail the remedy of anticipatory bail. Therefore, the aforesaid exercise seeking proclamation under Section 82 Cr.P.C., without having cogent reasons to that effect, is not only illegal but the same is violative of Article 21 of the Constitution of India.

4. Sri Royekwar, has drawn attention of this Court towards the order dated 18.8.2021 passed by this Court in the case of Kunwar Mahendra Pratap Singh @ Chandan Singh Vs. State of U.P. & Ors. referring para 10 thereof which reads as under:

“10. Section 82(1) Cr.P.C. clearly shows that before issuance of proclamation under Section 82 Cr.P.C. issuance of NBW is necessary because Section 82 Cr.P.C. itself says that “if the Court has reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself”, hence the issuance of NBW before proclamation under Section 82 Cr.P.C is necessary. In the present matter, the investigation is going on, wherein a person died by consuming toxic liquor and the petitioner is wanted for the investigation. But it is also important that Magistrate should not pass such order in a routine manner, on the simple application of the Investigating Officer. The application should be supported by an affidavit of the Investigating Officer stating the reasons why NBW and proclamation under Section 82 Cr.P.C. is required, as the issue relates to the personal liberty of a person guaranteed under Article 21 of the Constitution of India.”

5. Sri Royekwar has submitted that this Court has observed in the aforesaid judgment that the Magistrate should not issue proclamation order under Section 82 of Cr.P.C. in a routine manner, on the simple application of Investigating Officer as the application should be supported by an affidavit of Investigating Officer stating the reasons why non-bailable warrant and proclamation under Section 82 Cr.P.C. is required. Therefore, in view of the aforesaid submission, the impugned proclamation issued under Section 82 Cr.P.C. may be quashed so that the applicant could avail anticipatory bail before this Court, inasmuch as his anticipatory bail has already been rejected by the learned Sessions Court.

6. Per contra, Sri Vipul Gupta, learned A.G.A. for the State, has opposed the aforesaid prayer by submitting that since the applicant has been avoiding the process of law by not cooperating in the investigation, therefore, having no other option, the request has been prayed for issuing the proclamation order under Section 82 Cr.P.C. Further, when the applicant did not turn up after non-bailable warrant being issued on 5.8.2021 such request has been prayed from the court below. He has also submitted that even the judgment so cited in the case of Kunwar Mahendra Pratap Singh @ Chandan Singh (supra), this Court directed that the applicant to appear/surrender before the Court within stipulated time frame.

7. Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that if the accused person does not co-operate with the investigation, the coercive process are the only way out to be issued against him. But, at the same time, it is incumbent upon the Investigating Agency to follow the process of law step by step. The I.O. shall have to ensure that despite his all possible efforts, the accused person is not co-operating with the investigation so the bailable and non-bailable warrant should be issued. The efforts to serve such process upon the applicant should have been indicated in the application before seeking proclamation order under Section 82 Cr.P.C. and the Magistrate concerned must have subjective satisfaction, after verifying the relevant fact that despite all possible efforts and service of process of warrants, the accused person is not co-operating with the investigation, the Magistrate may very well issue the N.B.W. or/and the proclamation under Section 82 Cr.P.C.

8. I am in an agreement with the observation of this Court in the case of Kunwar Mahendra Pratap Singh @ Chandan Singh Vs. State of U.P. & Ors., whereby this Court has observed that if any application for seeking proclamation order under Section 82 Cr.P.C. is filed, the same should be supported with an affidavit of Investigating Officer stating that the reasons why warrant and proclamation under Section 82 Cr.P.C. is required, inasmuch as the issue is directly relating to the personal liberty of a person guaranteed under Section 21 of the Constitution of India.

9. In the present case, if the proclamation order under Section 82 Cr.P.C. has been served at the residence of the applicant then I wonder as to why the non-bailable warrant has not been served upon the applicant. If there was any cogent reason to that effect, it should have been categorically indicated in such an application filed by the I.O. Further, the reasons of application seeking proclamation under Section 82 Cr.P.C. should be clear, inasmuch as, on the vague allegations, such application should not be filed. Therefore, the necessity of an affidavit has been thought by this Court.

10. Learned counsel for the applicant has categorically indicated vide para 11 to 17 that the applicant has never avoided any process rather I.O. has never approached the applicant or his family members.

11. Considering the fact that no proper steps have been taken by the I.O. to serve the process of warrants upon the applicant at his residence in a same manner the proclamation of Section 82 Cr.P.C. has been served and on account of proclamation order issued under Section 82 Cr.P.C., the applicant would not be able to avail remedy of filing anticipatory bail before this Court, hence, I hereby, set aside the proclamation order dated 8.9.2021 passed by the learned court below.

12. However, it is clarified that this order may not be treated as a protection for the applicant for non-co-operating the investigation or not to follow the process of law, inasmuch as, no one can avoid the process of law and the proceedings of investigation or trial.

13. Since, the proclamation order issued under Section 82 Cr.P.C. has been set aside, therefore, the Investigating Officer and the learned court below may take appropriate steps against the applicant strictly in accordance with law.

14. Let this order be intimated to the Director General of Police through the Senior Registrar of this Court within 5 days so that after taking cognizance of this order, the Director General of Police may issue appropriate circular issuing guidelines under such circumstances the warrants and proclamation orders may be sought from the appropriate court of law and necessity of affidavit with such applications be made mandatory in the light of observation of this Court dated 18.8.2021 in re: Kunwar Mahendra Pratap Singh @ Chandan Singh (supra).

15. The petition is disposed of accordingly.

Vinod Kumar Singh @ Vinod Singh v. State Of U.P. Thru. Prin. Secy. Home

Whether an anticipatory bail granted to a person under Section 438 Cr.P.C. should be limited to a fixed period only and he or she has to surrender before the Trial Court and seek regular bail.

In the light of the conflicting views of the different Benches of varying strength, more particularly in the cases of Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC Signature Not Verified 565; Siddharam Satlingappa Mhetre v. State of Maharashtra Digitally signed by NARENDRA PRASAD Date: 2020.01.29 16:54:35 IST Reason:

(2011) 1 SCC 694; Bhadresh Bipinbhai Sheth v. State of Gujarat
(2016) 1 SCC 152 on one side and in the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667, subsequently followed in the case of K.L. Verma v. State and another (1998) 9 SCC 348; Sunita Devi v. State of Bihar (2005) 1 SCC 608; Nirmal Jeet Kaur v. State of M.P. (2004) 7 SCC 558;

HDFC Bank Limited v. J.J. Mannan (2010) 1 SCC 679; and Satpal Singh v. State of Punjab (2018) 4 SCC 303,

The following questions are referred for consideration by a larger Bench:

“(1) Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.

(2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.”

 In the matter of Sushila Aggarwal vs State (Nct Of Delhi) in SPECIAL LEAVE PETITION (CRIMINAL) NOS.7281­7282/2017 the Hon’ble Apex Court held that :-

In the light of the conflicting views of the different Benches of varying strength, the following questions are referred for consideration by a larger Bench:

“(1) Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.

(2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.” 7.1 At the outset, it is required to be noted that as such the expression “anticipatory bail” has not been defined in the Code. As observed by this Court in the case of Balchand Jain (supra), “anticipatory bail” means “bail in anticipation of
arrest”. As held by this Court, the expression “anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. An application for “anticipatory bail” in anticipation of arrest could be moved by the accused at a stage before an FIR is filed or at a stage when FIR is registered but the charge sheet has not been filed and the investigation is in progress or at a stage after the investigation is concluded. Power to grant “anticipatory bail” under Section 438 of the Cr.P.C. vests only with the Court of Sessions or the High Court. Therefore, ultimately it is for the concerned court to consider the application for “anticipatory bail” and while granting the “anticipatory bail” it is ultimately for the concerned court to impose conditions including the limited period of “anticipatory bail”, depends upon the stages at which the application for anticipatory bail is moved. A person in whose favour a pre­arrest bail order is made under Section 438 of the Cr.P.C. has to be arrested. However, once there is an order of pre­arrest bail/anticipatory bail, as and when he is arrested he has to be released on bail. Otherwise, there is no distinction or difference between the pre­arrest bail order
under Section 438 and the bail order under Section 437 & 439 of the Cr.P.C. The only difference between the pre­arrest bail order under Section 438 and the bail order under Sections 437 and 439 is the stages at which the bail order is passed. The bail order under Section 438 of the Cr.P.C. is prior to his arrest and in anticipation of his arrest and the order of bail under Sections 437 and 439 is after a person is arrested. A bare reading of Section 438 of the Cr.P.C. shows that there is nothing in the language of the Section which goes to show that the pre­arrest bail granted under Section 438 has to be time bound. The position is the same as in Section 437 and Section 439 of the Cr.P.C.

7.2 While considering the issues referred to a larger Bench, referred to hereinabove, the decision of the Constitution Bench of this Court in Gurbaksh Singh Sibbia (supra) is required to be referred to and considered in detail. The matter before the Constitution Bench in the case of Gurbaksh Singh Sibbia (supra) was arising out of the decision of the Full Bench of the Punjab and Haryana High Court.

The High Court rejected the application for bail after
summarising, what according to it was the true legal position, thus, “(1) The power under Section 438, Criminal Procedure Code, is of an extraordinary character and must be exercised sparingly in exceptional cases only;

(2) Neither Section 438 nor any other provision of the Code authorises the grant of blanket anticipatory bail for offences not yet committed or with regard to accusations not so far levelled.

(3) The said power is not unguided or uncanalised but all the limitations imposed in the preceding Section 437, are implicit therein and must be read into Section 438.

(4) In addition to the limitations mentioned in Section 437, the petitioner must make out a special case for the exercise of the power to grant anticipatory bail.

(5) Where a legitimate case for the remand of the offender to the police custody under Section 167(2) can be made out by the investigating agency or a reasonable claim to secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act can be made out, the power under Section 438 should not be exercised.

(6) The discretion under Section 438 cannot be exercised with regard to offences punishable with death or imprisonment for life unless the court at that very stage is satisfied that such a charge appears to be false or groundless.

(7) The larger interest of the public and State demand that in serious cases like economic
 offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised; and (8) Mere general allegations of mala fides in the petition are inadequate. The court must be satisfied on materials before it that the allegations of mala fides are substantial and the accusation appears to be false and groundless.” 7.3 After considering the scheme of “anticipatory bail” under Section 438, Cr.P.C. and while not agreeing with the Full Bench, this Court has observed and held as under:

“12. …..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. Though the right to apply for anticipatory bail was conferred for the first time by Section 438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, insofar as the right to apply for bail is concerned. It had before it two cognate provisions of the Code: Section 437 which deals with the power of courts other than the Court of Session and the High Court to grant bail in non­bailable cases and Section 439 which deals with the “special powers” of the High Court and the Court of Session regarding bail…..

The provisions of Sections 437 and 439 furnished a convenient model for the legislature to copy while enacting Section 438. If it has not done so and has departed from a
pattern which could easily be adopted with the necessary modifications, it would be wrong to refuse to give to the departure its full effect by assuming that it was not intended to serve any particular or specific purpose. The departure, in our opinion, was made advisedly and purposefully: Advisedly, at least in part, because of the 41st Report of the Law Commission which, while pointing out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant anticipatory bail, said in para 39.9 that it had “considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted” but had come to the conclusion that the question of granting such bail should be left “to the discretion of the court” and ought not to be fettered by the statutory provision itself, since the discretion was being conferred upon superior courts which were expected to exercise it judicially. The legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. That is why, departing from the terms of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session “may, if it thinks fit” direct that the applicant be released on bail. Sub­section (2) of Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail. It provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, “may include such conditions in such directions in the light of the facts of the particular case, as it may think fit”, including the conditions which are set out in clauses (i) to

(iv) of sub­section (2). The proof of legislative intent can best be found in the language which the legislature uses.

Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and the presumption of innocence. It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non­ bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, insofar as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail if generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non­bailable offence asks for bail. In the latter situation, adequate data is available to the court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437.

13. This is not to say that anticipatory bail, if granted, must be granted without the imposition of any conditions. That will be plainly contrary to the very terms of Section 438. Though sub­section (1) of that section says that the court “may, if it thinks fit” issue the necessary direction for bail, sub­section (2) confers on the court the power to include such conditions in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in clauses (i) to (iv) of that sub­section. The controversy therefore is not whether the court has the power to impose conditions while granting anticipatory bail. It clearly and expressly has that power. The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory
bail, should be cut down by reading into the statute conditions which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General. Our answer, clearly and emphatically, is in the negative. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code.

xxx xxx xxx xxx xxx xxx xxx xxx

18. According to the sixth proposition framed by the High Court, the discretion under Section 438 cannot be exercised in regard to offences punishable with death or imprisonment for life unless, the court at the stage of granting anticipatory bail, is satisfied that such a charge appears to be false or groundless. Now, Section 438 confers on the High Court and the Court of Session the power to grant anticipatory bail if the applicant has reason to believe that he may be arrested on an accusation of having committed “a non­bailable offence”. We see no warrant for reading into this provision the conditions subject to which bail can be granted under Section 437(1) of the Code. That section, while conferring the power to grant bail in cases of non­bailable offences, provides by way of an exception that a person accused or suspected of the commission of a non­bailable offence “shall not be so released” if there appear to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. If it was intended that the exception contained in Section 437(1) should govern the grant of relief under Section 438(1), nothing would have
been easier for the legislature than to introduce into the latter section a similar provision. We have already pointed out the basic distinction between these two sections. Section 437 applies only after a person, who is alleged to have committed a non­bailable offence, is arrested or detained without warrant or appears or is brought before a court. Section 438 applies before the arrest is made and, in fact, one of the pre­conditions of its application is that the person, who applies for relief under it, must be able to show that he has reason to believe that “he may be arrested”, which plainly means that he is not yet arrested. The nexus which this distinction bears with the grant or refusal of bail is that in cases falling under Section 437, there is some concrete data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In cases falling under Section 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing. The foundation of the belief spoken of in Section 437(1), by reason of which the court cannot release the applicant on bail is, normally, the credibility of the allegations contained in the first information report. In the majority of cases falling under Section 438, that data will be lacking for forming the requisite belief. If at all the conditions mentioned in Section 437 are to be read into the provisions of Section 438, the transplantation shall have to be done without amputation. That is to say, on the reasoning of the High Court, Section 438(1) shall have to be read as containing the clause that the applicant “shall not” be released on bail “if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life”. In this process one shall have overlooked that whereas, the power under Section 438(1) can be exercised if the High Court or the Court of Session “thinks fit” to do so, Section 437(1) does
not confer the power to grant bail in the same wide terms The expression “if it thinks fit”, which occurs in Section 438(1) in relation to the power of the High Court or the Court of Session, is conspicuously absent in Section 437(1). 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 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.

19. A great deal has been said by the High Court on the fifth proposition framed by it, according to which, inter alia, the power under Section 438 should not be exercised if the investigating agency can make a reasonable claim that it can secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act. According to the High Court, it is the right and the duty of the police to investigate into offences brought to their notice and therefore, courts should be careful not to exercise their powers in a manner which is calculated to cause interference therewith. ….. An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the usual conditions incorporated in a direction issued under Section 438(1) are those recommended in sub­section (2)(i) and (ii) which require the applicant to cooperate with the police and to assure that he shall not tamper with the witnesses during and after the investigation. While granting relief under Section 438(1), appropriate conditions can be imposed under Section
438(2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya [AIR 1960 SC 1125 : (1961) 1 SCR 14, 26 : 1960 Cri LJ 1504] to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed so have surrendered himself to the police. The broad foundation of this rule is stated to be that Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Section 167(2) of the Code is made out by the investigating agency.

20. It is unnecessary to consider the third proposition of the High Court in any great details because we have already indicated that there is no justification for reading into Section 438 the limitations mentioned in Section 437. The High Court says that such limitations are implicit in Section 438 but, with respect, no such implications arise or can be read into that section. The plenitude of the section must be given its full play.

The Apex Court further held in the same judgments as under:- ( relevant paras)

Now, coming to the instruction in some decisions that anticipatory bail should not be given, or granted with stringent conditions, upon satisfaction that the accused is not involved, Sibbia, clearly disapproved the imposition of such restrictions, or ruling out of certain offences or adoption of a cautious or special approach. It was held that:

“A close look at some of the rules in the eight-point code formulated by the High Court will show how difficult it is to apply them in practice. The seventh proposition says :

“The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised.”

How can the Court, even if it had a third eye, assess the blatantness of corruption at the stage of anticipatory bail? And will it be correct to say that blatantness of the accusation will suffice for rejecting bail, even if the applicant’s conduct is painted in colours too lurid to be true? The eighth proposition rule framed by the High Court says:

“Mere general allegations of mala fides in the petition are inadequate. The court must be satisfied on materials before it that the allegations of mala fide are substantial and the accusation appears to be false and groundless.”

Does this rule mean, and that is the argument of the learned Additional Solicitor-General, that the anticipatory bail cannot be granted unless it is alleged (and naturally, also shown, because mere allegation is never enough) that the proposed accusations are mala fide ? It is understandable that if mala fides are shown anticipatory bail should be granted in the generality of cases. But it is not easy to appreciate why an application for anticipatory bail must be rejected unless the accusation is shown to be mala fide. This, truly, is the risk involved in framing rules by judicial construction. Discretion, therefore, ought to be permitted to remain in the domain of discretion, to be exercised objectively and open to correction by the higher courts. The safety of discretionary power lies in this twin protection which provides a safeguard against its abuse.

According to the sixth proposition framed by the High Court, the discretion under Section 438cannot be exercised in regard to offences punishable with
 death or imprisonment for life unless, the court at the stage of granting anticipatory bail, is satisfied that such a charge appears to be false or groundless. Now, Section 438 confers on the High Court and the Court of Session the power to grant anticipatory bail if the applicant has reason to believe that he may be arrested on an accusation of having committed “a non-bailable offence”. We see no warrant for reading into this provision the conditions subject to which bail can be granted under Section 437 (1) of the Code. That section, while conferring the power to grant bail in cases of non-bailable offences, provides by way of an exception that a person accused or suspected of the commission of a non-bailable offence “shall not be so released” if there appear to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. If it was intended that the exception contained in Section 437 (1) should govern the grant of relief under Section 438 (1), nothing would have been easier for the legislature than to introduce into the latter section a similar provision. We have already pointed out the basic distinction between these two sections. Section 437 applies only after a person, who is alleged to have committed a non-bailable offence, is arrested or detained without warrant or appears or is brought before a court. Section 438 applies before the arrest is made and, in fact, one of the pre-conditions of its application is that the person, who applies for relief under it, must be able to show that he has reason to believe that “he may be arrested”, which plainly means that he is not yet arrested. The nexus which this distinction bears with the grant or refusal of bail is that in cases falling under Section 437, there is some concrete data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In cases falling under Section 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing. The foundation of the belief spoken of in Section 437 (1), by reason of which the court cannot release the applicant on bail is, normally, the credibility of the allegations contained in the First Information Report.”

68. For the above reasons, the answer to the first question in the reference made to this bench is that there is no offence, per se, which stands excluded from the purview of Section 438, – except the offences mentioned in Section 438 (4). In other words, anticipatory bail can be granted, having regard to all the circumstances, in respect of all offences. At the same time, if there are indications in any special law or statute, which exclude relief under Section 438 (1) they would have to be duly considered. Also, whether anticipatory offences should be granted, in the given facts and circumstances of any case, where the allegations relating to the commission of
offences of a serious nature, with certain special conditions, is a matter of discretion to be exercised, having regard to the nature of the offences, the facts shown, the background of the applicant, the likelihood of his fleeing justice (or not fleeing justice); likelihood of co-operation or non-co-operation with the investigating agency or police, etc. There can be no inflexible time frame for which an order of anticipatory bail can continue.

69. Therefore, this court holds that the view expressed in Salauddin Abdulsamad Shaikh, K.L. Verma, Nirmal Jeet Kaur, Satpal Singh, Adri Dharan Das, HDFC Bank, J.J. Manan and Naresh Kumar Yadav (supra) about the Court of Sessions, or the High Court, being obliged to grant anticipatory bail, for a limited duration, or to await the course of investigation, so as the “normal court” not being “bye passed” or that in certain kinds of serious offences, anticipatory bail should not be granted normally- including in economic offences, etc are not good law. The observations – which indicate that such time related or investigative event related conditions, should invariably be imposed at the time of grant of anticipatory bail are therefore, overruled. Similarly, the observations in Mhetre 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” is too wide and cannot be considered good law. It is one thing to say that as a matter of law, ordinarily special conditions (not mentioned in Section 438 (2) read with Section 437 (3) should not be imposed; it is an entirely different thing to say that in particular instances, having regard to the nature of the crime, the role of the accused, or some peculiar feature, special conditions should not be imposed. The judgment in Sibbia itself is an authority that such conditions can be imposed, but not in a routine or ordinary manner and that such conditions then become an inflexible “formula” which the courts would have to follow. Therefore, courts and can, use their discretion, having regard to the offence, the peculiar facts, the role of the offender, circumstances relating to him, his likelihood of subverting justice (or a fair investigation), likelihood of evading or fleeing justice- to impose special conditions. Imposing such conditions, would have to be on a case to case basis, and upon exercise of discretion by the court seized of the application under Section 438. In conclusion, it
is held that imposing conditions such as those stated in Section 437 (2) while granting bail, are normal; equally, the condition that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, person released on bail shall be liable to be taken in police custody for facilitating the discovery. Other conditions, which are restrictive, are not mandatory; nor is there any invariable rule that they should necessarily be imposed or that the anticipatory bail order would be for a time duration, or be valid till the filing of the FIR, or the recording of any statement under Section 161, Cr. PC, etc. Other conditions may be imposed, if the facts of the case so warrant.

Re Question No. 2: Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.

70. The question here is whether there is anything in the law which per se requires that upon filing of the charge-sheet, or the summoning of the accused, by the court – (or even the addition of an offence in the charge-sheet, of which an applicant on bail is accused of freshly), his liberty ought to be forfeited and that he should be asked to surrender and apply for regular bail. The observations about the width and amplitude of the power under Section 438, made in answer to the first question, are equally relevant here too. In the present context, further, the judgment and observations of this Court in its interpretation of Section 167(2) are telling. It was held in Gursharan Singh (supra), the release by grant of bail of an accused under Section 167(2) amounts to “deemed bail”. This is borne out by Section 167(2) which states that anyone released on bail under its provision “shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.” The judgment in Aslam Babalal Desai (supra) has clarified that when an accused is released by operation of Section 167(2) and subsequently, a charge-sheet is filed, there is no question of the cancellation of his bail. In these circumstances, the mere fact that an accused is given relief under Section 438 at one stage, per se does not mean that upon the filing of a charge-sheet, he is necessarily to surrender or/and apply for regular bail. The analogy to ‘deemed bail’ under Section 167(2) with anticipatory bail leads this court to conclude that the mere subsequent event of the filing of a charge-sheet cannot
compel the accused to surrender and seek regular bail. As a matter of fact, interestingly, if indeed, if a charge-sheet is filed where the accused is on anticipatory bail, the normal implication would be that there was no occasion for the investigating agency or the police to require his custody, because there would have been nothing in his behavior requiring such a step. In other words, an accused, who is granted anticipatory bail would continue to be at liberty when the charge sheet is filed, the natural implication is that there is no occasion for a direction by the Court that he be arrested and further that he had cooperated with the investigation. At the same time, however, at any time during the investigation were any occasion to arise calling for intervention of the court for infraction of any of the conditions imposed under Section 437(3) read with Section 438(2) or the violation of any other condition imposed in the given facts of a case, recourse can always be had under Section 439(2).

71. Section 438 (3) states that when a person is granted anticipatory bail, is later arrested without warrant by an officer in charge of a police station “on such accusation”, and is willing 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)”. The order granting anticipatory bail, is also- as noticed earlier, and in several previous decisions, a “direction” under this Section 438 “that in the event of such arrest” the applicant be released on bail. Therefore, when an accused in fact is granted bail, and the conditions outlined in Section 438 (2) are included as part of the direction “to release” him in the event of arrest, all the necessary conditions which he is obliged to follow exist. Section 438 (3) outlines the steps to be taken, in the event of arrest of one who has been granted relief under Section 438 (1). In the event of non-compliance with any or all conditions, imposed by the court, the concerned agency or the police, a direction can be sought from the court under Section 439 (2).

72. The view that this court expresses about the prosecution’s option to apply for a direction to arrest the accused, finds support in Pradeep Ram (supra) where this court held as follows:

“21. Both Sections 437 (5) and 439 (2) empowers the Court to arrest an accused and commit him to custody, who has been released on bail under Chapter XXXIII. There may be numerous grounds for exercise of power under 437 (5) and 439 (2). The principles and grounds for cancelling a bail are well settled, but in the present case, we are concerned only with one aspect of the matter, i.e., a case where after accused has been granted the bail, new and serious offences are added in the case. A person against whom serious offences have been added, who is already on bail can very well be directed to be arrested and committed to custody by the Court in exercise of power under 437 (5) and 439 (2). Cancelling the bail granted to an accused and directing him to arrest and taken into custody can be one course of the action, which can be adopted while exercising power under 437 (5) and 439 (2), but there may be cases where without cancelling the bail granted to an accused, on relevant consideration, Court can direct the accused to be arrested and committed to custody. The addition of serious offences is one of such circumstances, under which the Court can direct the accused to be arrested and committed to custody despite the bail having been granted with regard to the offences with which he was charged at the time when bail was considered and granted.

******** ******** ********

25. We may have again to look into provisions of Sections 437 (5) and 439 (2) of Cr.P.C. Sub-section (5) of Sections 437 of Cr.P.C uses expression ‘if it considers it necessary so to do, direct that such person be arrested and commit him to custody’. Similarly, sub-section (2) of Section 439 of Cr.P.C. provides: ‘may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody’. A plain reading of the aforesaid provisions indicates that provision does not mandatorily provide that the Court before directing arrest of such accused who has already been granted bail must necessary cancel his earlier bail. A discretion has been given to the Court to pass such orders to direct for such person be arrested and commit him to the custody which direction may be with an order for cancellation of earlier bail or permission to arrest such accused due to addition of graver and non- cognizable offences. Two Judge Bench judgment in Mithabhai Pashabhai Patel (supra) uses the word ‘ordinarily’ in paragraph 18 of the judgment which cannot be read as that mandatorily bail earlier granted to the accused has to be cancelled before Investigating Officer to arrest him due to addition of graver and non-cognizable offences.

********* ******** ********

27. Relying on the above said order, learned counsel for the appellant submits that respondent State ought to get first the order dated 10.03.2016 granting bail to appellant cancelled before seeking custody of the appellant. It may be true that by mere addition of an offence in a criminal
case, in which accused is bailed out, investigating authorities itself may not proceed to arrest the accused and need to obtain an order from the Court, which has released the accused on the bail. It is also open for the accused, who is already on bail and with regard to whom serious offences have been added to apply for bail in respect of new offences added and the Court after applying the mind may either refuse the bail or grant the bail with regard to new offences. In a case, bail application of the accused for newly added offences is rejected, the accused can very well be arrested. In all cases, where accused is bailed out under orders of the Court and new offences are added including offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the Court before granting permission to arrest an accused on the basis of new offences. The power under Sections 437 (5) and 439 (2) are wide powers granted to the court by the Legislature under which Court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to earlier offences. Sections 437 (5) and 439 (2) cannot be read into restricted manner that order for arresting the accused and commit him to custody can only be passed by the Court after cancelling the earlier bail.

28. Coming back to the present case, the appellant was already into jail custody with regard to another case and the investigating agency applied before Special Judge, NIA Court to grant production warrant to produce the accused before the Court. The Special Judge having accepted the prayer of grant of production warrant, the accused was produced before the Court on 26.06.2018 and remanded to custody. Thus, in the present case, production of the accused was with the permission of the Court. Thus, the present is not a case where investigating agency itself has taken into custody the appellant after addition of new offences rather accused was produced in the Court in pursuance of production warrant obtained from the Court by the investigating agency. We, thus do not find any error in the procedure which was adopted by the Special Judge, NIA Court with regard to production of appellant before the Court. In the facts of the present case, it was not necessary for the Special Judge to pass an order cancelling the bail dated 10.03.2016 granted to the appellant before permitting the accused appellant to be produced before it or remanding him to the judicial custody.

29. In view of the foregoing discussions, we arrive at following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:-

(i) The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested.

(ii) The investigating agency can seek order from the court under Sections 437 (5) or 439 (2) for arrest of the accused and his custody.

 (iii) The Court, in exercise of power under Sections 437 (5) or 439 (2) of Cr.PC., can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The Court in exercise of power under Sections 437 (5) as well as 439 (2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with order of cancelling of earlier bail.

(iv) In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the Court which had granted the bail.”

73. Earlier, in the decision reported as Dolat Ram v State of Haryana44 this court had observed that “bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.”

74. This decision was followed, and its ratio applied, in Hazari Lal Das v State of West Bengal & Anr45. The decision in Bhadresh Bipinbhai Sheth v. State of Gujarat46 stated, after culling out the principles in Mhetre, as follows:

“25.6. 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.

25.7. In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory 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.

25.8. 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 CrPC should also be exercised with caution and prudence. It is 1995 (1) SCC 349 2009 (10) SCC 652 2016 (1) SCC 152
 unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. 25.9. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of the anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.”

75. The three-judge decision in Sudhir v. Maharastra47 noticed the decision in Bipin Bhadresh Sheth (supra) and did not disapprove it. However, the court did not grant relief, given that anticipatory bail was declined initially, and the application to the High Court was withdrawn, after which a second anticipatory bail was granted. The High Court cancelled the grant of relief. This court affirmed the High Court’s view. In that judgment, Bipin Bhadresh Sheth was noticed, while considering the scope of the power under Section 439 (2). In another decision, Arvind Tiwary v. State of Bihar48 the issue was whether the anticipatory bail, granted subject to certain conditions, earlier, which had been considered by this court, could be cancelled. The conditions included, inter alia, that sums were to be secured by bank guarantee. The aggrieved corporation directed that the “defalcated sum” specified in respect of every accused should be secured through such guarantee. Upon failure to comply with that demand, an order of cancellation was sought. This court held that cancellation could not be resorted to on the assumption that the applicants were guilty. Similarly, in Mahant Chand Yogi v. State of Haryana,49 Padmakar Tukaam Bhavnagare v. State of Maharastra,50 X v. State of Telangana, 51 and several other judgments the same views were expressed.

76. Therefore, unless circumstances to the contrary: in the form of behaviour of the accused suggestive of his fleeing from justice, or evading the authority or jurisdiction 2016 (1) SCC 146 2018 (8) SCC 475 2003 (1) SCC 236 2012 (13) SCC 720 (2018) 16 SCC 511
of the court, or his intimidating witnesses, or trying to intimidate them, or violate any condition imposed while granting anticipatory bail, the law does not require the person to surrender to the court upon summons for trial being served on him. Subject to compliance with the conditions imposed, the anticipatory bail given to a person, can continue till end of the trial. This answers question No. 2 referred to the present Bench.

Conclusions

77. This court answers the reference in the following manner:

(1) Regarding question No. 1, it is held that the protection granted under Section 438 Cr. PC should not always or ordinarily be limited to a fixed period; it should inure in favour of the accused without any restriction as to time. Usual or standard conditions under Section 437 (3) read with Section 438 (2) should be imposed; if there are peculiar features in regard to any crime or offence (such as seriousness or gravity etc.), it is open to the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event or time bound) etc. (2) The second question referred to this court is answered, by holding that the life of an anticipatory bail does not end generally at the time and stage when the accused is summoned by the court, or after framing charges, but can also continue till the end of the trial. However, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.

78. Having regard to the above discussion, it is clarified that the court should keep the following points as guiding principles, in dealing with applications under Section 438, Cr. PC:

(a) As held in Sibbia, when a person apprehends arrest and approaches a court for anticipatory bail, his apprehension (of arrest), has to be based on concrete facts (and not vague or general allegations) relatable a specific offence or particular of offences. Applications for anticipatory bail should
 contain clear and essential facts relating to the offence, and why the applicant reasonably apprehends his or her arrest, as well as his version of the facts. These are important for the court which considering the application, to extent and reasonableness of the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not a necessary condition that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.

(b) The court, before which an application under Section 438, is filed, depending on the seriousness of the threat (of arrest) as a measure of caution, may issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.

(c) Section 438 Cr. PC does not compel or oblige courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While weighing and considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified – and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The necessity to impose other restrictive conditions, would have to be weighed on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.

(d) Courts ought to be generally guided by the considerations such nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while assessing whether to grant anticipatory bail, or refusing it. Whether to grant or not is a matter of discretion; equally whether, and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.

(e) Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial. Also orders of anticipatory bail should not be “blanket” in the sense that it should not enable the accused to commit further offences and claim relief. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.

(f) Orders of anticipatory bail do not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail.

(g) The observations in Sibbia regarding “limited custody” or “deemed custody” to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e. deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that “if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya.”

 (h) It is open to the police or the investigating agency to move the court concerned, which granted anticipatory bail, in the first instance, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. The court – in this context is the court which grants anticipatory bail, in the first instance, according to prevailing authorities.

(i) The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam & Etc. Etc vs Ramprasad Vishwanath Gupta & Anr52; Jai Prakash Singh (supra) State through C.B.I. vs. Amarmani Tripathi53 ). This does not amount to “cancellation” in terms of Section 439 (2), Cr. PC.

(j) The judgment in Mhetre (and other similar decisions) restrictive conditions cannot be imposed at all, at the time of granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin and subsequent decisions (including K.L. Verma, Nirmal Jeet Kaur) which state that such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled.

79. In conclusion, it would be useful to remind oneself that the rights which the citizens cherish deeply, are fundamental- it is not the restrictions that are fundamental. Joseph Story, the great jurist and US Supreme Court judge, remarked that “personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice.”

(2011) 6 SCC 189 (2005) 8 SCC 21

80. The history of our republic – and indeed, the freedom movement has shown how the likelihood of arbitrary arrest and indefinite detention and the lack of safeguards played an important role in rallying the people to demand independence. Witness the Rowlatt Act, the nationwide protests against it, the Jallianwalla Bagh massacre and several other incidents, where the general public were exercising their right to protest but were brutally suppressed and eventually jailed for long. The specter of arbitrary and heavy-handed arrests: too often, to harass and humiliate citizens, and oftentimes, at the interest of powerful individuals (and not to further any meaningful investigation into offences) led to the enactment of Section 438. Despite several Law commission reports and recommendations of several committees and commissions, arbitrary and groundless arrests continue as a pervasive phenomenon. Parliament has not thought it appropriate to curtail the power or discretion of the courts, in granting pre-arrest or anticipatory bail, especially regarding the duration, or till charge sheet is filed, or in serious crimes. Therefore, it would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power: the danger of such an exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years.

81. The reference is hereby answered in the above terms.

Safeguards against extradition of a fugitive criminal in India as per Extradition Act.

What do you mean by Extradition?

The Hon’ble Supreme Court of India has stated “Extradition is the delivery on the part of one state to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and justifiable in the courts of the other state”. It is a subject of International law where one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction over the new law enforcement as a result of any mutual agreement or treaty signed between them.

It is a cooperative law enforcement process between the two jurisdictions and is largely dependent on the arrangements and understanding made between them.

An extradition request for an accused can be initiated in case of under-investigation under trial and convicted criminals. Besides the legal aspects of the process, extradition also involves physical transfer of the custody of the person being extradited of the legal authority of requesting jurisdiction.

Through the process of the extradition, one sovereign jurisdiction typically makes a formal request to another sovereign jurisdiction (requesting state). If the fugitive is found within the territory of the requesting state arrest the fugitive and subject him /her to its extradition process. The process of extradition procedures to which the fugitive will be subjected to and dependent on the law and practice of the requested state.

The consensus in international law is that normally a state does not have any obligation to surrender an alleged criminal to a foreign state because one foreign state because the principle of sovereignty is that every state has legal authority over the people within its borders. Such an absence of international obligation and the desire for the right to demand such criminals from other countries have caused most of the countries to enter such agreements with the other countries.

2. What are Extradition Treaties or Agreements?

Section 2(d) of the Indian Extradition Act 1962 defines an” Extradition Treaty as a Treaty, Arrangement/ Agreement made by India with a foreign state relating to the extradition of fugitive criminals. Traditionally speaking, most of the extradition treaties are bilateral in nature. However, most of them include the following five principles which have been endorsed by many judicial pronouncements.

1. Extradition applies only with respect to offenses clearly stipulated as such in the treaty.

2. The principle of dual criminality requires that the offenses for which the extradition has been sought to be an offense under the national laws of both the jurisdictions under the extradition.

3. The requested country must be satisfied that there is a prima facie case made out against the accused /offender.

4. The extradited person must be preceded against only the offense for which his extradition has been requested.

5. He must be accorded a fair trial taking care of the principles of natural justice

Section 31 of the Act provides the safeguards against extradition of a fugitive criminal. The said section reads as follows:

“31. Restrictions on surrender.― (1) A fugitive criminal shall not be surrendered or returned to a foreign State

(a) if the offence in respect of which his surrender is sought is of a political character or if he proves to the satisfaction of the magistrate or court before whom he may be produced or of the Central Government that the requisition or warrant for his surrender has, in fact, been made with a view to try or punish him for an offence of a political character;

(b) if prosecution for the offence in respect of which his surrender is sought is according to the law of that State barred by time;

(c) unless provision is made by that law of the foreign State or in the extradition treaty with the foreign State that the fugitive criminal shall not be determined or tried in that State for an offence other than–

(i) the extradition offence in relation to which he is to be surrendered or returned;

(ii) any lesser offence disclosed by the facts proved for the purposes of securing his surrender or return other than an offence in relation to which an order for his surrender or return could not be lawfully made; or

(iii) the offence in respect of which the Central Government has given its consent;

(d) if he has been accused of some offence in India, not being the offence for which his surrender or return is sought, or is undergoing sentence under any conviction in India until after he has been discharged, whether by acquittal or on expiration of his sentence or otherwise;

(e) until after the expiration of fifteen days from the date of his being committed to prison by the magistrate. (2) For the purposes of sub-section (1), the offence specified in the Schedule shall not be regarded as offences of a political character.

(3) The Central Government having regard to the extradition treaty made by India with any foreign State may, by notified order, add or omit any offence from the list given in the Schedule.”

49. Section 34B which falls in Chapter-V provides for provisional arrest. The same reads as follows:

“34B. Provisional arrest. (1) On receipt of an urgent request from a foreign State for the immediate arrest of a fugitive criminal, the Central Government may request the Magistrate having competent jurisdiction to issue a provisional warrant for the arrest of such fugitive criminal.

(2) A fugitive criminal arrested under sub-section (1) shall be discharged upon the expiration of sixty days from the date of his arrest if no request for his surrender or return is received within the said period.”

50. Section 35 provides that every notified order made or notification issued under the Act shall as soon as may be after it is made or issued, be laid before each House of Parliament.

51. Section 36 contains the rule making power of the Central Government to carry out the purpose of the Act. Section 36(2) without prejudice to the generality of the rule making power contained in sub-Section(1), particularises the matters in respect whereof rules may be made. Section 37 is the repeal and saving provision.

52. The Schedule to the Act referred to in Section 31(2) enlists the offences which are not to be regarded as offences of Political Character.

53. Extradition of a fugitive criminal to a Foreign State is an executive decision of the State, taken in exercise of the Sovereign Power of the State. Extradition is the surrender of a criminal fugitive by one State to another in which the criminal fugitive is liable to be punished, or has been convicted. When a requisition for surrender of a fugitive criminal is received from a Foreign State – whether or not it is a Treaty State, the rights of the fugitive criminal to be subjected to a Magisterial inquiry are preserved, wherein the Magistrate shall examine, inter-alia, whether the fugitive criminal is accused or convicted of an offence of a political character, and whether the offence is, or is not, an extradition offence. He shall conduct the inquiry in terms of Section 7 and 31 of the Act. The law of extradition is based on the broad principle that it is in the interests of all nations that crimes recognized as such by the civilized world should not go unpunished (See, Definition contained in Delhi High Court Rules, Volume III Chapter 16 : Extradition and Foreign Jurisdiction (Criminal Courts)). Extradition of A fugitive criminal may be undertaken in pursuance of a signed and ratified treaty, or even when such a treaty does not exist. The signing of an extradition treaty, or any other treaty between two or more sovereign nation States is an executive act, whereas, the act of ratification i.e., implementation of such a treaty, is a legislative function. It is the municipal law of the State which lays down the procedure to be followed, inter alia, for the purpose of conduct of the inquiry. The Act is that municipal law in India. The purpose of such an inquiry – which is not a trial, is not to decide the innocence or guilt of the fugitive criminal. The main purpose of the enquiry is to determine whether there is a prima facie case, or reasonable ground which warrants the fugitive criminal being sent to the demanding State. Merely because the Act provides for issuance of warrant for arrest of the fugitive criminal in respect of whom an Order for conduct of a Magisterial inquiry is issued under Section 6 of the Act, and the criminal fugitive is taken into custody, is no reason to consider the Act – or any provision thereof as a penal statute. The arrest of the fugitive criminal is not punitive. The whole purpose is to apprehend or prevent the further escape of the person – who is accused of certain offences and/ or is convicted and wanted by the requesting State for trial or for undergoing the sentence passed or to be passed. (See Nina Pillai, SMT v. Union of India, 1997 Cr L.J. 2358]

The Extradition Magistrate is not required to go into the merits of the case but only to ascertain the questions as to :

(i) Whether the offence with which the Fugitive Criminal (FC) has been charged is an extradition offence?;

(ii) Whether the documents in support of the extradition have been sent in accordance with the extradition Treaty?; and

(iii) Whether the documents in support of the request indicate the existence of a prima facie case against the FC warranting his extradition to the Requesting State?.

 In the case of Sarabjit Rick Singh vs. Union of India (Supra), the Supreme Court has considered the scope and power of Extradition Magistrate. In para 35 of the report, it was held as under :

’35. In a proceeding for extradition no witness is examined for establishing an allegation made in the requisition of the foreign State. The meaning of the word “evidence” has to be considered keeping in view the tenor of the Act. No formal trial is to be held. Only a report is required to be made. The Act for the aforementioned purposes only confers jurisdiction and powers on the Magistrate which he could have exercised for the purpose of making an order of commitment. Although not very relevant, we may observe that in the Code of Criminal Procedure, 1973, the powers of the committing Magistrate has greatly been reduced. He is now required to look into the entire case through a very narrow hole. Even the power of discharge in the Magistrate at that stage has been taken away.’

In the case of Kamlesh Babulal Aggarwal vs. Union of India & Anr. (Supra), it was held that while holding an inquiry under Section 7 of The Extradition Act, 1962, the Magistrate is entitled to take evidence on all aspects other than as to whether the offence is of political character or not and/or is an extradition offence or not and that the other evidence would be as to the existence of a prima facie case.

20. While dealing with ‘what prima facie means’ and the scope of inquiry under Section 7 of The Extradition Act, 1962, which lays down procedure before the Magistrate, it was further observed as under :-

’12. “Prima facie” has a definite connotation in law. It is defined as “at first sight” or “accepted as so until proved otherwise” or “on face of it”, or “so far as it can be judged from the first disclosure.” The prima facie case will prevail until contradicted and overcome by other evidence. While determining whether a prima facie case has been made out, the relevant consideration is whether on the evidence laid it was possible to arrive at the conclusion in question.

The petitioner, as aforesaid, while referring to the Schtrak case relied upon a passage in the judgment of Lord Reid only. In the judgment of Lord Hodson it is held that committal under the Extradition Act is on the same footing as committal for trial by a Magistrate in an ordinary case.

14. The Division Bench of this Court in Charles Sobhraj case (29) (1986) DLT 410 also held that the entire jurisdiction under the Act vested in the Magistrate is restricted to find out whether there is a prima facie case and that there is no further power vested in the Magistrate. It is perhaps for this reason that the Division Bench of this Court in Nina Pillai case held that the position was fairly well settled.

15. In our opinion, the power of the Magistrate in conducting an inquiry under Section 7 of the Act is akin to framing of the charge under Section 228 of the Code of Criminal Procedure, 1973. At the stage of the framing of charge even a strong suspicion founded upon material and presumptive opinion would enable the court in framing a charge against the accused. At that stage, the court possess wider discretion in the exercise of which it can determine the question whether the material on record is such on the basis of which a conviction can be said reasonably to be possible. The requirement of Section 228 also is of a prima facie case. Sufficiency of evidence resulting into conviction is not to be seen at that stage and which will be seen by the trial court. At that stage meticulous consideration of materials is uncalled for. The persons who are not examined by the original investigating agency may be examined by another investigating agency to make the investigation more effective. The materials so obtained could also be used at trial. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further, then a charge has to be framed. The sifting of evidence at this stage is permissible only for a limited purpose to find out a prima facie case but the court cannot decide at this stage that the witness is reliable or not. At the stage of framing of charge, evidence is not to be weighed. The court is not to hold an elaborate inquiry at that stage.

16. Section 7 (3) and (4) of the Act in fact require a prima facie case only “in support of requisition”. Reading the said provision Along with Section 29, we feel that the ambit of inquiry under Section 7 is in fact narrower than Section 228 CrPC and is limited to find that the fugitive is not being targeted for extraneous reasons.

17. This, according to us, is the test to be applied in conducting an inquiry under Section 7 of the Act and this is the ambit and scope of the inquiry and no more.

18. The counsel for the respondent has, besides relying upon Nina Pillai case and Darshan Kumar case also relied upon Sarabjit ‘Rick’ case 2007 (93) DRJ 712 and Maninder Pal Singh Kohli case

Criminal Lawyer in Delhi High Court & Supreme Court.

V.K.Singh Advocate

(at Supreme Court of India)

Mr.  V .K.Singh is the founder member  of the firm, Leges Juris Associates. (Law Offices). He has the vide expertise over the matters related to Civil & Commercial Disputes, Family and Matrimonial Disputes, Consumer Disputes and Recovery of Debts for Banking & Financial Institutions and Alternate Dispute Resolution. He is known for his self developed and distinguished negotiation skills, extempore arguments. His experience covers a wide range of litigations, legal consultancy and arbitrations. He possesses superb drafting skill, well acclaimed consummate and effective argumentation skill and unparallel client counseling skill.

Criminal Practice Experience.

Mr.Singh has vast knowledge in Criminal Practice and advised, drafted and contested the matters of his respective clients in Bail Matters ,Dowry Cases, Narcotic Drug Cases (NDPS Cases),Criminal Trial ,Rape Cases or Sexual Harassment Cases, Fraud Cases ,Cheating Cases,EOW Cases, Anti corruption Cases, Criminal Writ Petition, Criminal Revision ,Criminal Appeal, Criminal SLP etc. .in  Hon’ble Supreme Court of India ,High Courts and all District Courts in India.

Contact detail : Adv. V.K.Singh

Mobile: 9811645002 

Email: lawofficevksingh@gmail.com

website: www.legesjurisassociates.com

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Criminal Proceeding Can be Quashed at any stage after Invoking Power u/s 482 of Cr.P.C if  settlement arrived between the Parties even after conviction/Punishment.

 In the Matter of Soban vs State of kerla in Crl. Appeal No.1587/2006, The Hon’ble Kerla High Court held that :- ( only for Information)

The decision of the Apex Court in Nikhil Merchant (supra) where relying upon the decision in Joshi (supra), the Apex Court took note of the settlement arrived at between the parties and  quashed the criminal proceedings for the offence punishable under Sections 420, 467, 468 and 471 r/w 120B of I.P.C. and held that since the criminal proceedings had the overtone of a civil dispute which have been amicably settled between the parties, it was a fit case where technicality should not be allowed to stand in the way of quashing of the criminal proceedings since the continuance of the same after the compromise arrived at between the parties would be a futile exercise. In Manoj Sharma (supra) also, the Supreme Court took the view that once the disputes are settled between the parties amicably, High Court cannot refuse to exercise the jurisdiction either u/s 482 or under Article 226 of the Constitution of India to quash the criminal proceedings even if the offence involved is non-compoundable.

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6.Section 320 is the only statutory provision in Cr.P.C. for compounding an offence and classifies the offences which are simply compoundable and compoundable with permission of the Court [Ss.320(1) and 320(2)]. The law makers never thought of incorporating any specific provision in Cr.P.C. for compounding of offence other than the offences mentioned in Ss.320(1) and 320(2). However, through judicial intervention, the Apex Court found a solution in cases where accusations are non-bailable and non-compoundable holding that recourse to inherent powers u/s 482 would be permissible even in non-compoundable offences for- quashing an FIR and/or criminal proceedings and the said power is not controlled or moderated by Section 320 of Cr.P.C

 7. The contentious issue as regards the scope of power exercisable under Section 482 of Cr.P.C. when a prayer is made for quashing criminal proceedings involving non-compoundable offences on account of settlement between the parties came up for consideration before the Apex Court initially in Joshi’s case (supra). Describing the scope of inherent powers, it was held that S.320 of Cr.P.C does not limit or control exercise of powers vested in the Court u/s 482 of Cr.P.C. and the Court would have the power to quash criminal proceedings or an FIR under the exercise of powers u/s 482 even if the offence was non-compoundable u/s 320 of Cr.P.C. The Court drew distinction between compounding an offence as permitted u/s 320 of Cr.P.C and quashing of the complaint or criminal proceedings u/s 482 of Cr.P.C. as also Article 226 of the Constitution of India and held that the powers of the High Court u/s 482 of Cr.P.C to quash criminal proceedings or FIR were not circumscribed by S.20 of Cr.P.C. To the same effect is the decision of the Apex Court in Nikhil Merchant (supra) where relying upon the decision in Joshi (supra), the Apex Court took note of the settlement arrived at between the parties and  quashed the criminal proceedings for the offence punishable under Sections 420, 467, 468 and 471 r/w 120B of I.P.C. and held that since the criminal proceedings had the overtone of a civil dispute which have been amicably settled between the parties, it was a fit case where technicality should not be allowed to stand in the way of quashing of the criminal proceedings since the continuance of the same after the compromise arrived at between the parties would be a futile exercise. In Manoj Sharma (supra) also, the Supreme Court took the view that once the disputes are settled between the parties amicably, High Court cannot refuse to exercise the jurisdiction either u/s 482 or under Article 226 of the Constitution of India to quash the criminal proceedings even if the offence involved is non-compoundable. In Gian Singh v. State of Punjab (2010 (4) KLT 755), the two Judge Bench of the Apex Court doubted the correctness of the above three decisions and referred the question as regards the permissibility of indirectly permitting compounding of noncompoundable offences recoursing to S.482 of Cr.P.C. to a Larger Bench of the Apex Court. Finally the issue was settled by a three Judge Bench of the Apex Court in Gian Singh v. State of Punjab [2012 (4) KLT 108 (SC)]. The Apex Court explaining that the High Court has inherent power u/s 482 of Cr.P.C with no statutory limitation including S.320 of Cr.P.C. has held that these powers are to be exercised to secure the ends of justice or to prevent abuse of process of any Court and these powers can be exercised to quash criminal proceedings or complaint or FIR in appropriate cases where offender and victim have settled their dispute. However, it is also observed that the Court must have due regard to the nature and gravity of the crime and criminal proceedings in heinous and serious offences or offences like murder, rape and dacoity etc., should not be quashed despite victim or victim’s family have settled the dispute with offender. The jurisdiction vested in High Court u/s 482 of Cr.P.C was held to be exercisable for quashing criminal proceedings in cases having overwhelming and predominantly civil flavour particularly offences arising from commercial, financial, mercantile, civil partnership or such like transaction, or even offences arising out of matrimony relating to dowry etc., family dispute or other such disputes where wrong is basically private or personal nature where parties mutually resolve their dispute amicably. It was also held that no category or cases for this purpose could be prescribed and each case has to be dealt with on its own merit. Later, in Narinder Singh and Others v. State of Punjab and Others [(2014) 6 SCC 466] and also in State of Madhya Pradesh v. Laxmi Narayan and Others [(2019) 5 SCC 688], the Apex Court has summed up and laid down principles by which the High Court would be guided in adequate treatment to the settlement between the parties and exercise its power u/s 482 of Cr.P.C. while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with criminal proceedings. From the law enunciated in the above decisions, it is explicit and clear that the power of the High Court u/s 482 of Cr.P.C is not inhibited by the provisions of S.320 of Cr.P.C and FIR as well as criminal proceedings can be quashed by exercising inherent powers u/s 482 of Cr.P.C if it is warranted in the given facts and circumstances of the case or ends of justice or to prevent abuse of process of any Court, even in those cases which are non-compoundable where the parties have settled the matter between themselves.

 8. The decisions in Gian Singh (supra), Narinder Singh (supra) and Laxmi Narayan (supra) do not deal with situation arising out of the prayer for quashing criminal proceedings after conviction for a non-compoundable offence. The ratio of those  decisions was in the context of settlement of dispute before conviction. The crucial question is whether analogy applied therein could be extended to cases after conviction of the accused.

 9. The Division Bench of the Punjab and Haryana High Court in Sube Singh and Others v. State of Haryana and Others [(2014) 2 Crimes 299] had considered the question on a reference made to it as to whether criminal proceedings could be quashed by the High Court in exercise of power u/s 482 of Cr.P.C. even when the accused was found guilty and convicted by the trial Court. The question was answered by holding that the power u/s 482 of Cr.P.C was wide enough to quash proceedings in relation to non-compoundable offence notwithstanding the bar u/s 320 of Cr.P.C. and such power could be exercised at any stage of the proceedings. The Full Bench of the Bombay High Court in Abasaheb Yadav Honmane and Others v. The State of Maharashtra (2008 (2) Mh.L.J 856) has also held that power to compound can be exercised at the trial stage or even at the appellate stage subject to the satisfaction of the conditions postulated by the legislature u/s 320 of Cr.P.C. However, the Full Bench of the Bombay High Court (Nagpur Branch) recently in Maya Sanjay Khandare and Another v. State of Maharashtra (APL No.709/2020 dt. 05/01/2021) has held that it is only in rarest of rare cases that High Court may, in exercise of its inherent powers u/s 482 of Cr.P.C. quash criminal proceedings relating to non-compoundable offence based on settlement between the parties after conviction. In Renjith v. State of Kerala (2019 KHC 5647), this Court took the view that even at the revisional stage, proceedings against the accused for committing a non-compoundable offence can be quashed invoking inherent power u/s 482 of Cr.P.C. In Biju Eappen (supra), this Court acquitted the accused after conviction accepting the compromise at the appellate stage. The Supreme Court in Bitan Sen-Gupta and Another v. State of West Bengal and Another (2018) 18 SCC 366] held that considering the wide amplitude of the powers u/s 482 of Cr.P.C, the same could be exercised for quashing the criminal proceedings postconviction when the convict and the victim had arrived at a settlement.

10. It is settled that the plenary power possessed by the High Court u/s 482 of Cr.P.C. are very wide, though to be exercised sparingly and with circumspection. It is equally settled that the said power could be exercised irrespective of the nature of the proceedings and concurrently with appellate or revisional jurisdiction. Criminal proceedings commence from the lodging of FIR and would continue till the order of conviction, if passed, attains finality. When the order of conviction by the trial Court is under challenge before the appellate or revisional Court, it cannot be said that the order of conviction did attain finality. The presumption of innocence would continue till the order of conviction attains finality despite the conviction by the trial Court. An appeal challenging the order of conviction has the effect of continuation of trial itself. Since the power u/s 482 of Cr.P.C. is not controlled by S.320, such power could be exercised at any stage of the criminal proceedings including at the appellate or revisional stage. The section does not contemplate or specify any particular stage when the powers u/s 482 could be invoked. S.320 also does not contemplate any stage or specific mode by which Court can permit compounding of the offences. Subsections (5) and (6) of S.320 permit composition of the offences even during appellate or revisional stage. Thus, there is no reason whatsoever to restrict exercise of powers u/s 482 of Cr.P.C. only to cases where an order of conviction was not passed. inherent power u/s 482 for quashing criminal proceedings being of a wide magnitude for being exercised with the object of securing the ends of justice, there cannot be limitation on such powers for being exercised only prior to conviction of an accused. Merely because the order of conviction was pending adjudication at the appellate or revisional stage, the same could not be a ground for refusing to exercise powers u/s 482 of Cr.P.C. to quash the criminal proceedings especially when the parties to the dispute had arrived at a settlement. Hence, I hold that if requirements of S.482 of Cr.P.C were satisfied in the sense that it was necessary to prevent abuse of the process of any Court or to secure the ends of justice, the criminal proceedings involving non-compoundable offence could be quashed notwithstanding the fact that the order of conviction was already passed against the accused provided offence in question does not fall in the category of offences prohibited for compounding in terms of the pronouncement of the Apex Court in Gian Singh (supra), Narinder Singh (supra) and Laxmi Narayan (supra).

 11. Coming to the facts of the present case, even though offences alleged against the accused were under Sections 143, 147, 149, 326, 307 r/w 149 of I.P.C., the appellant was found guilty only u/s 326 of the I.P.C. Paragraph 22 of the impugned judgment reads that accused was only 22 years old as on the date of the incident and no previous conviction has been proved against him. It is observed that he is the only bread winner of his family. In the affidavit sworn in by the victim, it is stated that the incident was the result of some misunderstanding due to political animosity and that the entire dispute has been settled. This Court gave a direction to SHO, Vadakkekkara Police Station to enquire with the defacto complainant as to the genuineness of the affidavit and settlement and to file a report. Accordingly, the SHO has filed a report stating that the subject matter of the dispute has been amicably settled between the parties. The police has also recorded the statement of the victim which has also been produced. The offence for which the appellant was convicted does not involve offence of mental depravity or of heinous nature like rape, dacoity or murder. It does not fall in the category of offences termed to be prohibited in the pronouncements of Apex Court to be compounded exercising power u/s 482 of Cr.P.C. The dispute appears to be personal in nature and the victim is no more interested in carrying on with the criminal proceedings.

12. In Madan Mohan Abbot v. State of Punjab [(2008) 4 SCC 582], the Apex Court emphasised and observed that in the matter of compromise in criminal proceedings, keeping in view of the nature of the case, to save the time of the Court for utilizing to decide more effective and meaningful litigation, a commonsense approach, based on ground realities and bereft of the technicalities of law, should be applied. It was observed that in disputes where the question involved is of purely personal nature, Courts should ordinarily accept the terms of compromise. The three Judge Bench of the Apex Court in Social Action Forum for Manav Adhikar and Another v. Union of India, Ministry of Law and Justice and Others [(2018) 10 SCC 443] has held that if a settlement is arrived at, the parties can approach the High Court u/s 482 of Cr.P.C and the High Court, keeping in view the law laid down in Gian Singh (supra) shall dispose of the same.

 13. Keeping in view of the nature and gravity of the offence, ratio laid down by the Apex Court and considering the facts and circumstances of the case in its entirety, I am of the view that Crl.M.A.No.1/2021 deserves to be allowed in view of the compromise arrived at between the parties for the ends of  justice. In the result, Crl.M.A.No.1/2021 is allowed. The entire proceedings initiated in terms of Crime No. 179/2003 of Vadakkekkara Police Station is quashed. The conviction and sentence of the appellant vide the impugned judgment are set aside. The Crl.Appeal stands disposed of in the aforesaid terms.

Accused released on bail without surety-sureties.

The order reads thus:

“Looking to impediments in arranging sureties because of lockdown, while invoking powers under Article 226 and 227 of the Constitution of India, we deem it appropriate to order that all the accused-applicants whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lockdown may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicants undertakes to furnish required sureties within a period of one month from the date of his/her actual release.”

——————————————————————————————————————————- Read the entire Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD

In Chamber

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 2249 of 2020

Applicant :- Suraj Kumar Singh

Opposite Party :- State of U.P.

Counsel for Applicant :- Brajesh Kumar Singh

Hon’ble Manoj Kumar Gupta,J.

This is second bail application seeking release of applicant on bail in Criminal Case No. 1789 of 2007 (State vs. Surendra Nath Dubey and others) arising out of Case Crime No.35 of 1994 under Sections 420, 467, 468, 406, 409, 411 IPC Police Station Panaki District Kanpur Nagar. The first bail application was rejected by this Court by order dated 21.11.2019 in the absence of counsel for the applicant by recording that either the trial had concluded or the applicant had lost interest in the matter.

The instant bail application has been filed wherein it is stated that trial is still pending. It is stated that initially the first bail application was filed through Sri M.N. Singh Advocate but lateron the applicant changed his counsel and engaged Sri B.K. Singh advocate. The mother of Sri B. K. Singh advocate had expired on 20.11.2019 on account of which the clerk could not mark the case in the cause list resulting in its rejection on 21.11.2019. It is thus not in dispute that the bail application was not rejected on merit but for non prosecution.

The allegation in the first information report is that 50 bundle of Janta Dhoti was taken out from godown of UPIKA for being sold in market in collusion with the employees of UPIKA and NCCF. The allegation against the applicant in the first information report is that the transaction got materialised through the applicant who is an employee of NCCF.

The submission is that there was no independent eye witness; that the applicant was falsely implicated; that initially the applicant was granted bail in the matter and he was duly appearing before the court on every date; since he was a resident of Aurangabad (Bihar) he was facing extreme difficulty in attending the court on each date; he filed application on 1.10.2019 for exemption of his personal appearance; the said application was allowed on 1.10.2019 itself; thereafter, the case was listed on 5.1.2000 on which date, counsel for the applicant could not appear as a result of which non bailable warrant was issued. The applicant challenged non bailable warrant before this Court by filing Criminal Misc. Application No.4420 of 2019 which was disposed of by order dated 7.2.2019. In pursuance of aforesaid order of this Court, the applicant surrendered before the trial court and moved bail application, but which was rejected. Learned counsel for the applicant states that the applicant has given specific undertaking in paragraph 28 of the affidavit filed in support of earlier bail application and the said undertaking is being reiterated once again that the applicant would appear on each and every date before the trial court and will not seek any unnecessary adjournment if enlarged on bail as he is languishing in jail since 6.3.2019.

Learned AGA Sri Pankaj Srivastava has opposed the bail application but did not dispute that initially the applicant was on bail but came to be arrested in pursuance of non bailable warrant, subsequent to rejection of his bail application. He submitted that in case of grant of bail, the trial court be directed to expedite the trial.

Having regard to the submissions made but without commenting on merits of the case, I am of the opinion that the applicant is entitled to be enlarged on bail subject to certain conditions.

Let the applicant Suraj Kumar Singh involved in aforesaid case crime be enlarged on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice.

(i) In the facts and circumstances of the case, the trial court is directed to expedite the trial of the case and make serious endeavour to conclude the same, preferably within a period of one year.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

(v) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.

(vii) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

In view of the extraordinary situation prevailing in the State due to Covid-19, the directions of this Court dated 6.4.2020 passed in Public Interest Litigation No. 564 of 2020 (In re vs. State of U.P.), shall also be complied.

The order reads thus:

“Looking to impediments in arranging sureties because of lockdown, while invoking powers under Article 226 and 227 of the Constitution of India, we deem it appropriate to order that all the accused-applicants whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lockdown may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicants undertakes to furnish required sureties within a period of one month from the date of his/her actual release.”

(Manoj Kumar Gupta, J.) Order Date :- 29.5.2020

Bail denied in black marketing of Remdesivir and Favipiravir by Bombay High Court.

In the Matter of : Pravin Sukhraj Jain Vs The State of Mahrastra in ANT. BAIL APPLICATION (ST) NO.2109 OF 2020 held that:-

This will ensure early access of Remdesivir for treatment of severe COVID patients in the country under the Restricted Emergency Use. Favipiravir Tablet has been approved for manufacture and marketing on 19.6.2020.

Both Remdesivir and Favipiravir formulations are required to be sold under the prescription of medical specialists only. Further, Remdesivir formulations are required to be supplied for use only to the hospital institutions to ensure proper use of the drug as recommended. In both the cases, informed consent of the patient or his / her representative in the prescribed form is mandatory before initiating the treatment.” 9 Upon reading these two communications along with the provisions of the Drugs (Prices Control) Order, 2013, it may be stated that these orders were issued to ensure proper supply and distribution of Remdesivir for treatment of patients with severe COVID-19 infection and Favipiravir tablets for mild to moderate COVID-19 infection. Obviously, controlling order and the directions issued by the Shivgan 12-ABAST-2109-2020.odt Drugs Controller General (I), were in spirit of Section 3 of the Essential Commodities Act, 1955. It may be stated that the Drugs Controller General (I) has made it clear that the Central Drugs Standard Control Organization has granted permission to manufacture and market drugs to M/s. CIPLA, M/s. Hetro and M/s. Mylan Laboratory for marketing drugs in the country. These directions were issued to prevent and/or curtail black marketing and over pricing of the drug Remdesivir by certain unscrupulous persons. These directions also ensure, early access of Remdesivir for treatment of severe Covid patients in the country under the restricted emergency use only on prescription by Doctors/Hospital.

 Material on record prima-facie suggests, co- accused, who were found in possession of the drugs, Remdesivir, Actemra, was in contravention or in breach of Drugs (Prices Control) Order, 2013 and further suggest, they were black-marketing and over-pricing these drugs. Shivgan 12-ABAST-2109-2020.odt 11 So far as the present applicant is concerned, it may be stated that soon after his name was disclosed by the co-accused, he was not traceable and his whereabouts were not known. In fact, his establishment/shop was found closed. However, as stated, shop was sealed temporarily for the purpose stated in the notice pasted on his shop. Learned counsel for applicant would urge that applicant has no business to deal in prohibited Remdesivir drug and he had not sold drug to the co-accused, Mr. Das. It appears from his submission that Mr. Das in past was his partner but for years he had no business dealings with him. But learned counsel would also urge that Mr. Das owes applicant a substantial amount, a debt, arising from transaction between applicant’s frm and Mr. Das. It may also be stated that since after shop of the applicant is sealed, he is not available for interrogation. Though he was directed to report to the Investigating Ofcer, he did not report and co-operate in the investigation. He ventured to Shivgan 12-ABAST-2109-2020.odt send one Mr. Bhanushali to the police station. Therefore, it is a clear case of non-co-operation in the investigation. Though, it is contended that applicant has no connection with Mr. Das, however, Call Detail Records produced by the prosecution for perusal indeed makes it clear that applicant was in constant touch with co-accused Mr. Das. Prima-facie, material on record, suggests applicant’s complicity in subject crime.

“26. Control of sales prices of formulations.- No person shall sell any formulation to any consumer at a price exceeding the price specifed in the current price list or price indicated on the label of the container or pack thereof, whichever is less.”

 Besides, learned Senior Counsel has also brought to my notice and placed on record communication dated 6th July, 2020 issued by the Drug Controller General (I). This letter reads as under:

Ministry of Health & Family Welfare Directorate General of Health Services Central Drugs Standard Control Organization (Enforcement Division) FDA Bhawan, Kotla Road New Delhi-110002 E-mail: dci@nic.in Dated:- 6/7/2020.

To, . All States/UT Drugs Controller, Subject:- Immediate enforcement needed to stop the sale of COVID-19 drug Remdesivir above MRP-reg.

Sir, Considering the emergency and unmet medical need for Covid-19 disease, CDSCO has approved Restricted Emergency Use of Remdesivir injectable formulation for treatment of patients with severe Covid-19 infection subject to various conditions and restrictions.

 Initially, Remdesivir formulation of the innovator was approved on 01.06.2020 for import and marketing the drug in the country. However, the importer is yet to import the drug after taking import licence from CDSCO. Subsequently, CDSCO has granted permission to manufacture and market the drug to M/s. Cipla, M/s. Hetro and M/s. Mylan Laboratory for same indication, conditions and restrictions.

There is no bar to the Police Ofcer, however, to investigate and prosecute the person where he has committed an ofence, as stated under Section 32(3) of the Act, i.e., if he has committed any cognizable ofence under any other law. III. Having regard to the scheme of the CrPC and also the mandate of Section 32 of the Act and on a conspectus of powers which are available with the Drugs Inspector under the Act and also his duties, a Police Ofcer cannot register a FIR under Section 154 of the CrPC, in regard to cognizable ofences under Chapter IV of the Act and he cannot investigate such ofences under the provisions of the CrPC.

IV. Having regard to the provisions of Section 22(1)(d) of the Act, we hold that an arrest can be made by the Drugs Inspector in regard to cognizable ofences falling under Chapter IV of the Act without any warrant and otherwise treating it as a cognizable ofence. He is, however, bound by the law as laid down in D.K. Basu (supra) and to follow the provisions of CrPC.

V. It would appear that on the understanding that the Police Ofcer can register a FIR, there are many cases where FIRs have been registered in regard to cognizable ofences falling under Chapter IV of the Act. We fnd substance in the stand taken by learned Amicus Curiae and direct that they should be made over to the Drugs Inspectors, if not already made over, and it is for the Drugs Inspector to take action on the same in accordance with the law. We must record that we are resorting to our power under Article 142 of the Constitution of India in this regard. VI. Further, we would be inclined to believe that in a number of cases on the understanding of the law relating to the power of arrest as, in fact, evidenced by the facts of the present case, police ofcers would have made arrests in regard to ofences under Chapter IV of the Act. Therefore, in regard to the power of arrest, we make it clear that our decision that Police Ofcers do not have power to arrest in respect of cognizable ofences under Chapter IV of the Act, will operate with efect from the date of this Judgment. VII. We further direct that the Drugs Inspectors, who carry out the arrest, must not only report the arrests, as provided in Section 58 of the CrPC, but also immediately report the arrests to their superior Ofcers.

Thus, taking into consideration facts of the case and conduct of the applicant, in my view, prosecution cannot be denied applicant’s custody for investigation. In my view, no case is made out for granting pre-arrest bail. It may also be stated that ofences under the Essential Commodities Act, 1955 are cognizable. Besides, Section 10(c) presumes ‘culpable state of mind’. Thus, in view of the material on record, application is rejected. Shivgan 12-ABAST-2109-2020.odt 13 At this stage, learned counsel for applicant, on instructions makes a statement that, applicant shall surrender to the police on 1st October, 2020 at 11.00 a.m. Statement is accepted.

No Arrests where punishment is upto seven years as per judgment of Arnesh Kumar, HPCs Should Release All Prisoners Who Were Released Earlier,Supreme Court given Directions To De-Congest Prisons.

In the matter of : Suo Motu Writ Petition (C)  No.01/2021, The Hon”ble Supreme Court held that :-

As a first measure, this Court, being the sentinel on the quivive of the fundamental rights, needs to strictly control andlimit the authorities from arresting accused in contraventionof guidelines laid down by this Court in Arnesh Kumar v. State of Bihar (supra) during pandemic. It may be relevant to quote the same:

11.   Our   endeavour   in   this   judgment   is   to ensure   that   police   officers   do   not   arrest the accused unnecessarily and Magistrate do not   authorise   detention   casually   and mechanically.   In   order   to   ensure   what   we 11 have observed above, we give the following directions: 11.1. All the State Governments to instruct its   police   officers   not   to   automatically arrest when a case under Section 498­A IPC is   registered   but   to   satisfy   themselves about   the   necessity   for   arrest   under   the parameters   laid   down   above   flowing   from Section 41 CrPC.

 11.2. All police officers be provided with a check list containing specified sub­clauses under Section 41(1)(b)(ii)

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

11.4.   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;

 11.5. 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;

11.6.   Notice   of   appearance   in   terms   of Section 41­A CrPC 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;

11.7. 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   the   High   Court having territorial jurisdiction.

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

12.   We   hasten   to   add   that   the   directions aforesaid shall not only apply to the cases under Section 498­A IPC 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.

10. Second,   the   rapid   proliferation   of   the   virus   amongst   the inmates of congested prisons is a matter of serious concern. The   High­ Powered   Committees   constituted   by   the   State Governments/Union   Territories   shall   consider   release   of prisoners by adopting the guidelines (such as inter alia, SOP laid   down   by   NALSA)   followed   by   them   last   year,   at   the earliest. Such of those States which have not constituted High 13 Powered   Committees   last   year   are   directed   to   do   so immediately.     Commissioner   of   Police   Delhi   shall   also   be   a member of the High­Powered Committee, Delhi. 

  11. Third, due to the immediate concern of the raging pandemic, this court has to address the issue of de­congestion. We find merit in the submission of Mr. Colin Gonsalves, learned Senior Counsel appearing on behalf of the applicant, that the HighPowered Committee, in addition to considering fresh release, should forthwith release all the inmates who had been released earlier   pursuant   to   our   order   23.03.2020,   by   imposing appropriate conditions. Such an exercise is mandated in order to save valuable time.

12. Fourth, further we direct that, those inmates who were granted parole,   pursuant   to   our   earlier   orders,   should   be   again granted a parole for a period of 90 days in order to tide over the pandemic.

13. Fifth, the fight against the pandemic is greatly benefitted by transparent administration. In this regard, our attention was drawn   to   example   of   Delhi,   wherein   the   prison   occupancy   is updated   in   websites.   Such   measures   are   required   to   be considered   by   other   States   and   should   be   adopted   as   good practice.   Moreover,   all   the   decisions   of   High ­Powered Committees   need   to   be   published   on   respective   State   Legal Service Authorities/State Governments/High Courts websites in order to enable effective dissemination of information.

14. Overcrowding   of   prisons   is   a   phenomenon,   plaguing   several countries including India. Some prisoners might not be willing to be released in view of their social background and the fear of becoming victims of the deadly virus. In such extraordinary cases, the authorities are directed to be considerate to the concerns   of   the   inmates.   The   authorities   are   directed   to ensure   that   proper   medical   facilities   are   provided   to   all prisoners   who   are   imprisoned.  The   spread   of   Covid­19   virus should be controlled in the prisons by regular testing being done of the prisoners but also the jail staff and immediate treatment   should   be   made   available   to   the   inmates   and   the staff. It is necessary to maintain levels of daily hygiene and sanitation required to be improved. Suitable precautions shall be   taken   to   prevent   the   transmission   of   the   deadly   virus amongst   the   inmates   of   prisons.   Appropriate   steps   shall   be taken   for   transportation   of   the   released   inmates   of   the prisons, if necessary, in view of the curfews and lockdown in some States.   “

Private vehicles not ‘public place’ under Section 42 of NDPS Act: Supreme Court.

The decision of this Court in Karnail Singh as followed in Jagraj Singh alias Hansa is absolutely clear. Total non-compliance of Section 42 is impermissible. The rigor of Section 42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh but in no case, total non-compliance of Section 42 can be accepted.

In the circumstances, the Hon”ble Supreme courts held that in the matter of  Boota Singh vs State of Haryana that the Punjab and Haryana High Court fell in error in rejecting the submissions advanced on behalf of the appellants. therefore, allow the appeal, set-aside the view taken by the High Court and acquit the appellants of the charge levelled against them. The appellants be released forthwith unless their custody is required in connection with any other offence.


Section 42 in The Narcotic Drugs and Psychotropic Substances Act, 1985

1[42. Power of entry, search, seizure and arrest without warrant or authorisation.—

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,—

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.]

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In Karnail Singh 1 , the Constitution Bench of this Court concluded:-

 “35. In conclusion, what is to be noticed is that Abdul Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham [(2001) 6 SCC 692 : 2001 SCC (Cri) 1217] hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:

(a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).

 (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

 (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency

. (d) While total non-compliance with requirements of subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.” (Emphasis added)

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Boota Singh Vs State of Haryana , Judgement by Supreme Court of India.

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.421 OF 2021

BOOTA SINGH & OTHERS …Appellants

Versus

STATE OF HARYANA …Respondent