Sundeep Kumar Bafna vs State of Maharashtra
All Courts in the Country, including High Courts should be extremely careful and circumspect in concluding a judgment of the Supreme Court to be per incuriam; SC
The Code Of Criminal
Procedure, 1973: Section 46, Section 82, Section 154, Section 156, Section 157,
Section 167, Section 167(2), Section 173, Section 190, Section 202, Section 225,
Section 288, 304, Section 308, Section 336, Section 388, Section 436, Section
437, Section 437(1), Section 438, Section 438(1), Section 439, Section 446A, Section
450, Section 482
The Code Of Criminal
Procedure (Amendment) Act, 2001
The Indian Evidence
Act, 1872: Section 27
The Indian Penal Code: Section
120B, Section 406, Section 420
The Constitution of
India 1949: Article 21, Article 136
Niranjan Singh &
Anr vs Prabhakar Rajaram Kharote & Ors on 10 March, 1980: Supreme Court of
India
Sunita Devi vs State Of
Bihar And Ors on 6 December, 2004: Supreme Court of India
Rashmi Rekha Thatoi
& Anr vs State Of Orissa & Ors on 4 May, 2012: Supreme Court of India
State Of Haryana And
Ors vs Ch. Bhajan Lal And Ors on 21 November, 1990: Supreme Court of India
Raghubans Dubey vs
State Of Bihar on 19 January, 1967: Supreme Court of India
State Of Haryana & Ors vs Dinesh Kumar on
8 January, 2008: Supreme Court of India
Adri Dharan Das vs
State Of West Bengal on 21 February, 2005: Supreme Court of India
Ranjit Singh & Ors
vs State Of M.P on 27 October, 2010: Supreme Court of India
Thakur Ram vs The State
Of Bihar on 26 November, 1965: Supreme Court of India
Directorate Of
Enforcement vs Deepak Mahajan on 31 January, 1994: Supreme Court of India
Dilawar Singh vs Parvinder Singh @ Iqbal Singh
& Anr on 8 November, 2005: Supreme Court of India
Balkrishna Dhondu Raul
vs Manik Motiram Jagtap And Anr. on 29 March, 2005: Bombay High Court
Sundeep Kumar Bafna vs
State Of Maharashtra & Anr on 27 March, 1947: Supreme Court of India
Chandra Prakash Shahi
vs State Of U.P. & Ors on 25 April, 2000: Supreme Court of India
Shiv Kumar vs Hukam
Chand And Anr on 30 August, 1999: Supreme Court of India
Gurbaksh Singh Sibbia
Etc vs State Of Punjab on 9 April, 1980: Supreme Court of India
Gurcharan Singh &
Ors vs State (Delhi Administration) on 6 December, 1977: Supreme Court of India
State Of U.P. vs Deoman
Upadhyaya on 6 May, 1960: Supreme Court of India
Union Of India &
Anr vs Raghubir Singh (Dead) By Lrs. Etc on 16 May, 1989: Supreme Court of
India
Roshan Beevi And Ors.
vs Joint Secretary To Government Of ... on 9 November, 1983: Madras High Court
Bhagwant Singh vs
Commissioner Of Police, Delhi on 6 May, 1983: Supreme Court of India
P. S. R. Sadhanantham
vs Arunachalam & Anr on 1 February, 1980: Supreme Court of India
Nirmal Jeet Kaur vs The
State Of Madhya Pradesh And Anr on 1 September, 2004: Supreme Court of India
M/S Jk International vs
State, Govt Of Nct Of Delhi And ... on 23 February, 2001: Supreme Court of
India
Balchand Jain vs State
Of Madhya Pradesh on 5 November, 1976: Supreme Court of India
_____________________________________________________________
While dealing with the power of High Court and Sessions Court to entertain an application for regular bail directly, thereby putting an to end to the decades old practice of first filing a regular Bail Application before a Magistrate, as a condition precedent before approaching the Sessions Court or High Court for bail, the Supreme Court has expressed its displeasure in strongest possible words of the way in which the Courts including the High Courts discussing the ratios of the Supreme Court judgements.
While dealing with the power of High Court and Sessions Court to entertain an application for regular bail directly, thereby putting an to end to the decades old practice of first filing a regular Bail Application before a Magistrate, as a condition precedent before approaching the Sessions Court or High Court for bail, the Supreme Court has expressed its displeasure in strongest possible words of the way in which the Courts including the High Courts discussing the ratios of the Supreme Court judgements.
The Court finds that
editorial note in the ‘Supreme Court Reports’(SCR) is misleading and in the
impugned Order before it, the learned
Single Judge appears to have blindly followed the incorrect and certainly
misleading editorial note.
The Court holds (Para –
16), “We must now discuss in detail the decision of a Two-Judge Bench in Rashmi
Rekha Thatoi vs State of Orissa, for the reason that in the impugned Order the
Single Judge of the High Court has proclaimed, which word we used
intentionally, that Niranjan Singh is per incuriam.
The ‘chronology of
cases’ mentioned in Rashmi Rekha elucidates that there is only one judgment
anterior to Niranjan Singh, namely, Balchand Jain vs State of M.P., which along
with the Constitution Bench decision in Gurbaksh Singh Sibbia, intrinsically
concerned itself only with anticipatory bail.
It is necessary to give
a salutary clarion caution to all Courts, including High Courts, to be
extremely careful and circumspect in concluding a judgment of the Supreme Court
to be per incuriam.
In the present case, in
the impugned Order the learned Single Judge appears to have blindly followed
the incorrect and certainly misleading editorial note in the Supreme Court
Reports without taking the trouble of conscientiously apprising himself of the
context in which Rashmi Rekha appears to hold Niranjan Singh per incuriam, and
equally importantly, to which previous judgment.
An earlier judgment
cannot possibly be seen as per incuriam a later judgment as the latter if
numerically stronger only then it would overrule the former.
Rashmi Rekha dealt with
anticipatory bail under Section 438 and only tangentially with Sections 437 and
439 of the CrPC, and while deliberations and observations found in this clutch
of cases may not be circumscribed by the term obiter dicta, it must concede to
any judgment directly on point. In the factual matrix before us, Niranjan Singh
is the precedent of relevance and not Gurbaksh Singh Sibbia or any other
decision where the scope and sweep of anticipatory bail was at the fulcrum of
the conundrum”
_____________________________________________________________
REPORTABLE
IN THE SUPREME COURT OF
INDIA
CRIMINAL APPELLATE
JURISDICTION
CRIMINAL APPEAL No. 689
OF 2014
[Arising out of SLP
(Crl.) No.1348 of 2014]
SUNDEEP KUMAR BAFNA
....APPELLANT
vs
STATE OF MAHARASHTRA
& ANR. …..RESPONDENT(S)
J U D G M E N T
VIKRAMAJIT SEN, J.
1. Leave granted.
2. A neat legal nodus
of ubiquitous manifestation and gravity has arisen before us. It partakes the
character of a general principle of law with significance sans systems and
States. The futility of the Appellant’s endeavours to secure anticipatory bail
having attained finality, he had once again knocked at the portals of the High
Court of Judicature at Bombay, this time around for regular bail under Section
439 of the Code of Criminal Procedure (CrPC), which was declined with the
observations that it is the Magistrate whose jurisdiction has necessarily to be
invoked and not of the High Court or even the Sessions Judge. The legality of
this conclusion is the gravemen of the appeal before us. While declining to
grant anticipatory bail to the Appellant, this Court had extended to him
transient insulation from arrest for a period of four weeks to enable him to
apply for regular bail, even in the face of the rejection of his Special Leave
Petition on 28.1.2014. This course was courted by him, in the event again in
vain, as the bail application preferred by him under Section 439 CrPC has been
dismissed by the High Court in terms of the impugned Order dated 6.2.2014. His
supplications to the Bombay High Court were twofold; that the High Court may
permit the petitioner to surrender to its jurisdiction and secondly, to enlarge
him on regular bail under Section 439 of the Code, on such terms and conditions
as may be deemed fit and proper.
3. In the impugned
Judgment, the learned Single Judge has opined that when the Appellant’s plea to
surrender before the Court is accepted and he is assumed to be in its custody,
the police would be deprived of getting his custody, which is not contemplated
by law, and thus, the Appellant “is required to be arrested or otherwise he has
to surrender before the Court which can send him to remand either to the police
custody or to the Magisterial custody and this can only be done under Section
167 of CrPC by the Magistrate and that order cannot be passed at the High Court
level.” Learned Senior Counsel for the Appellant have fervidly assailed the
legal correctness of this opinion. It is contended that the Magistrate is not
empowered to grant bail to the Appellant, since he can be punished with
imprisonment for life, as statutorily stipulated in Section 437(1) CrPC; CR
No.290 of 2013 stands registered with P.S. Mahim for offences punishable under
Sections 288, 304, 308, 336, 388 read with 34 and Section 120-B of IPC. Learned
Senior Counsel further contends that since the matter stands committed to
Sessions, the Magistrate is denuded of all powers in respect of the said
matter, for the reason that law envisages the commitment of a case and not of
an individual accused.
4. While accepting the
Preliminary Objection, the dialectic articulated in the impugned order is that
law postulates that a person seeking regular bail must perforce languish in the
custody of the concerned Magistrate under Section 167 CrPC. The Petitioner had
not responded to the notices/summons issued by the concerned Magistrate leading
to the issuance of non-bailable warrants against him, and when even these steps
proved ineffectual in bringing him before the Court, measures were set in
motion for declaring him as a proclaimed offender under Section 82 CrPC. Since
this was not the position obtaining in the case, i.e. it was assumed by the
High Court that the Petitioner was not in custody, the application for bail
under Section 439 of CrPC was held to be not maintainable. This conclusion was
reached even though the petitioner was present in Court and had pleaded in
writing that he be permitted to surrender to the jurisdiction of the High
Court. We shall abjure from narrating in minute detail the factual matrix of
the case as it is not essential to do so for deciding the issues that have
arisen in the present Appeal. Relevant Provisions in the CrPC Pertaining to
Regular Bail:
5. The pandect
providing for bail is Chapter XXXIII comprises Sections 436 to 450 of the CrPC,
of which Sections 437 and 439 are currently critical. Suffice it to state that
Section 438 which deals with directions for grant of bail to persons
apprehending arrest does not mandate either the presence of the applicant in
Court or for his being in custody. Section 437, inter alia, provides that if
any person accused of, or suspected of the commission of any non-bailable
offence is arrested or detained without warrant by an officer in charge of a
police station or if such person appears or is brought before a Court other
than the High Court or Court of Session, he may be released on bail in certain
circumstances.
6. For facility of
reference, Sections 437 and 439, both covering the grant of regular bail in
non-bailable offences are reproduced hereunder. Section 438 has been ignored
because it is the composite provision dealing only with the grant of
anticipatory bail.
“437. When bail may be
taken in case of non- bailable offence.-
(1) When any person
accused of, or suspected of, the commission of any non-bailable offence is
arrested or detained without warrant by an officer in charge of a police
station or appears or is brought before a Court other than the High Court or
Court of Session, he may be released on bail, but –
(i) such person shall
not be so released if there appear reasonable grounds for believing that he has
been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall
not be so released if such offence is a cognizable offence and he had been
previously convicted of an offence punishable with death, imprisonment for life
or imprisonment for seven years or more, or he had been previously convicted on
two or more occasions of a cognizable offence punishable with imprisonment for
three years or more but not less than seven years:
Provided that the Court
may direct that a person referred to in clause (i) or clause (ii) be released
on bail if such person is under the age of sixteen years or is a woman or is
sick or infirm:
Provided further that the Court may also
direct that a person referred to in clause (ii) be released on bail if it is
satisfied that it is just and proper so to do for any other special reason:
Provided also that the
mere fact that an accused person may be required for being identified by
witnesses during investigation shall not be sufficient ground for refusing to
grant bail if he is otherwise entitled to be released on bail and gives an
undertaking that he shall comply with such directions as may be given by the
Court:
Provided also that no
person shall, if the offence alleged to have been committed by him is
punishable with death, imprisonment for life, or imprisonment for seven years
or more, be released on bail by the Court under this sub-section without giving
an opportunity of hearing to the Public Prosecutor.
(2) If it appears to
such officer or Court at any stage of the investigation, inquiry or trial, as
the case may be, that there are not reasonable grounds for believing that the
accused has committed a non-bailable offence, but that there are sufficient
grounds for further inquiry into his guilt, the accused shall, subject to the
provisions of section 446A and pending such inquiry, be released on bail, or at
the discretion of such officer or Court, on the execution by him of a bond
without sureties for his appearance as hereinafter provided.
(3) When a person
accused or suspected of the commission of an offence punishable with
imprisonment which may extend to seven years or more or of an offence under
Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860)
or abetment of, or conspiracy or attempt to commit, any such offence, is
released on bail under sub- section (1) – the Court shall impose the conditions
–
(a) that such person
shall attend in accordance with the conditions of the bond executed under this
Chapter,
(b) that such person
shall not commit an offence similar to the offence of which he is accused, or
suspected, of the commission of which he is suspected, and
(c) that such person
shall not directly or indirectly make any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to any police officer or tamper with the
evidence, and may also impose, in the interests of justice, such other
conditions as it considers necessary.
(4) An officer or a
Court releasing any person on bail under sub-section (1) or sub- section (2),
shall record in writing his or its reasons or special reasons for so doing.
(5) Any Court which has
released a person on bail under subsection (1) or sub- section (2), may, if it
considers it necessary so to do, direct that such person be arrested and commit
him to custody.
(6) If, in any case triable by a Magistrate,
the trial of a person accused of any non-bailable offence is not concluded
within a period of sixty days from the first date fixed for taking evidence in
the case, such person shall, if he is in custody during the whole of the said
period, be released on bail to the satisfaction of the Magistrate, unless for
reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time
after the conclusion of the trial of a person accused of a non-bailable offence
and before judgment is delivered, the Court is of opinion that there are
reasonable grounds for believing that the accused is not guilty of any such
offence, it shall release the accused, if he is in custody, on the execution by
him of a bond without sureties for his appearance to hear judgment delivered.
439. Special powers of
High Court or Court of Session regarding bail –
(1) A High Court or
Court of Session may direct-
(a) that any person accused of an offence and
in custody be released on bail, and if the offence is of the nature specified
in sub-section (3) of section 437, may impose any condition which it considers
necessary for the purposes mentioned in that sub-section;
(b) that any condition
imposed by a Magistrate when releasing any person on bail be set aside or
modified:
Provided that the High
Court or the Court of Session shall, before granting bail to a person who is
accused of an offence which is triable exclusively by the Court of Session or
which, though not so triable, is punishable with imprisonment for life, give
notice of the application for bail to the Public Prosecutor unless it is, for
reasons to be recorded in writing, of the opinion that it is not practicable to
give such notice.
(2) A High Court or
Court of Session may direct that any person who has been released on bail under
this Chapter be arrested and commit him to custody.”
7. Article 21 of the
Constitution states that no person shall be deprived of his life or personal
liberty except according to procedure established by law. We are immediately
reminded of three sentences from the Constitution Bench decision in P.S.R.
Sadhanantham vs Arunachalam (1980) 3 SCC 141, which we appreciate as poetry in
prose –
“Article 21, in its
sublime brevity, guards human liberty by insisting on the prescription of
procedure established by law, not fiat as sine qua non for deprivation of
personal freedom. And those procedures so established must be fair, not
fanciful, nor formal nor flimsy, as laid down in Maneka Gandhi case. So, it is
axiomatic that our Constitutional jurisprudence mandates the State not to
deprive a person of his personal liberty without adherence to fair procedure
laid down by law”.
Therefore, it seems to
us that constriction or curtailment of personal liberty cannot be justified by
a conjectural dialectic. The only restriction allowed as a general principle of
law common to all legal systems is the period of 24 hours post-arrest on the
expiry of which an accused must mandatorily be produced in a Court so that his
remand or bail can be judicially considered.
8. Some poignant
particulars of Section 437 CrPC may be pinpointed. First, whilst Section 497(1)
of the old Code alluded to an accused being “brought before a Court”, the
present provision postulates the accused being “brought before a Court other
than the High Court or a Court of Session” in respect of the commission of any
non-bailable offence. As observed in Gurcharan Singh vs State (1978) 1 SCC 118,
there is no provision in the CrPC dealing with the production of an accused
before the Court of Session or the High Court. But it must also be immediately
noted that no provision categorically prohibits the production of an accused
before either of these Courts. The Legislature could have easily enunciated, by
use of exclusionary or exclusive terminology, that the superior Courts of
Sessions and High Court are bereft of this jurisdiction or if they were so
empowered under the Old Code now stood denuded thereof. Our understanding is in
conformity with Gurcharan Singh, as perforce it must. The scheme of the CrPC
plainly provides that bail will not be extended to a person accused of the
commission of a non-bailable offence punishable with death or imprisonment for
life, unless it is apparent to such a Court that it is incredible or beyond the
realm of reasonable doubt that the accused is guilty. The enquiry of the
Magistrate placed in this position would be akin to what is envisaged in State
of Haryana vs Bhajan Lal, 1992 (Supp)1 SCC 335, that is, the alleged complicity
of the accused should, on the factual matrix then presented or prevailing, lead
to the overwhelming, incontrovertible and clear conclusion of his innocence.
The CrPC severely curtails the powers of the Magistrate while leaving that of
the Court of Session and the High Court untouched and unfettered. It appears to
us that this is the only logical conclusion that can be arrived at on a
conjoint consideration of Sections 437 and 439 of the CrPC. Obviously, in order
to complete the picture so far as concerns the powers and limitations thereto
of the Court of Session and the High Court, Section 439 would have to be
carefully considered. And when this is done, it will at once be evident that
the CrPC has placed an embargo against granting relief to an accused, (couched
by us in the negative), if he is not in custody. It seems to us that any
persisting ambivalence or doubt stands dispelled by the proviso to this
Section, which mandates only that the Public Prosecutor should be put on
notice. We have not found any provision in the CrPC or elsewhere, nor have any
been brought to our ken, curtailing the power of either of the superior Courts
to entertain and decide pleas for bail. Furthermore, it is incongruent that in
the face of the Magistrate being virtually disempowered to grant bail in the
event of detention or arrest without warrant of any person accused of or
suspected of the commission of any non-bailable offence punishable by death or
imprisonment for life, no Court is enabled to extend him succour. Like the
science of physics, law also abhors the existence of a vacuum, as is adequately
adumbrated by the common law maxim, viz. ‘where there is a right there is a
remedy’. The universal right of personal liberty emblazened by Article 21 of
our Constitution, being fundamental to the very existence of not only to a
citizen of India but to every person, cannot be trifled with merely on a
presumptive plane. We should also keep in perspective the fact that Parliament
has carried out amendments to this pandect comprising Sections 437 to 439, and,
therefore, predicates on the well established principles of interpretation of
statutes that what is not plainly evident from their reading, was never
intended to be incorporated into law. Some salient features of these provisions
are that whilst Section 437 contemplates that a person has to be accused or
suspect of a non-bailable offence and consequently arrested or detained without
warrant, Section 439 empowers the Session Court or High Court to grant bail if
such a person is in custody. The difference of language manifests the sublime
differentiation in the two provisions, and, therefore, there is no
justification in giving the word ‘custody’ the same or closely similar meaning
and content as arrest or detention. Furthermore, while Section 437 severally
curtails the power of the Magistrate to grant bail in context of the commission
of non-bailable offences punishable with death or imprisonment for life, the
two higher Courts have only the procedural requirement of giving notice of the
Bail application to the Public Prosecutor, which requirement is also ignorable
if circumstances so demand. The regimes regulating the powers of the Magistrate
on the one hand and the two superior Courts are decidedly and intentionally not
identical, but vitally and drastically dissimilar. Indeed, the only complicity
that can be contemplated is the conundrum of ‘Committal of cases to the Court
of Session’ because of a possible hiatus created by the CrPC.
Meaning of Custody:
9. Unfortunately, the
terms ‘custody’, ‘detention’ or ‘arrest’ have not been defined in the CrPC, and
we must resort to few dictionaries to appreciate their contours in ordinary and
legal parlance. The Oxford Dictionary (online) defines custody as imprisonment,
detention, confinement, incarceration, internment, captivity; remand, duress,
and durance. The Cambridge Dictionary (online) explains ‘custody’ as the state
of being kept in prison, especially while waiting to go to court for trial.
Longman Dictionary (online) defines ‘custody’ as ‘when someone is kept in
prison until they go to court, because the police think they have committed a
crime’. Chambers Dictionary (online) clarifies that custody is ‘the condition
of being held by the police; arrest or imprisonment; to take someone into
custody to arrest them’. Chambers’ Thesaurus supplies several synonyms, such as
detention, confinement, imprisonment, captivity, arrest, formal incarceration.
The Collins Cobuild English Dictionary for Advance Learners states in terms of
that someone who is in custody or has been taken into custody or has been
arrested and is being kept in prison until they get tried in a court or if
someone is being held in a particular type of custody, they are being kept in a
place that is similar to a prison. The Shorter Oxford English Dictionary
postulates the presence of confinement, imprisonment, durance and this feature
is totally absent in the factual matrix before us. The Corpus Juris Secundum
under the topic of ‘Escape & Related Offenses; Rescue’ adumbrates that
‘Custody, within the meaning of statutes defining the crime, consists of the
detention or restraint of a person against his or her will, or of the exercise
of control over another to confine the other person within certain physical
limits or a restriction of ability or freedom of movement.’
This is how ‘Custody’
is dealt with in Black’s Law Dictionary, (9th ed. 2009):-
“Custody- The care and
control of a thing or person. The keeping, guarding, care, watch, inspection,
preservation or security of a thing, carrying with it the idea of the thing
being within the immediate personal care and control of the person to whose
custody it is subjected. Immediate charge and control, and not the final,
absolute control of ownership, implying responsibility for the protection and
preservation of the thing in custody. Also the detainer of a man’s person by virtue
of lawful process or authority. The term is very elastic and may mean actual
imprisonment or physical detention or mere power, legal or physical, of
imprisoning or of taking manual possession. Term “custody” within statute
requiring that petitioner be “in custody” to be entitled to federal habeas
corpus relief does not necessarily mean actual physical detention in jail or
prison but rather is synonymous with restraint of liberty. U. S. ex rel. Wirtz
v. Sheehan, D.C.Wis, 319 F.Supp. 146, 147. Accordingly, persons on probation or
released on own recognizance have been held to be “in custody” for purposes of
habeas corpus proceedings.”
10. A perusal of the
dictionaries thus discloses that the concept that is created is the controlling
of a person’s liberty in the course of a criminal investigation, or curtailing
in a substantial or significant manner a person’s freedom of action. Our
attention has been drawn, in the course of Rejoinder arguments to the judgment
of the Full Bench of the High Court of Madras in Roshan Beevi vs Joint
Secretary 1984(15) ELT 289 (Mad), as also to the decision of the Court in
Directorate of Enforcement vs Deepak Mahajan (1994) 3 SCC 440; in view of the
composition of both the Benches, reference to the former is otiose. Had we been
called upon to peruse Deepak Mahajan earlier, we may not have considered it
necessary to undertake a study of several Dictionaries, since it is a
convenient and comprehensive compendium on the meaning of arrest, detention and
custody.
11. Courts in Australia,
Canada, U.K. and U.S. have predicated in great measure, their decisions on
paragraph 99 from Vol. II Halsbury’s Laws of England (4th Edition) which states
that –
“Arrest consists of the
actual seizure or touching of a person’s body with a view to his detention. The
mere pronouncing of words of arrest is not an arrest, unless the person sought
to be arrested submits to the process and goes with the arresting officer”.
The US Supreme Court
has been called upon to explicate the concept of custody on a number of
occasions, where, coincidentally, the plea that was proffered was the failure
of the police to administer the Miranda caution, i.e. of apprising the detainee
of his Constitutional rights. In Miranda vs Arizona 384 US 436 (1966),
custodial interrogation has been said to mean “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way”. In Minnesota vs
Murphy 465 US 420 (1984), it was opined by the U.S. Supreme Court that since
“no formal arrest or restraint on freedom of movement of the degree associated
with formal arrest” had transpired, the Miranda doctrine had not become
operative. In R. vs Whitfield 1969 CareswellOnt 138, the Supreme Court of
Canada was called upon to decide whether the police officer, who directed the
accused therein to stop the car and while seizing him by the shirt said “you
are under arrest:”, could be said to have been “custodially arrested” when the
accused managed to sped away. The plurality of the Supreme Court declined to
draw any distinction between an arrest amounting to custody and a mere or bare
arrest and held that the accused was not arrested and thus could not have been
guilty of “escaping from lawful custody”. More recently, the Supreme Court of
Canada has clarified in R. vs Suberu [2009] S.C.J.No.33 that detention
transpired only upon the interaction having the consequence of a significant
deprivation of liberty. Further, in Berkemer vs McCarty 468 U.S. 420 (1984), a
roadside questioning of a motorist detained pursuant to a routine traffic stop
was not seen as analogous to custodial interrogation requiring adherence to
Miranda rules.
12. It appears to us
from the above analysis that custody, detention and arrest are sequentially
cognate concepts. On the occurrence of a crime, the police is likely to carry
out the investigative interrogation of a person, in the course of which the
liberty of that individual is not impaired, suspects are then preferred by the
police to undergo custodial interrogation during which their liberty is impeded
and encroached upon. If grave suspicion against a suspect emerges, he may be
detained in which event his liberty is seriously impaired. Where the
investigative agency is of the opinion that the detainee or person in custody
is guilty of the commission of a crime, he is charged of it and thereupon
arrested. In Roshan Beevi, the Full Bench of the High Court of Madras, speaking
through S. Ratnavel Pandian J, held that the terms ‘custody’ and ‘arrest’ are
not synonymous even though in every arrest there is a deprivation of liberty is
custody but not vice versa. This thesis is reiterated by Pandian J in Deepak
Mahajan by deriving support from Niranjan Singh vs Prabhakar Rajaram Kharote
(1980) 2 SCC 559. The following passages from Deepak Mahajan are worthy of
extraction:-
“48. Thus the Code
gives power of arrest not only to a police officer and a Magistrate but also
under certain circumstances or given situations to private persons. Further,
when an accused person appears before a Magistrate or surrenders voluntarily,
the Magistrate is empowered to take that accused person into custody and deal
with him according to law. Needless to emphasize that the arrest of a person is
a condition precedent for taking him into judicial custody thereof. To put it
differently, the taking of the person into judicial custody is followed after
the arrest of the person concerned by the Magistrate on appearance or
surrender. It will be appropriate, at this stage, to note that in every arrest,
there is custody but not vice versa and that both the words ‘custody’ and
‘arrest’ are not synonymous terms. Though ‘custody’ may amount to an arrest in
certain circumstances but not under all circumstances. If these two terms are
interpreted as synonymous, it is nothing but an ultra legalist interpretation
which if under all circumstances accepted and adopted, would lead to a
startling anomaly resulting in serious consequences, vide Roshan Beevi.
49. While interpreting
the expression ‘in custody’ within the meaning of Section 439 CrPC, Krishna
Iyer, J. speaking for the Bench in Niranjan Singh v. Prabhakar Rajaram Kharote
observed that: (SCC p. 563, para 9)
“He can be in custody
not merely when the police arrests him, produces him before a Magistrate and
gets a remand to judicial or other custody. He can be stated to be in judicial
custody when he surrenders before the court and submits to its directions.”
(emphasis added)
If the third sentence
of para 48 is discordant to Niranjan Singh, the view of the coordinate Bench of
earlier vintage must prevail, and this discipline demands and constrains us
also to adhere to Niranjan Singh; ergo, we reiterate that a person is in
custody no sooner he surrenders before the police or before the appropriate
Court. This enunciation of the law is also available in three decisions in
which Arijit Pasayat J spoke for the 2-Judge Benches, namely
(a) Nirmal Jeet Kaur vs
State of M.P. (2004) 7 SCC 558 and
(b) Sunita Devi vs
State of Bihar (2005) 1 SCC 608, and
(c) Adri Dharan Das vs
State of West Bengal, (2005) 4 SCC 303, where the Co-equal Bench has opined
that since an accused has to be present in Court on the moving of a bail
petition under Section 437, his physical appearance before the Magistrate
tantamounts to surrender. The view of Niranjan Singh (see extracted para 49
infra) has been followed in State of Haryana vs Dinesh Kumar (2008) 3 SCC 222.
We can only fervently hope that member of Bar will desist from citing several
cases when all that is required for their purposes is to draw attention to the
precedent that holds the field, which in the case in hand, we reiterate is
Niranjan Singh.
Rule of Precedent &
Per Incuriam:
13. The Constitution
Bench in Union of India vs Raghubir Singh, 1989 (2) SCC 754, has come to the
conclusion extracted below:
“27. What then should
be the position in regard to the effect of the law pronounced by a Division
Bench in relation to a case raising the same point subsequently before a
Division Bench of a smaller number of Judges? There is no constitutional or
statutory prescription in the matter, and the point is governed entirely by the
practice in India of the courts sanctified by repeated affirmation over a
century of time. It cannot be doubted that in order to promote consistency and
certainty in the law laid down by a superior Court, the ideal condition would
be that the entire Court should sit in all cases to decide questions of law,
and for that reason the Supreme Court of the United States does so. But having
regard to the volume of work demanding the attention of the Court, it has been
found necessary in India as a general rule of practice and convenience that the
Court should sit in Divisions, each Division being constituted of Judges whose
number may be determined by the exigencies of judicial need, by the nature of
the case including any statutory mandate relative thereto, and by such other
considerations which the Chief Justice, in whom such authority devolves by
convention, may find most appropriate. It is in order to guard against the
possibility of inconsistent decisions on points of law by different Division
Benches that the Rule has been evolved, in order to promote consistency and
certainty in the development of the law and its contemporary status, that the
statement of the law by a Division Bench is considered binding on a Division
Bench of the same or lesser number of Judges. This principle has been followed
in India by several generations of Judges. …”
14. This ratio of
Raghubir Singh was applied once again by the Constitution Bench in Chandra
Prakash v. State of U.P.: AIR 2002 SC 1652. We think it instructive to extract
the paragraph 22 from Chandra Prakash in order to underscore that there is a
consistent and constant judicial opinion, spanning across decades, on this
aspect of jurisprudence:
“Almost similar is the
view expressed by a recent judgment of a five-Judge Bench of this Court in
Parija’s case (supra). In that case, a Bench of two learned Judges doubted the
correctness of the decision a Bench of three learned Judges, hence, directly
referred the matter to a Bench of five learned Judges for reconsideration. In
such a situation, the five-Judge Bench held that judicial discipline and
propriety demanded that a Bench of two learned Judges should follow the
decision of a Bench of three learned Judges. On this basis, the five-Judge
Bench found fault with the reference made by the two-Judge Bench based on the
doctrine of binding precedent.”
15. It cannot be
over-emphasised that the discipline demanded by a precedent or the
disqualification or diminution of a decision on the application of the per
incuriam rule is of great importance, since without it, certainty of law,
consistency of rulings and comity of Courts would become a costly casualty. A
decision or judgment can be per incuriam any provision in a statute, rule or
regulation, which was not brought to the notice of the Court. A decision or judgment
can also be per incuriam if it is not possible to reconcile its ratio with that
of a previously pronounced judgment of a Coequal or Larger Bench; or if the
decision of a High Court is not in consonance with the views of this Court. It
must immediately be clarified that the per incuriam rule is strictly and
correctly applicable to the ratio decidendi and not to obiter dicta. It is
often encountered in High Courts that two or more mutually irreconcilable
decisions of the Supreme Court are cited at the Bar. We think that the
inviolable recourse is to apply the earliest view as the succeeding ones would
fall in the category of per incuriam. Validation of Ratio in Niranjan Singh:
16. We must now discuss
in detail the decision of a Two-Judge Bench in Rashmi Rekha Thatoi vs State of
Orissa, (2012) 5 SCC 690, for the reason that in the impugned Order the Single
Judge of the High Court has proclaimed, which word we used intentionally, that
Niranjan Singh is per incuriam. The ‘chronology of cases’ mentioned in Rashmi
Rekha elucidates that there is only one judgment anterior to Niranjan Singh,
namely, Balchand Jain vs State of M.P. (1976) 4 SCC 572, which along with the
Constitution Bench decision in Gurbaksh Singh Sibbia, intrinsically concerned
itself only with anticipatory bail. It is necessary to give a salutary clarion
caution to all Courts, including High Courts, to be extremely careful and
circumspect in concluding a judgment of the Supreme Court to be per incuriam.
In the present case, in the impugned Order the learned Single Judge appears to
have blindly followed the incorrect and certainly misleading editorial note in
the Supreme Court Reports without taking the trouble of conscientiously
apprising himself of the context in which Rashmi Rekha appears to hold Niranjan
Singh per incuriam, and equally importantly, to which previous judgment. An
earlier judgment cannot possibly be seen as per incuriam a later judgment as
the latter if numerically stronger only then it would overrule the former.
Rashmi Rekha dealt with anticipatory bail under Section 438 and only
tangentially with Sections 437 and 439 of the CrPC, and while deliberations and
observations found in this clutch of cases may not be circumscribed by the term
obiter dicta, it must concede to any judgment directly on point. In the factual
matrix before us, Niranjan Singh is the precedent of relevance and not Gurbaksh
Singh Sibbia or any other decision where the scope and sweep of anticipatory
bail was at the fulcrum of the conundrum.
17. Recently, in Dinesh
Kumar, this conundrum came to be considered again. This Court adhered to the
Niranjan Singh dicta (as it was bound to do), viz. that a person can be stated
to be in judicial custody when he surrendered before the Court and submits to
its directions. We further regretfully observe that the impugned Judgment is
repugnant to the analysis carried out by two coordinate Benches of the High
Court of Bombay itself, which were duly cited on behalf of the Appellant. The
first one is reported as Balkrishna Dhondu Rani vs Manik Motiram Jagtap 2005
(Supp.) Bom C.R.(Cri) 270 which applied Niranjan Singh; the second is by a
different Single Bench, which correctly applied the first. In the common law
system, the purpose of precedents is to impart predictability to law,
regrettably the judicial indiscipline displayed in the impugned Judgment,
defeats it. If the learned Single Judge who had authored the impugned Judgment
irrepressibly held divergent opinion and found it unpalatable, all that he
could have done was to draft a reference to the Hon’ble Chief Justice for the
purpose of constituting a larger Bench; whether or not to accede to this
request remains within the discretion of the Chief Justice. However, in the
case in hand, this avenue could also not have been traversed since Niranjan
Singh binds not only Co-equal Benches of the Supreme Court but certainly every
Bench of any High Court of India. Far from being per incuriam, Niranjan Singh
has metamorphosed into the structure of stare decisis, owing to it having endured
over two score years of consideration, leading to the position that even Larger
Benches of this Court should hesitate to remodel its ratio.
18. It will also be
germane to briefly cogitate on the fasciculous captioned
“Section 438 of the Code of Civil Procedure,
as amended by the Code of Criminal Procedure (Amendment) Act, 2005 of the 203rd
Report of the Law Commission.
Although, the Law Commission was principally
focused on the parameters of anticipatory bail, it had reflected on Niranjan
Singh, and, thereafter, observed in paragraph 6.3.23 that
“where a person appears
before the Court in compliance with any Court’s order and surrenders himself to
the Court’s directions or control, he may be granted regular bail, since he is
already under restraint. The provisions relating to the anticipatory bail may
not be attracted in such a case”.
An amendment was
proposed to the provisions vide CrPC (Amendment) Act, 2005 making the presence
of the applicant seeking anticipatory bail obligatory at the time of final
hearing of the application for enlargement on bail. The said amendment has not
been notified yet and kept in abeyance because of two reasons. Firstly, the
amendment led to widespread agitation by the lawyers fraternity since it would
virtually enable the police to immediately arrest an accused in the event the
Court declined to enlarge the accused on bail. Secondly, in the perception of
the Law Commission, it would defeat the very purpose of the anticipatory bail.
The conclusion of the Law Commission, in almost identical words to those
extracted above are that:
“when the applicant
appears in the Court in compliance of the Court’s order and is subjected to the
Court’s directions, he may be viewed as in Court’s custody and this may render
the relief of anticipatory bail infructuous”. Accordingly, the Law Commission
has recommended omission of sub-section (1-B) of Section 438 CrPC.
19. The Appellant had
relied on Niranjan Singh vs Prabhakar Rajaram Kharote (1980) 2 SCC 559, before
the High Court as well as before us. A perusal of the impugned Order discloses
that the learned Single Judge was of the mistaken opinion that Niranjan Singh
was per incuriam, possibly because of an editorial error in the reporting of
the later judgment in Rashmi Rekha Thatoi vs State of Orissa (2012) 5 SCC 690.
In the latter decision the curial assault was to the refusal to grant of
anticipatory bail under Section 438(1) CrPC, yet nevertheless enabling him to
surrender before the Sub Divisional Magistrate and thereupon to be released on
bail. In the appeal in hand this issue is not in focus; the kernel of the
conundrum before us is the meaning to be ascribed to the concept of custody in
Section 439 CrPC, and a careful scrutiny of Rashmi Rekha will disclose that it
does not even purport to or tangentially intend to declare Niranjan Singh as
per incuriam. Any remaining doubt would be dispelled on a perusal of Ranjit
Singh vs State of M.P, where our esteemed Brother Dipak Misra has clarified
that Rashmi Rekha concerned itself only with anticipatory bail. The impugned
Order had therefore to remain in complete consonance with Niranjan Singh. It
needs to be clarified that paragraph 14 of Sunita Devi vs State of Bihar (2005)
1 SCC 608, extracts verbatim paragraph 7 of Niranjan Singh, without mentioning
so. The annals of the litigation in Niranjan Singh are that pursuant to a
private complaint under Section 202 CrPC, the concerned Magistrate issued
non-bailable warrants in respect of the accused, and subsequently while
refusing bail to them had neglected to contemporaneously cause them to be taken
into custody. In that interregnum or hiatus, the accused moved the Sessions
Court which granted them bail albeit on certain terms which the High Court did
not interfere therewith. This Court, speaking through Krishna Iyer J elucidated
the law in these paragraphs:
“6. Here the
respondents were accused of offences but were not in custody, argues the
petitioner so no bail, since this basic condition of being in jail is not
fulfilled. This submission has been rightly rejected by the courts below. We
agree that, in one view, an outlaw cannot ask for the benefit of law and he who
flees justice cannot claim justice. But here the position is different. The
accused were not absconding but had appeared and surrendered before the
Sessions Judge. Judicial jurisdiction arises only when persons are already in
custody and seek the process of the court to be enlarged. We agree that no
person accused of an offence can move the court for bail under Section 439 CrPC
unless he is in custody.
7. When is a person in
custody, within the meaning of Section 439 CrPC?
When he is in duress
either because he is held by the investigating agency or other police or allied
authority or is under the control of the court having been remanded by judicial
order, or having offered himself to the court’s jurisdiction and submitted to
its orders by physical presence. No lexical dexterity nor precedential
profusion is needed to come to the realistic conclusion that he who is under
the control of the court or is in the physical hold of an officer with coercive
power is in custody for the purpose of Section 439. This word is of elastic
semantics but its core meaning is that the law has taken control of the person.
The equivocatory quibblings and hide-and-seek niceties sometimes heard in court
that the police have taken a man into informal custody but not arrested him,
have detained him for interrogation but not taken him into formal custody and
other like terminological dubieties are unfair evasions of the
straightforwardness of the law. We need not dilate on this shady facet here
because we are satisfied that the accused did physically submit before the
Sessions Judge and the jurisdiction to grant bail thus arose.
8. Custody, in the
context of Section 439, (we are not, be it noted, dealing with anticipatory
bail under Section 438) is physical control or at least physical presence of
the accused in court coupled with submission to the jurisdiction and orders of
the court.
9. He can be in custody
not merely when the police arrests him, produces him before a Magistrate and
gets a remand to judicial or other custody. He can be stated to be in judicial
custody when he surrenders before the court and submits to its directions. In
the present case, the police officers applied for bail before a Magistrate who
refused bail and still the accused, without surrendering before the Magistrate,
obtained an order for stay to move the Sessions Court. This direction of the
Magistrate was wholly irregular and maybe, enabled the accused persons to
circumvent the principle of Section 439 CrPC. We might have taken a serious
view of such a course, indifferent to mandatory provisions, by the subordinate
magistracy but for the fact that in the present case the accused made up for it
by surrender before the Sessions Court. Thus, the Sessions Court acquired
jurisdiction to consider the bail application. It could have refused bail and
remanded the accused to custody, but, in the circumstances and for the reasons
mentioned by it, exercised its jurisdiction in favour of grant of bail. The
High Court added to the conditions subject to which bail was to be granted and
mentioned that the accused had submitted to the custody of the court. We,
therefore, do not proceed to upset the order on this ground. Had the
circumstances been different we would have demolished the order for bail. We
may frankly state that had we been left to ourselves we might not have granted
bail but, sitting under Article 136, do not feel that we should interfere with
a discretion exercised by the two courts below.” (Emphasis added by us)
It should not need be labouring
that High Courts must be most careful and circumspect in concluding that a
decision of a superior Court is per incuriam. And here, palpably without taking
the trouble of referring to and reading the precedents alluded to, casually
accepting to be correct a careless and incorrect editorial note, the Single
Judge has done exactly so. All the cases considered in Rashmi Rekha including
the decision of the Constitution Bench in Gurbaksh Singh Sibbia vs State of
Punjab (1980) 2 SCC 565, concentrated on the contours and circumference of
anticipatory bail, i.e. Section 438. We may reiterate that the Appellant’s
prayer for anticipatory bail had already been declined by this Court, which is
why he had no alternative but to apply for regular bail. Before we move on we
shall reproduce the following part of paragraph 19 of Sibbia as it has
topicality:-
“19 … Besides, if and
when the occasion arises, it may be possible for the prosecution to claim the
benefit of Section 27 of the Evidence Act in regard to a discovery of facts
made in pursuance of information supplied by a person released on bail by
invoking the principles stated by this Court in State of U.P. v. Deoman
Upadhyaya to the effect that when a person not in custody approaches a police
officer investigating an offence and offers to give information leading to the
discovery of a fact, having a bearing on the charge which may be made against
him, he may appropriately be deemed so have surrendered himself to the police.
The broad foundation of this rule is stated to be that Section 46 of the Code
of Criminal Procedure does not contemplate any formality before a person can be
said to be taken in custody: submission to the custody by word or action by a
person is sufficient. For similar reasons, we are unable to agree that
anticipatory bail should be refused if a legitimate case for the remand of the
offender to the police custody under Section 167(2) of the Code is made out by
the investigating agency.”
20. In this analysis,
the opinion in the impugned Judgment incorrectly concludes that the High Court
is bereft or devoid of power to jurisdiction upon a petition which firstly
pleads surrender and, thereafter, prays for bail. The High Court could have
perfunctorily taken the Appellant into its custody and then proceeded with the
perusal of the prayer for bail; in the event of its coming to the conclusion
that sufficient grounds had not been disclosed for enlargement on bail,
necessary orders for judicial or police custody could have been ordained. A
Judge is expected to perform his onerous calling impervious of any public
pressure that may be brought to bear on him.
The Conundrum of
Cognizance, Committal & Bail
21. We have already
noted in para 8 the creation by the CrPC of a hiatus between the cognizance of
an offence by the Magistrate and the committal by him of that offence to the
Court of Session. Section 190 contemplates the cognizance of an offence by a
Magistrate in any of the following four circumstances:
(i) upon receiving a
complaint of facts; or
(ii) upon a police
report of such facts; or
(iii) upon information
received from any person other than a police officer, or
(iv) upon the
Magistrate’s own knowledge.
Thereafter, Section 193
proscribes the Court of Session from taking cognizance of any offence, as a
Court of original jurisdiction, unless the case has been committed to it by a
Magistrate; its Appellate jurisdiction is left untouched. Chapter XVI makes it
amply clear that a substantial period may inevitably intervene between a
Magistrate taking cognizance of an offence triable by Sessions and its
committal to the Court of Session. Section 204 casts the duty on a Magistrate
to issue process; Section 205 empowers him to dispense with personal attendance
of accused; Section 206 permits Special summons in cases of petty offence;
Sections 207 and 208 obligate the Magistrate to furnish to the accused, free of
cost, copies of sundry documents mentioned therein; and, thereafter, under
Section 209 to commit the case to Sessions. What is to happen to the accused in
this interregnum; can his liberty be jeopardized! The only permissible
restriction to personal freedom, as a universal legal norm, is the arrest or
detention of an accused for a reasonable period of 24 hours. Thereafter, the
accused would be entitled to seek before a Court his enlargement on bail. In
connection with serious offences, Section 167 CrPC contemplates that an accused
may be incarcerated, either in police or judicial custody, for a maximum of 90
days if the Charge Sheet has not been filed. An accused can and very often does
remain bereft of his personal liberty for as long as three months and law must
enable him to seek enlargement on bail in this period. Since severe
restrictions have been placed on the powers of a Magistrate to grant bail, in
the case of an offence punishable by death or for imprisonment for life, an
accused should be in a position to move the Courts meaningfully empowered to
grant him succour. It is inevitable that the personal freedom of an individual
would be curtailed even before he can invoke the appellate jurisdiction of
Sessions Judge. The Constitution therefore requires that a pragmatic, positive
and facilitative interpretation be given to the CrPC especially with regard to
the exercise of its original jurisdiction by the Sessions Court. We are unable
to locate any provision in the CrPC which prohibits an accused from moving the
Court of Session for such a relief except, theoretically, Section 193 which
also only prohibits it from taking cognizance of an offence as a Court of
original jurisdiction. This embargo does not prohibit the Court of Session from
adjudicating upon a plea for bail. It appears to us that till the committal of
case to the Court of Session, Section 439 can be invoked for the purpose of
pleading for bail. If administrative difficulties are encountered, such as,
where there are several Additional Session Judges, they can be overcome by
enabling the accused to move the Sessions Judge, or by further empowering the
Additional Sessions Judge hearing other Bail Applications whether post
committal or as the Appellate Court, to also entertain Bail Applications at the
pre-committal stage. Since the Magistrate is completely barred from granting
bail to a person accused even of an offence punishable by death or imprisonment
for life, a superior Court such as Court of Session, should not be
incapacitated from considering a bail application especially keeping in
perspective that its powers are comparatively unfettered under Section 439 of
the CrPC.
22. In the case in
hand, we need not dwell further on this question since the Appellant has filed
an application praying, firstly, that he be permitted to surrender to the High
Court and secondly, for his plea to be considered for grant of bail by the High
Court. We say this because there are no provisions in the CrPC contemplating
the committal of a case to the High Court, thereby logically leaving its powers
untrammelled. There are no restrictions on the High Court to entertain an
application for bail provided always the accused is in custody, and this
position obtains as soon as the accused actually surrenders himself to the
Court. Reliance on R vs Evans, (2012) 1 WLR 1192, by learned Senior Counsel for
the respondents before us is misplaced, since on its careful reading, the facts
are totally distinguishable inasmuch as the accused in that case had so
engineered events as not to be available in persona in the Court at the time of
the consideration of his application for surrender. The Court of Appeal
observed that they “do not agree that reporting to the usher amounts to
surrender”.
The Court in fact
supported the view that surrender may also be accomplished by the commencement
of any hearing before the Judge, however brief, where the accused person is
formally identified and plainly would overtly have subjected himself to the
control of the Court. Incontrovertibly, at the material time the Appellant was
corporeally present in the Bombay High Court making Evans applicable to the
case of the Appellant rather than the case of the respondent. A further
singularity of the present case is that the offence has already been committed
to Sessions, albeit, the accused/Appellant could not have been brought before
the Magistrate. It is beyond cavil “that a Court takes cognizance of an offence
and not an offender” as observed in Dilawar Singh vs Parvinder Singh, (2005) 12
SCC 709, in which Raghubans Dubey vs State of Bihar, AIR 1967 SC 1167, was
applied. Therefore, the High Court was not justified in directing the Appellant
to appear before the Magistrate.
23. On behalf of the
State, the submission is that the prosecution should be afforded a free and
fair opportunity of subjecting the accused to custody for interrogation as
provided under Section 167 CrPC. This power rests with the Magistrate and not
with the High Court, which is the Court of Revision and Appeal; therefore, the
High Court under Section 482 CrPC can only correct or rectify an order passed
without jurisdiction by a subordinate Court. Learned State counsel submits that
the High Court in exercise of powers under Section 482 can convert the nature
of custody from police custody to judicial custody and vice versa, but cannot
pass an Order of first remanding to custody. Therefore, the only avenue open to
the accused is to appear before the Magistrate who is empowered under Section
167 CrPC. Thereupon, the Magistrate can order for police custody or judicial
custody or enlarge him on bail. On behalf of the State, it is contended that if
accused persons are permitted to surrender to the High Court, it is capable of
having, if not a disastrous, certainly a deleterious effect on investigations
and shall open up the flood gates for accused persons to make strategies by
keeping themselves away from the investigating agencies for months on end. The
argument continues that in this manner absconding accused in several sensitive
cases, affecting the security of the nation or the economy of the country,
would take advantage of such an interpretation of law and get away from the
clutches of the investigating officer. We are not impressed by the arguments
articulated by learned Senior Counsel for the Complainant or informant because
it is axiomatic that any infraction or inroad to the freedom of an individual
is possible only by some clear unequivocal and unambiguous procedure known to
law.
Role of Public
Prosecutor and Private Counsel in Prosecution
24. The concern of the
Three Judge Bench in Thakur Ram vs State of Bihar AIR 1966 SC 911, principally
was whether the case before them should have been committed to Sessions, as
also whether this plea could be countenanced at the stage when only the
Judgment was awaited and any such interference would effectuate subjecting the
accused to face trial virtually de novo. The observations that where “a case
has proceeded on a police report a private party has really no locus standi,
since the aggrieved party is the State”, are strictly senso obiter dicta but it
did presage the view that was to be taken by this Court later. In Bhagwant
Singh vs Commissioner of Police, (1985) 2 SCC 537, another Three Judge Bench
formulated the question which required its answer that “whether in a case where
First Information Report is lodged and after completion of investigation
initiated on the basis of the First Information Report, the police submits a
report that no offence appears to have been committed, the Magistrate can
accept the report and drop the proceeding without issuing notice to the first
informant or to the injured or in case the incident has resulted in death, to
the relatives of the deceased”.
Sections 154, 156, 157,
173 and 190 of the CrPC were duly considered threadbare, before opining thus:-
“4. ….when, on a
consideration of the report made by the officer-in-charge of a police station
under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take
cognizance of the offence and issue process, the informant must be given an
opportunity of being heard so that he can make his submissions to persuade the
Magistrate to take cognizance of the offence and issue process…..
xxxxxxxxxx “
5. The position may
however, be a little different when we consider the question whether the
injured person or a relative of the deceased, who is not the informant, is
entitled to notice when the report comes up for consideration by the
Magistrate. We cannot spell out either from the provisions of the Code of
Criminal Procedure, 1973 or from the principles of natural justice, any
obligation on the Magistrate to issue notice to the injured person or to a
relative of the deceased for providing such person an opportunity to be heard
at the time of consideration of the report, unless such person is the informant
who has lodged the First Information Report. But even if such person is not
entitled to notice from the Magistrate, he can appear before the Magistrate and
make his submissions when the report is considered by the Magistrate for the purpose
of deciding what action he should take on the report……”
Thereafter, in Shiv
Kumar vs Hukam Chand (1999) 7 SCC 467, the question that was posed before
another Three Judge Bench was whether an aggrieved has a right to engage its
own counsel to conduct the prosecution despite the presence of the Public
Prosecutor. This Court duly noted that the role of the Public Prosecutor was
upholding the law and putting together a sound prosecution; and that the
presence of a private lawyer would inexorably undermine the fairness and
impartiality which must be the hallmark, attribute and distinction of every
proper prosecution. In that case the advocate appointed by the aggrieved party
ventured to conduct the cross examination of the witness which was allowed by
the Trial Court but was reversed in Revision by the High Court, and the High
Court permitted only the submission of Written Argument after the closure of
evidence. Upholding the view of the High Court, this Court went on to observe
that before the Magistrate any person (except a police officer below the rank
of Inspector) could conduct the prosecution, but that this laxity is
impermissible in Sessions by virtue of Section 225 of the CrPC, which pointedly
states that the prosecution shall be conducted by a Public Prosecutor. We,
respectfully, agree with the observations that –
“A Public Prosecutor is not expected to show a
thirst to reach the case in the conviction of the accused somehow or the other
irrespective of the true facts involved in the case. The expected attitude of
the Public Prosecutor while conducting prosecution must be couched in fairness
not only to the Court and to the investigating agencies but to the accused as
well. ……..
A private counsel, if
allowed a free hand to conduct prosecution would focus on bringing the case to
conviction even if it is not a fit case to be so convicted. That is the reason
why Parliament applied a bridle on him and subjected his role strictly to the
instructions given by the Public Prosecutor.”
In J.K. International
vs State (2001) 3 SCC 462, the Appellant had filed a complaint alleging
offences under Sections 420, 406 and 120-B IPC in respect of which a Charge
Sheet was duly filed. The Appellant preferred a petition in the High Court for
quashing the FIR in which proceeding the complainant’s request for being heard
was rejected by the High Court. Thakur Ram and Bhagwant Singh were cited and
analysed. It was reiterated by this Court that it is the Public Prosecutor who
is in the management of the prosecution the Court should look askance at
frequent interjection and interference by a private person. However, if the
proceedings are likely to be quashed, then the complainant should be heard at
that stage, rather than compelling him to assail the quashment by taking recourse
to an appeal. Sections 225, 301 and 302 were also adverted to and, thereafter,
it was opined that a private person is not altogether eclipsed from the
scenario, as he remains a person who will be prejudiced by an order culminating
in the dismissal of the prosecution.
The Three Judge Bench
observed that upon the Magistrate becoming prescient that a prosecution is
likely to end in its dismissal, it would be salutary to allow a hearing to the
Complainant at the earliest; and, in the case of a Sessions trial, by
permitting the filing of Written Arguments.
25. The upshot of this
analysis is that no vested right is granted to a complainant or informant or
aggrieved party to directly conduct a prosecution. So far as the Magistrate is
concerned, comparative latitude is given to him but he must always bear in mind
that while the prosecution must remain being robust and comprehensive and
effective it should not abandon the need to be free, fair and diligent. So far
as the Sessions Court is concerned, it is the Public Prosecutor who must at all
times remain in control of the prosecution and a counsel of a private party can
only assist the Public Prosecutor in discharging its responsibility. The
complainant or informant or aggrieved party may, however, be heard at a crucial
and critical juncture of the Trial so that his interests in the prosecution are
not prejudiced or jeopardized. It seems to us that constant or even frequent
interference in the prosecution should not be encouraged as it will have a
deleterious impact on its impartiality. If the Magistrate or Sessions Judge
harbours the opinion that the prosecution is likely to fail, prudence would
prompt that the complainant or informant or aggrieved party be given an
informal hearing. Reverting to the case in hand, we are of the opinion that the
complainant or informant or aggrieved party who is himself an accomplished
criminal lawyer and who has been represented before us by the erudite Senior
Counsel, was not possessed of any vested right of being heard as it is
manifestly evident that the Court has not formed any opinion adverse to the
prosecution. Whether the Accused is to be granted bail is a matter which can
adequately be argued by the State Counsel. We have, however, granted a full
hearing to Mr. Gopal Subramanium, Senior Advocate and have perused detailed
Written Submissions since we are alive to impact that our opinion would have on
a multitude of criminal trials.
26. In conclusion,
therefore, we are of the opinion that the learned Single Judge erred in law in
holding that he was devoid of jurisdiction so far as the application presented
to him by the Appellant before us was concerned. Conceptually, he could have
declined to accept the prayer to surrender to the Courts’ custody, although, we
are presently not aware of any reason for this option to be exercised. Once the
prayer for surrender is accepted, the Appellant before us would come into the
custody of the Court within the contemplation of Section 439 CrPC. The Sessions
Court as well as the High Court, both of which exercised concurrent powers
under Section 439, would then have to venture to the merits of the matter so as
to decide whether the applicant/Appellant had shown sufficient reason or
grounds for being enlarged on bail.
27. The impugned Order
is, accordingly, set aside. The Learned Single Judge shall consider the
Appellant’s plea for surrendering to the Court and dependent on that decision,
the Learned Single Judge shall, thereafter, consider the Appellant’s plea for
his being granted bail. The Appellant shall not be arrested for a period of two
weeks or till the final disposal of the said application, whichever is later.
We expect that the learned Single Judge shall remain impervious to any pressure
that may be brought to bear upon him either from the public or from the media
as this is the fundamental and onerous duty cast on every Judge.
28. The appeal is
allowed in the above terms.
.............................................J.
[K.S.RADHAKRISHNAN]
............................................J.
[VIKRAMAJIT SEN]
New Delhi;
March 27, 2014
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