2018 (2) TMI 1943 - SC - Indian Laws

Supreme Court affirms discretion in bail decisions under Section 88

Pankaj Jain Versus Union of India (UOI) and Ors.

The Supreme Court upheld the discretionary nature of Section 88 of the Code of Criminal Procedure, affirming that the word 'may' does not impose an ... Interpretation of statute - Section 88 of the Code - whether it was obligatory for the Court to release the appellant by accepting the bond under Section 88 Cr.P.C. on the ground that he was not arrested during investigation or the Court has rightly exercised its jurisdiction under Section 88 in rejecting the application filed by the appellant praying for release by accepting the bond under Section 88 Cr.P.C.? HELD THAT:- Section 88 of the Cr.P.C. does not confer any right on any person, who is present in a Court. Discretionary power given to the Court is for the purpose and object of ensuring appearance of such person in that Court or to any other Court into which the case may be transferred for trial. Discretion given under Section 88 to the Court does not confer any right on a person, who is present in the Court rather it is the power given to the Court to facilitate his appearance, which clearly indicates that use of word ‘may’ is discretionary and it is for the Court to exercise its discretion when situation so demands. It is further relevant to note that the word used in Section 88 “any person” has to be given wide meaning, which may include persons, who are not even accused in a case and appeared as witnesses. The present is not a case where accused was a free agent whether to appear or not. He was already issued non-bailable warrant of arrest as well as proceeding of Sections 82 and 83 Cr.P.C. had been initiated. In this view of the matter he was not entitled to the benefit of Section 88. The word ‘may’ used in Section 88 confers a discretion on the Court whether to accept a bond from an accused from a person appearing in the Court or not. The both Special Judge, C.B.I. as well as the High Court has given cogent reasons for not exercising the power under Section 88 Cr.P.C. - there is no infirmity in the view taken by the Special Judge, C.B.I. as well as the High Court in coming to the conclusion that accused was not entitled to be released on acceptance of bond under Section 88 Cr.P.C. We thus do not find any error in the impugned judgment of the High Court. There are two reasons due to which we are unable to accept the request of the appellant to consider the case of bail of the appellant in present proceeding. Firstly, this Court on two earlier occasions had granted liberty to the appellant to make an application for bail before the trial court, the appellant has not filed any application for bail before the trial court and had insisted on releasing him on acceptance of bond under Section 88 Cr.P.C. Secondly, in the facts of this case, trial court is to first consider the prayer of grant of bail of the appellant - as and when the appellant files a bail application, the same shall be considered forthwith by trial court taking into consideration his claim of disability and other relevant grounds which are urged or may be urged by the appellant before it. Appeal disposed off. Issues Involved:1. Interpretation of Section 88 of the Code of Criminal Procedure, 1973.2. Discretionary power of the court under Section 88 of Cr.P.C.3. Constitutionality of the word 'may' in Section 88 of Cr.P.C.4. Obligation of the court to release an accused on bond under Section 88.5. Application of judicial discretion in granting bail.Issue-wise Detailed Analysis:1. Interpretation of Section 88 of the Code of Criminal Procedure, 1973:The principal issue in this case is the interpretation of Section 88 of the Cr.P.C., which allows a court to require a person present in court to execute a bond for their appearance. The court examined whether the use of the word 'may' in Section 88 implies discretion or obligation. It was concluded that the word 'may' signifies judicial discretion, not compulsion, meaning the court has the authority but not the obligation to accept a bond for appearance.2. Discretionary Power of the Court under Section 88 of Cr.P.C.:The court held that Section 88 confers discretionary power on the court to accept a bond for appearance. This discretion is not an absolute right of the accused but a facilitative measure for ensuring the person's appearance in court. The court emphasized that this discretion must be exercised judiciously, considering the circumstances of each case.3. Constitutionality of the Word 'May' in Section 88 of Cr.P.C.:The appellant challenged the constitutionality of the word 'may' in Section 88, arguing it should be read as 'shall' to impose an obligation on the court. The court rejected this argument, stating that the word 'may' is used to confer discretionary power, which is consistent with legislative intent and judicial interpretation principles. The court cited various precedents to support its interpretation, including State of Uttar Pradesh Vs. Jogendra Singh and Ramji Missar & Anr. Vs. State of Bihar.4. Obligation of the Court to Release an Accused on Bond under Section 88:The appellant contended that the court was obliged to release him on bond under Section 88 since he was not arrested during the investigation. The court disagreed, noting that the issuance of non-bailable warrants and proceedings under Sections 82 and 83 Cr.P.C. indicated that the appellant was not a free agent. Thus, the court was not obligated to release him on bond under Section 88.5. Application of Judicial Discretion in Granting Bail:The court reiterated that judicial discretion in granting bail must be exercised judiciously and compassionately, as established in Dataram Singh Vs. State of Uttar Pradesh & Anr. The court noted that the appellant had not filed a bail application before the trial court despite being granted liberty to do so by the Supreme Court on two occasions. The court emphasized that the trial court should first consider the appellant's bail application, taking into account his disability and other relevant grounds.Conclusion:The Supreme Court upheld the discretionary nature of Section 88 of Cr.P.C., affirming that the word 'may' does not impose an obligation on the court to release an accused on bond. The court found no error in the decisions of the Special Judge, C.B.I., and the High Court in rejecting the appellant's application under Section 88. The appeal was disposed of with the observation that the trial court should consider the appellant's bail application expeditiously, considering his disability and other relevant factors.