2004 (10) TMI 635 - HC - Indian Laws

Arrest Not Mandatory for Cognizable Offences; Emphasis on Judicial Discretion in Bail Applications.

Amarawati And Anr. (Smt.) Versus State Of U.P.

The HC concluded that arrest is not mandatory when a cognizable offence is disclosed, emphasizing discretion per Joginder Kumar's precedent. It determined ... Power of high court to grant bail application - Whether the arrest of the accused is a must if a cognizable offence is disclosed in the FIR or complaint - Whether the High Court can direct Subordinate Courts to decide the bail application on the same day it is filed - HELD THAT:- We make it clear that the learned Sessions Judge in his discretion can hear and decide the bail application u/s 439 on the same day of its filing provided notice is given to the Public Prosecutor, or he may not choose to do so. This is entirely a matter in the discretion of the learned Sessions Judge. There may also be cases where the learned Sessions Judge on the material available before him may decide to grant interim bail as he may feel that while he has sufficient material for giving interim bail he requires further material for grant of final bail. In such cases also he can in his discretion, grant interim bail and he can hear the bail application finally after a few days. All these are matters which should ordinarily be left to his discretion. As regards power to grant interim bail we agree with the view of the Hon'ble B.M. Lal, J in Dr. Vinod Narain's case [1995 (2) TMI 480 - ALLAHABAD HIGH COURT - LB] that such power is implicit in the power to grant bail, and we disagree with the view expressed by Hon'ble Palok Basu, J. in the aforesaid decision. The view we are taking would make the provisions for grant of bail in the CrPC in conformity with Article 21 of the Constitution, particularly since the provision for granting anticipatory bail has been deleted in U.P. Thus, we answer the questions referred to the Full Bench as follows : (1) Even if cognizable offence is disclosed, in the FIR or complaint the arrest of the accused is not a must, rather the police officer should be guided by the decision of the Supreme Court in Joginder Kumar v. State of U.P.[1994 (4) TMI 385 - SUPREME COURT] before deciding whether to make an arrest or not. (2) The High Court should ordinarily not direct any Subordinate Court to decide the bail application the same day, as that would be interfering with the judicial discretion of the Court hearing the bail application. However, as stated above, when the bail application is u/s 437. CrPC ordinarily the Magistrate should himself decide the bail application the same day, and if he decides in a rare and exceptional case not to decide it on the same day, he must record his reasons in writing. As regards the application u/s 439, CrPC it is in the discretion of the learned Sessions Judge considering the facts and circumstances whether to decide the bail application the same day or not, and it is also in his discretion to grant interim bail the same day subject to the final decision on the bail application later. (3) The decision in Dr. Vinod Narain v. State of UP. [1995 (2) TMI 480 - ALLAHABAD HIGH COURT - LB] is incorrect and is substituted accordingly by this judgment. Issues Involved:1. Whether the arrest of an accused is a must if a cognizable offence is disclosed in the FIR or in a criminal complaint.2. Whether the High Court can direct the Subordinate Courts to decide the Bail Application on the same day it is filed.3. Whether the case Dr. Vinod Narain v. State of U.P., Writ Petition No. 3643 of 1992, has been correctly decided by the five Judges Full Bench of this Court.Summary:Issue 1: Whether the arrest of an accused is a must if a cognizable offence is disclosed in the FIR or in a criminal complaint.The court examined Article 21 of the Constitution of India, which guarantees that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The court referred to the Supreme Court's decision in Maneka Gandhi v. Union of India, which overruled the earlier decision in A. K. Gopalan v. Union of India, holding that the procedure must be fair, reasonable, and just. The court noted that all provisions in the CrPC must be construed in accordance with this interpretation of Article 21. The court discussed various sections in Chapter V of the CrPC, particularly Section 41, which empowers a police officer to arrest any person without an order from a Magistrate and without a warrant. Section 2(c) of the CrPC defines a cognizable offence as one for which a police officer may arrest without a warrant. The court emphasized that the word 'may' in Section 41 cannot be interpreted as 'must' or 'shall.' The court cited the Supreme Court's observation in Joginder Kumar v. State of U.P. that no arrest can be made in a routine manner on a mere allegation of commission of an offence. The court concluded that the arrest of the accused is not a must if a cognizable offence is disclosed, and the police officer should be guided by the decision in Joginder Kumar's case before deciding whether to make an arrest or not.Issue 2: Whether the High Court can direct the Subordinate Courts to decide the Bail Application on the same day it is filed.The court examined the provisions for granting bail under Sections 437 and 439 of the CrPC. It noted that while there is no provision for giving notice to the Public Prosecutor in Section 437, there is such a requirement in Section 439. The court emphasized that in Section 437, the Magistrate should ordinarily decide the bail application the same day, except in rare cases where reasons for adjourning the hearing must be recorded in writing. The court held that the High Court should ordinarily not direct any Subordinate Court to decide the bail application the same day, as that would interfere with the judicial discretion of the court hearing the bail application. However, the learned Sessions Judge, in his discretion, can hear and decide the bail application under Section 439 on the same day of its filing, provided notice is given to the Public Prosecutor.Issue 3: Whether the case Dr. Vinod Narain v. State of U.P., Writ Petition No. 3643 of 1992, has been correctly decided by the five Judges Full Bench of this Court.The court reviewed the decision in Dr. Vinod Narain v. State of U.P., where it was held that the time schedule for concluding bail proceedings cannot be fixed by issuing directions under Article 226 of the Constitution. The court disagreed with the observation made by Hon'ble Palok Basu, J. in the same case that arrest of the accused or suspect is a 'must' once a cognizable offence is disclosed. The court concluded that the decision in Dr. Vinod Narain v. State of U.P. is incorrect and substituted it accordingly with the present judgment.