TaxTMI 
TaxTMI 
2018 (2) TMI 1943
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....e High Court, it is necessary to note a series of litigations initiated at the instance of the appellant in different courts, arising out of criminal proceeding lodged against him. 3. A First Information Report under Sections 120-B, 409, 420, 466, 467, 469 and 471 of Indian Penal Code and under Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 was lodged against one Yadav Singh, the then Chief Engineer of Noida, Greater Noida and the Yamuna Expressway Authorities and a charge sheet dated 15.03.2016 being Charge Sheet No.02/2016 was submitted in the Court of Special Judge, C.B.I. against several accused including Yadav Singh and the appellant Pankaj Jain. The trial court took cognizance by order dated 29.03.2016 summoning accused for 29.04.2016 for appearance. The appellant filed an application under Section 482 Cr.P.C. in the Allahabad High Court being Application No. 31090 of 2016, praying for quashing the entire criminal proceeding of Special Case No. 10 of 2016 as well as summoning order dated 29.03.2016. The application was finally disposed off by the High Court vide order dated 17.10.2016 with a direction that if the applicant appears and surrenders before....
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.... (appellant), who was not arrested during investigation by the C.B.I., has to simply surrender and give a bond under Section 88 of the Code of Criminal Procedure. A direction to that effect was sought for by this Court. This Court disposed of the writ petition vide its order dated 06.12.2017 noticing the earlier order of this Court dated 24.11.2017 with the following order:- "In view of our aforesaid orders dated 24.11.2017, we are of the opinion that the petitioner should, in the first instance, appear before the trial Court, which is the course of action already charted out. It would be open to the petitioner to move an application under Section 88 Cr.P.C. or a bail application, as may be advised. It will also be open to the petitioner to rely upon the judgments in support of his contention as noted above. It is for the trial Court to go through the matter and take a view thereupon. Insofar as this Court is concerned, no opinion on merits is expressed. Mr. Mukul Rohatgi, learned senior counsel, submits that the petitioner, who is present in the Court today, shall surrender and appear before the trial Court tomorrow, 07.12.2017. This statement of the learned senior counsel is ....
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....Article 14 and 21 of the Constitution of India or in the alternative to read it down by expounding, deliberating and delineating its scope in the context, to save Section 88 from unconstitutionally on the vice of Article 14 and 21 of the Constitution of India. (b) Issue a writ of certiorari or any other appropriate writ, order or direction, setting aside the impugned Order/s dated 07.12.2017 passed by the Trial Court i.e. Special Judge for Anti-Corruption CBI cases at Ghaziabad, with consequential relief of setting the petitioner at liberty by permitting him to furnish his Bonds under Section 88 of Cr.P.C. to the satisfaction of the said Trial Court in RC No. RC/DST/2015/A/0004/CBI/STF/DLI dated 30.07.2015. (c) Any further Order as may be in the interest of justice may also be passed by this Hon'ble Court." 8. The writ petition has been dismissed by Division Bench of the High Court vide its judgment and order dated 21.12.2017, against which judgment this appeal has been filed. 9. We have heard Shri Mukul Rohtagi, learned senior counsel appearing for the appellant and Shri Maninder Singh, Additional Solicitor General of India for the respondent. 10. Shri Mukul Rohtagi, learne....
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....ed off to apply for regular bail before the Court but inspite of taking such liberty, no application for bail was filed by the appellant. 12. We have considered the submissions of the learned senior counsel for the parties and perused the records. 13. The main issue which needs to be answered in the present appeal is as to 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. 14. Section 88 Cr.P.C. is a provision which is contained in Chapter VI "Processes to Compel Appearance" of the Code of Criminal Procedure, 1973. Chapter VI is divided in four Sections - A.-Summons; B.-Warrant of arrest; C.- Proclamation and Attachment and D.-Other rules regarding processes. Section 88 provides as follows:- 88. Power to take bond for appearance. -When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in suc....
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...." 18. Learned senior counsel for the appellant has referred to judgments of this Court in the case of State of Uttar Pradesh Vs. Jogendra Singh, AIR 1963 SC 1618 and Ramji Missar & Anr. Vs. State of Bihar, AIR 1963 SC 1088. In State of Uttar Pradesh Vs. Jogendra Singh (supra), this Court had occasion to consider the use of word 'may' in Rule 4(2) of the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947. In the above regard, in Paragraph 8 following has been stated:- "8. Rule 4(2) deals with the class of gazetted government servants and gives them the right to make a request to the Governor that their cases should be referred to the Tribunal in respect of matters specified in clauses (a) to (d) of sub-rule (1). The question for our decision is whether like the word "may" in Rule 4(1) which confers the discretion on the Governor, the word "may" in sub-rule (2) confers the discretion on him, or does the word "may" in sub-rule (2) really mean "shall" or "must"? There is no doubt that the word "may" generally does not mean "must" or "shall". But it is well settled that the word "may" is capable of meaning "must" or "shall" in the light of the context. It is....
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....g or premissive power in the sense of the usual phrase "it shall be lawful", it is also capable of being construed as referring to a compellable duty, particularly when it refers to a power conferred on a court or other judicial authority. As observed in Maxwell on Statutes: "Statutes which authorise persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they 'may', or shall, if they think fit,' or, 'shall have power,' or that 'it shall be law-ful' for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have - to say the least - a compulsory force."........................ 21. This Court noticed that in the 1958 Act, certain tests as a guidance have been laid down for exercise of discretion by the Court. The Court rejected the submission that there is unfettered discretion in the Appellate Court in exercising power under Section 11. The above case was also a c....
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....anjay Chaturvedi Vs. State, 132 (2006) Delhi Law Times 692 was also a case where earlier judgment of Delhi High Court in Court on Its own Motion Vs. Central Bureau of Investigation (supra) was followed. The said case also does not in any manner adopted the interpretation of Section 88 as contended by the appellant. 25. Another judgment of Delhi High Court in Bail Application No. 508 of 2011 Sanjay Chandra Vs. C.B.I. decided on 23.05.2011 supports the submission raised by learned Additional Solicitor General that power under Section 88 Cr.P.C., the word 'may' used in Section 88 Cr.P.C. is not mandatory and is a matter of judicial discretion. Paras 20, 21 and 22 of the judgment are to the following effect:- "20. Learned Shri Ram Jethmalani and learned Shri K.T.S. Tulsi, Sr. Advocates appearing for accused Sanjay Chandra, learned Shri Mukul Rohtagi, Sr. Advocate appearing for accused Vinod Goenka, learned Shri Soli Sorabjee and learned Shri Ranjit Kumar, Sr. Advocates appearing for accused Gautam Doshi, learned Shri Rajiv Nayar, Sr. Advocate appearing for accused Hari Nair and learned Shri Neeraj Kishan Kaul, Sr. Advocate appearing for accused Surendra Pipara, at the outset, have c....
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....es. Therefore, their case for bail falls within Section 437 of the Code of Criminal Procedure which is the specific provision dealing with grant of bail to an accused in cases of non-bailable offences. Thus, on conjoint reading of Section 88 and 437 Cr.P.C., it is obvious that Section 88 Cr.P.C. is not an independent Section and it is subject to Section 437 Cr.P.C. Therefore, I do not find merit in the contention that order of learned Special Judge refusing bail to the petitioners is illegal being violation of Section 88 Cr.P.C." 26. Another judgment which is relevant in this context is judgment of Patna High Court in Dr. Anand Deo Singh Vs. The State of Bihar & Ors., 2000(2) Patna Law Journal Reports 686. The Patna High Court had occasion to consider Section 88 Cr.P.C. where in Para 18, following has been held:- "18. In my considered view, Section 88 of the Code is an enabling provision, which vests a discretion in the Magistrate to exercise power under said Section asking the person to execute a bond for appearance only in bailable cases or in trivial cases and it cannot be resorted to in a case of serious offences. Section 436 of the Code itself provides that bond may be aske....
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....Ved Murti, AIR 1971 SC 2481 wherein it was observed that- "18.......In fact Section 91 applies to a person who is present in Court and is free because it speaks of his being bound over, to appear on another day before the Court. That shows that the person must be a free agent whether to appear or not. If the person is already under arrest and in custody, as were the petitioners, their appearance depended not on their own volition but on the volition of the person who had their custody......." Thus, in a situation like this where the accused were not arrested under section 19 of PMLA during investigations and were not produced in custody for taking cognizance, section 88 of Cr.P.C. shall apply upon appearance of the accused person on his own volition before the Trial Court to furnish bonds for further appearances." 29. 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. 30. In the Punjab & Haryana case, the High Court has relied on judgment of this....
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....bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days. 7. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory." 33. In the facts of the aforesaid case, the Court held that the trial court as well as the High Court ought to have exercised the discretion in granting the bail to the appellant. This Court in above circumstances, granted the bail to the appellant of that case. There cannot be any dispute to the proposition as laid down by this Court with regard to grant or refusal of the bail, which are well settled. The discretion to grant bail has to be exercised judiciously and in a humane manner and compassionately as has been laid down by this Court in the above case. 34. Shri Mukul Rohtagi, learned senior counsel....