TaxTMI 
TaxTMI 
2019 (12) TMI 1436
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....e framed the following questions which appeared to principally arise:- "The present application under Section 438 Cr.P.C. for anticipatory bail has been moved after rejection of a similar application by the Sessions Judge. The issue which would consequently arise would be whether the application would be maintainable since as per the provision, an order once passed shall not be construed as an interlocutory order for the purposes of the Code. Learned counsels have also referred to the views expressed by two learned Judges in Criminal Misc. Bail Application No. 44895 of 2019 [Neeraj Yadav And Another Vs. State of U.P. And 2 Others] and Bail Application No. 6478 of 2019 [Harendra Singh @ Harendra Bahadur Vs. The State of U.P.]. According to learned counsels since the statute confers concurrent jurisdiction, it would be incorrect for the Court to take the view that the applicant must first exhaust the remedy before the Sessions Court before applying to the High Court. The perceived inconsistency is addressed on the basis of the views expressed on the two applications aforementioned. The third issue which would arise for consideration would be that if the Court were t....
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.... (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1)." The said provision as re-enacted in 2019 reads thus:- "438. Direction for grant bail to person apprehending arrest.- (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after ta....
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....ng not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (4) On the date indicated in the interim order under sub-section (2), the Court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm, modify or cancel the interim order. (5) The High Court or the Court of Session, as the case may be, shall finally dispose of an application for grant of anticipatory bail under sub-section (1), within thirty days of the date of such application; (6) Provisions of this section shall not be applicable,-- (a) to the offences arising out of,-- (i) the Unlawful Activities (Prevention) Act, 1967; (ii) the Narcotic Drugs and Psychotropic Substances Act, 1985; (iii) the Official Secret Act, 1923; (iv) the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. (b) in the offences, in which death sentence can be aw....
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....efore invoking the jurisdiction of this Court under Section 438 Cr.PC C. In what circumstances can the High Court be approached directly under Section 438 Cr.P.C. D. Exceptional or Special circumstances. E. The perceived conflict between the decisions rendered in Harendra Singh @ Harendra Bahadur Vs. The State of U.P.1 and Neeraj Yadav And Another Vs. State of U.P.2 F. Impact of the Explanation to Section 438(2) Cr.P.C. G. The period for which anticipatory bail should operate. Leading submissions on behalf of the applicants, Sri Imran Ullah firstly referred the Court to the 203rd Report of the Law Commission of India submitted in December 2007. According to Sri Imran Ullah it is the recommendations contained in this report that appear to have guided the Legislature in framing Section 438 as it stands introduced in its application to the State of U.P. Taking the Court through the note on concurrent jurisdiction Sri Imran Ullah drew the attention of the Court to paragraph 6.4.1 of the report which reads thus:- "6.4.1 One of the objections raised against the amended section has been that if the applicant seeking anticipatory bail is require....
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....reby no such fetter is admitted on the powers of the High Court." After noticing the judgments rendered by different High Courts of the country it proceeded to observe as follows:- "6.4.19 There are a lot many more cases on the above aspects. Suffice it to say that the section has generated much litigation that could have been avoided. There are certain other provisions in the Code which have vested concurrent jurisdiction in the High Court and the Court of Session. For example, both the High Court and the Court of Session have concurrent jurisdiction of revision under Section 397. However, under Section 397 if a person approaches either of these Court, he cannot again agitate that matter by way of revision in the other Court. Whereas there seems to be justifiable reason for conferring concurrent jurisdiction on the High Court and the Court of Session, yet the person seeking anticipatory bail should have been given an option on the lines of Section 397(3). Accordingly, if he approaches either of these two Courts, he should not be allowed again to seek the same relief by way of a substantive application under Section 438 in the other Court. It may be noted as obser....
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....decided cases. (See Shivasubramanyam Vs State of Karnataka and another, 2002 Cri.L.J. 1998; Y. Chendrasekhara Rao Vs Y.V. Kamala Kumari, 1993 Cri.L.J. 3508 (A.P.); Rameshchandra Kashiram Vora Vs State of Gujarat, 1988 Cri.L.J.210 (Guj.). However, it is not readily discernible as to why same relief or facility has been made available to same persons at the hand of two different judicial forums one after another in exercise of their respective original jurisdiction when efficacious remedy is otherwise available against the order of the Court which may have been chosen by an applicant for relief in the first instance. One fails to understand as to why a provision on the lines of Section 397(3) has not been made in Section 438 whereby once the applicant has availed his option to choose one of the two alternative forums, his recourse to the other forum is foreclosed, if he fails to get the desired relief from the forum he has earlier chosen. Thus, if a person moves the Court of Session for anticipatory bail and fails to get it, then why he should again be allowed to file another substantive application to anticipatory bail to High Court instead of revision, or, as the case may be, appea....
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....actices whereby recourse is sometime taken to the powers of revision of the High Courts against orders of Courts of Session declining anticipatory bails and in other cases inherent powers of the High Courts are invoked in such matters. The High Courts exercise their inherent powers to redress the grievance of the aggrieved person or to prevent the use of the process of the Court and to secure the ends of justice or to prevent miscarriage of justice or illegal exercise of jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 or underArticle 227 in exceptional cases. [See Shyam M. Sachdev Vs State and another, 1991 Cri.L.J. 300 (Delhi)]; Ram Prakash Vs State of H.P. 1979 Cri.L.J. 750 (HP); Bhola and others Vs State 1979 Cri.L.J. 718 (Allahabad); Kamal Krishna De Vs State 1977 Cri.L.J. 1492 (Calcutta)]. The Supreme Court in a number of cases has laid down the scope and ambit of the powers of the courts underSection 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone if exists, or to prevent abuse of the process of the court. Inherent power under Section 482 Cr.P.C. can be ....
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....to extend the benefit of revision by suitably amending the law. It may be noted that the amended provision envisages passing of ad interim order on an application for anticipatory bail application in the first instance, followed by a final order after hearing the Public Prosecutor. Besides, such an application need not necessarily be filed in any pending case as registration of a FIR is not considered necessary. To add to it, the applicant may not be ultimately put up for trial if the investigation of the case does not reveal any materialagainst the applicant. In such a scenario, the final order on the application may not be in the nature of interlocutory as the case may stand disposed of finally. Besides, the use of legal fiction is not unknown to Law and it is quite often applied to meet a given exigency or to secure certain ends. It is thus legally feasible to expressly provide in the Law that final orders on an anticipatory bail application may not be construed as interlocutory for the purposes of the Code. And, we recommend accordingly." In conclusion the Law Commission summarised the position in paragraph 6.4.21 as under:- "6.4.21 Accordingly, the position t....
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....rued as an interlocutory order for the purposes of the Code." Sri Imran Ullah then drew the attention of the Court to the Report submitted by the U.P. State Law Commission on 28 July 2009. The State Law Commission while dealing with the imperative need of reintroduction of the provisions for anticipatory bail amongst other factors also noticed the large number of cases traveling to the High Court under Section 482 Cr.P.C. as well as 226 of the Constitution in light of the hightened perception of arrest and undue harassment. Dealing with the question of concurrent jurisdiction, the State Law Commission framed its opinion in the following terms:- "8.20 As far as jurisdiction is concerned, as stated earlier, the Commission is of the opinion that: (i) Both the High Court and the Court of Session will have concurrent jurisdiction to deal with application for directions under Section 438 and it will be open to a person to move either of these two Courts at his option: (ii) Once that option is exercised and that person decides to move one of these Courts, then the person will not have any further option to move the other Court; (iii) W....
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....r as and when required; (ii) a condition that the 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; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) a condition that the person shall not leave India without the previous permission of the Court; (v) such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer-in-charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that persons, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1).)" 9.2 If an application under this sect....
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....ed by Section 438. Dealing then with the impact of the Explanation appended to sub-section (2), Sri Khan contended that the Explanation appears to be in tune with the recommendations framed by the Law Commission of India which had opined that a remedy of revision may be provisioned for in case an applicant fail to obtain relief before the Court of Sessions. According to the learned counsel, it is to overcome the hurdle on orders passed on bail applications being construed as interlocutory in character alone which appears to have guided the framing of the Explanation. It was further submitted that while an avenue to assail an order of the Court of Sessions may have been created by virtue of the Explanation, that could not be construed as barring the jurisdiction of the Court otherwise vested by Section 438. Sri Khan then referred the Court to the decision rendered by a Full Bench of the Himanchal High Court which had dealt with an identical controversy albeit in the context of anticipatory bail and a revision under Section 397 of the Code. The Full Bench of the Himanchal High Court in Mohan Lal and others etc. v. Prem Chand and others etc3 held thus:- " 10. S. 438 of the....
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....oginder Singh (supra) would not apply since the matter was being decided under S. 439. 13. We have given our earnest consideration the reason given in Joginder Singh's case. We are afraid we cannot agree with that view. When a person makes an application for anticipatory bail in the High Court after a similar application of his has been rejected by the Sessions Judge, he does not invoke the revisional jurisdiction of the High Court but applies under S. 438. Assuming that revisional jurisdiction is invoked, we are not prepared to hold that Sessions Judge's order refusing anticipatory bail is an interlocutory order. " It ultimately recorded its conclusion as follows:- "15. Our answers to the questions referred to the Full Bench are that persons can apply for revision or anticipatory bail to the High Court direct without first invoking the jurisdiction of the Sessions Judge." Learned counsel then referred the Court to a judgment rendered by a learned Judge of this very Court in Jagdish Kumar Vs. District Judge, Budaun and Others4 where the question which arose for consideration was the ambit of the concurrent jurisdiction conferred upon the High Court a....
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....Court under the same provision but the party opposing though may apply for retransfer before the District Judge but cannot challenge the said order under Section 115 of the Code though, however, on the principle on which Article 227 of the Constitution can be exercised he may invoke the power of superintendence conferred upon the High Court by the Constitution under Article 227 of the Constitution thereof. But if the party approaches the concurrent jurisdiction of the High Court straightaway then the applicant and Opposite Party both may approach the Supreme Court under Section 25 of the Code, if aggrieved by the order of the High Court. But once the High Court passes an order under Section 24 on an application of an unsuccessful applicant before the District Judge, the order of the District Judge stands overruled by implication on passing of the order by the High Court. As such in the facts and circumstances of the present case, the application under Section 24 of the Code before this Court is maintainable." Sri Dayashankar Mishra, learned Senior Counsel placed his submissions in the backdrop of the decision of the Constitution Bench in Gurbaksh Singh Sibbia Vs. The State of Pu....
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....ion of the Court stands barred once an application for anticipatory bail has come to be rejected by the Sessions Court. Sri Vimlendu Tripathi, learned counsel addressed submissions on similar lines and contended that the rights of an individual where issues of personal liberty are raised cannot be curtailed by way of statutory interpretation. It was also submitted that any view taken to the contrary would clearly fall foul of the dictum laid down by the Full Bench of this Court in Onkar Nath Agrawal And Others Vs. State7. It was submitted further that since the Full Bench had clearly ruled that a bail application under Section 438 may be moved in the High Court without the applicant being forced to take recourse to the Court of Sessions, the decision rendered in Harendra Singh @ Harendra Bahadur Vs. The State of U.P.8 was per incuriam. Sri Saghir Ahmad learned Senior Counsel adopting and elaborating upon the submissions noted above, drew the attention of the Court to a decision rendered by a Full Bench of the Calcutta High Court in Diptendu Nayek Vs. State of West Bengal9. According to learned Senior Counsel the aforesaid authority had in unequivocal term answered the questio....
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....rocedure, but with regard to Section 439, Code of Criminal Procedure, they are of the view that "or" has been used in the non-alternative sense equivalent to "and". The reasoning for accepting one meaning in one case and another meaning in another case for the same word "or" appears to be obscure. It seems that there should not be any exclusive concentration on grammar, as thereby we might lose contact with the current of thoughts communicated by the language. It has been shown before that the word "or" is capable of elasticity even according to grammatical constructions. Such being the position, the real attention should be focused on the intendment of the provision, making a broad reading of the Section itself and placing it in juxtaposition with the other comparable provisions. It seems that the legislators did not intend to exclude the one or the other of the two Courts-the High Court or the Court of Session. Had it been so intended, the legislators would have taken care to express that clearly, as they have done in sub-Section (3) of Section 397 and sub-Section (3) of Section 399 of the Code of Criminal Procedure. Mr. Chowdhury has argued that the word "or" occurring in Sectio....
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....ection 438 may be moved in the High Court without the applicant taking recourse to the Court of Session. The question referred to the Full Bench was whether the application for anticipatory bail under Section 438 of the Code of Criminal Procedure was maintainable in the High Court without such an application having been moved and rejected by the Court of Session. The answer to the question, as indicated earlier, is in the affirmative. So it is implied that an application can be moved in the Court of Sessions Judge, and then after being rejected, in the High Court. We are incline to accept the ratio of the decisions of the Himachal Pradesh, Kerala and the Allahabad High Courts. For the reasons mentioned before, we are not inclined to accept the decision of the Division Bench of the Calcutta High Court, reported in 1979 Cr. LJ 288. 24. Thus the conclusion is reached that a party, after unsuccessfully moving the Court of Session for anticipatory bail can again approach the High Court for the same purpose, as that is not expressly or by implications barred. The view of Khastgir, J. in the Division Bench out of which this reference arises is the correct view. The matter should ....
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....nce before us is an affirmative one, then we get two alternatives, any one of which may be chosen without the other being considered at all. In such a case it must be held that a penalty exceeding Rs. 1,000 can be imposed. 14. If,. However, the sentence is a negative one, then the position becomes different. The word "or" between the two clauses would then spread the negative influence over the clause following it. This rule of grammar is not in dispute. In such a case the conditions of both the clauses must be fulfilled and the result would be that the penalty that can be imposed can never exceed Rs. 1,000. " Sri Yadav however submitted that the insertion of the Explanation to sub section (2) is clearly indicative of the intent of the Legislature to bar a second application before this Court once a prayer for anticipatory bail had come to be rejected by the Court of Sessions. According to Sri Yadav once the Court of Sessions has proceeded to reject a prayer for anticipatory bail, the only remedy available to an individual would be to assail the same by way of revision. Sri I.P. Srivastava and Sri Vikas Sahai learned A.G.As. have contended that the provisions of Sect....
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.... to the individual to exercise a choice to move either the High Court or the Court of Sessions for consideration of a prayer for grant of anticipatory bail. The Court consequently finds itself unable to either recognize or read that provision as mandating the Court of Sessions being necessarily moved in the first instance before the jurisdiction of this Court is invoked. The Court also finds itself unable to discern any legislative intendment that may support the contention that the jurisdiction of this Court may be invoked only once an applicant has exhausted the remedy as available before the Court of Sessions. More importantly, it must be borne in mind that a bar to the jurisdiction of a superior Court should neither be and cannot be readily inferred. For the purposes of identifying such a bar to actually exist, it must be apparent and clearly evidenced either from a reading of the statute itself or from a specific provision made in this respect. Insofar as Section 439 Cr.P.C. goes, undisputedly a practice appears to have evolved over the decades of parties approaching the Sessions Court by way of an application for bail initially and only after its disposal to move the High ....
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....proceedings are also likely to be less expensive. The High Court is a superior Court and its time would not be unnecessarily spent in examining the record and in some cases even considering the evidence, when a subordinate court has already considered the matter and made its report. Further, the High Court would have the opinion of another Court before it which would be of help. In practice no great harm is likely to be suffered by the accused, if he is required to go to the District Magistrate or the Sessions Judge in the first instance. When a practice of this kind becomes well known to the members of the Bar in the Mofussil and in the High Court the accused would be advised to approach the subordinate court forthwith and not attempt to file a revision in the High Court direct. In many cases, if the District Magistrate or the Sessions Judge reports in favour of the accused, be need not be represented in the High Court, particularly when the illegality of the conviction or the severity of the sentence is patent. On the other hand, if such a salutary rule of practice were not to prevail, there would be a temptation, and even an encouragement, to accused persons to come up straight ....
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.... it is called upon to interpret a provision that has a direct relation to the issue of personal liberty of an individual. It would, therefore, be manifestly incorrect for the Court to invent or construct restrictions on the discretion so conferred reading constraints in the statute which otherwise do not exist. The exercise of discretion as conferred by Section 438 Cr.P.C. was eloquently explained by the Constitution Bench in Sibbia as under: - "13. This is not to say that anticipatory bail, if granted, must be granted without the imposition of any conditions. That will be plainly contrary to the very terms of Section 438. Though sub-section (1) of that section says that the court "may, if it thinks fit" issue the necessary direction for bail, sub-section (2) confers on the court the power to include such conditions in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in clauses (i) to (iv) of that sub-section. The controversy therefore is not whether the court has the power to impose conditions while granting anticipatory bail. It clearly and expressly has that power. The true question is whether by a pr....
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....rocedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not be found therein." The discretion so wisely conferred by Section 438 Cr.P.C. consequently should not be shackled or cabbined by judicial artifices or the interpretative construction of barriers not otherwise placed by the statute. This position is also evident from the conclusions recorded by the Full Bench of this Court in Onkar Nath Agrawal. The Court deems it apposite to extract the following parts of the decision rendered therein:- "6. The words 'that Court may, if it thinks fit. direct etc.' make it also clear that the Sessions Judge or the High Court thus a discretionary power to give a direction for release of the applicant on bail. It does not lay down any condition on the existence of which bail can be granted. When a tribunal is invested by an Act or by rules with discretion without any indication in the Act or rules of the grounds upon which the discretion is to be exercised, the Courts have declined to lay down any rules with a view to indicate the particular grooves in which the discretion should ru....
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....the matter." 17. In the case of Shivasubramanyam Vs. State of Karnataka and another; 2002 CRL.LJ 1998, the Karnataka High Court has re-iterated the abovesaid principles and ultimately held that the application filed under Section 438 of Cr.P.C. directly to the High Court is maintainable only under exceptional and under special circumstances, but not as a routine and the party cannot come before the Court as a matter of right. 18. By looking into the abovesaid discussions, I am of the opinion that the party has to approach the Sessions Court first and then he has to approach the High Court which is the normal course. But the courts have also observed that in extraordinary circumstances with special reasons, the party can also approach the High Court. The High Court cannot entertain Section 438 of Cr.P.C. as a matter of routine without examining whether there are any special reasons or special circumstances to entertain the said application. 19. In the case of Sri Kwmta Gwra Brahma Vs. State of Assam (Bail No.3024 of 2014), The Gauhati High Court has also expressed similar view and held that the party has to approach the Court of Sessions first under Sectio....
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.....C. so that the High Court can bestow its precious time to deal with other pending cases which requires serious attention and expeditious disposal, where the parties who have come to the High Court after exhausting remedy before the Magistrate Court or the Sessions Court for grant of bail and for other reliefs. ...... 24. It is also worth to note here that the Sessions Court and the High Court are concurrently empowered to grant bail under Section 438 of Cr.P.C. The object is that if the party who is residing in the remote area can directly approach the Sessions Court which is easily accessible. In order to obviated the very object and purpose, the party has to explain why he did not go to that Court. Otherwise, it amounts to making that provision redundant, so far as the Sessions Courts are concerned. Even once again re-looking into structure of Section 438 of Cr.P.C., it is purely the discretionary power given to the Court to entertain the Petition. It is the discretion given to the Courts to exercise that power. When discretion vests with Court, the party has to explain why he has come to the High Court directly, for the discretionary relief under the said prov....
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....ing of the aforesaid two decisions, it is manifest that all that was intended was to put in place a rule of abstinence and require the individual to establish the existence of special and compelling circumstances constraning him to move the the High Court in the first instance. On an overall analysis of those decisions, it may, therefore, be conclusively held that while there exists no fetter or restriction upon the High Court entertaining an application under Section 438 Cr.P.C. directly it would ultimately depend upon the discretion of the Judge available to be exercised in the facts and circumstances of each case and upon finding special circumstances which warrant this Court to invoke its jurisdiction in the first instance rather than relegating the party to the Court of Sessions. QUESTION D - Exceptional or Special Circumstances Harendra Singh leaves a window open with the learned Judge observing that requiring the party to invoke the jurisdiction conferred on a Court of Sessions must be recognized as the normal course and the High Court entitled to be moved only in extraordinary circumstances and special reasons. The learned Judge further went on to observe in the ultimate....
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....tion Bench:- "13. This is not to say that anticipatory bail, if granted, must be granted without the imposition of any conditions. That will be plainly contrary to the very terms of Section 438. Though sub-section (1) of that section says that the Court "may, if it thinks fit" issue the necessary direction for bail, sub-section (2) confers on the Court the power to include such conditions in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in clauses (i) to (iv) of that sub-section. The controversy therefore is not whether the Court has the power to impose conditions while granting anticipatory bail. It clearly and expressly has that power. The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute condition which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General. Our answer, clearly and emphatically, is in the ....
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....ere may be cases in which any or all of them may be disregarded. If it were otherwise, the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the court where the conditions are not based upon statutory enactment at all. It is not safe, I think, to say that the court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make the court wish it had kept a free hand." 15. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be ove....
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....es a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not be found therein" On an overall consideration of the above the Court is of the considered view that Harendra Singh when interpreted and understood in the manner indicated above, rightly balances the issues that arise. While it was urged that the aforesaid decision would be per incuriam the views expressed by our Full Bench in Onkar Nath Agarwal and the decision of the Constitution Bench in Sibbia, this Court finds no merit in that submission since as noted above, even Onkar Nath Agarwal had envisaged situations where the High Court may relegate parties to the Court of Sessions and refuse to invoke its jurisdiction. Insofar as Sibbia is concerned, it becomes relevant to bear in mind that the Constitution Bench was not dealing with the issue that arises for our consideration directly. The observations with regard to the exercise of discretion as appearing therein were entered in the context of the principles formulated by the Full Bench of the Punjab and Haryana High Court relating to the exercise of power under Section 438 ....
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.... of anticipatory bail. QUESTION E - The perceived conflict between the decisions rendered in Harendra Singh @ Harendra Bahadur Vs. The State of U.P.11 and Neeraj Yadav And Another Vs. State of U.P Turning then to the issue of the perceived conflict between the views expressed in Harendra Singh and Neeraj Yadav, it becomes pertinent to note the following aspects. While Harendra Singh fails to notice the decision of the Full Bench in Onkar Nath Agrawal, the conclusions ultiamtely recorded by the learned Judge are in tune with what was ultimately laid down as the law by the Full Bench. It must also be borne in mind that Neeraj Yadav is firstly not a judgment but an interlocutory order. Although the same came to be passed after the final judgment was rendered in Harendra Singh, the learned Judge has not noticed the principles expounded in Harendra Singh. Notwithstanding these aspects surrounding the decisions aforementioned, this Court is of the firm view that there is essentially no conflict in the two decisions. While the the Full Bench in Onkar Nath Agrawal did hold that an application for anticipatory bail may be moved in the High Court without the applicant taking recourse to t....
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....nd are to be viewed as final in character and in any case and for the purposes of the Code not to be construed as interlocutory orders. As this Court reads the Explanation, it appears that the legislative intent was for the creation of a remedy to a party aggrieved by an order either rejecting the anticipatory bail application or an interim order of protection made thereon. The principal remedy under the Code against orders made in proceedings taken therein stands enshrined in Section 397 which creates the remedy of a revision. A revision is liable to be preferred only against a final order as distinct from an interlocutory order made in the course of proceedings. Ordinarily and as is well settled an order granting or refusing bail has always been understood as being interlocutory in nature. This since and as has been repeatedly held an order on an application of bail is ordinarily interim and temporary in character. It is always open to a party to revive a prayer for the grant of bail notwithstanding the rejection of an earlier application. No finality stands attached to an order granting or refusing bail since it can always be renewed from time to time. The legislative intent und....
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....ot lead this Court to hold that it denudes this Court of the jurisdiction to entertain and decide an application for anticipatory bail notwithstanding a similar application having been denied by the Court of Sessions. The mere creation of a remedy cannot be read as debarring the jurisdiction of a superior Court. There must necessarily be an express legislative command and intendment in support of such a contention. The Court also bears in mind that while the Law Commission Reports did recommed the insertion of a provision denying the right of a second application for grant of anticipatory bail, that recommendation was not accepted. The Legislature while having the benefit of both those reports, chose not to introduce such a restriction. This only leads the Court to hold that there was a conscious decision to not introduce such a restraint and consequently the right of the High Court to entertain a prayer for anticipatory bail notwithstanding the rejection of such a prayer by the Court of Sessions stands preserved and affirmed. On an overall analysis of the aforesaid legal position, it is therefore evident that while the Explanation may have created an avenue for an aggrieved per....
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....t this need not be followed as an invariable rule. The normal role should be not to limit the operation of the order in relation to a period of time." Subsequently, in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others13, the learned Judges of the Supreme Court summarize the legal position in the following terms: "94. The proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case. 95. The order granting anticipatory bail for a limited duration and thereafter directing the accused to su....
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....e trial. 20. Section 438 CrPC contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge-sheet, the accused has to surrender to the custody of the court and pray for regular bail. On the strength of an order granting anticipatory bail, an accused against whom charge has been framed, cannot avoid appearing before the trial court. 21. If what has been submitted on behalf of the appellant that Respondent 1 has never appeared before the trial court is to be accepted, it will lead to the absurd situation that charge was framed against the accused in his absence, which would defeat the very purpose of sub-section (2) of Section 240 CrPC." Again and more recently, three learned Judges in Satpal Singh Vs. The State of Punjab15 held: "14. In any case, the protection under Section 438, Cr.P.C. is available to the accused only till the court summons the accused based on the charge sheet (report under Section 173(2), Cr.P.C.). On such appearance, the accuse....
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....nvestigating 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. xxx xxx xxx xxx 40. We have said that there is one proposition formulated by the High Court with which we are inclined to agree. That is proposition (2). We agree that a ''blanket order' of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, requires the applicant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable....
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....r in relation to a period of time. 43. During the last couple of years this Court, while dealing with appeals against orders passed by various High Courts, has granted anticipatory bail to many a person by imposing conditions set out in Section 438(2) (i), (ii) and (iii). The court has, in addition, directed in most of those cases that (a) the applicant should surrender himself to the police for a brief period if a discovery is to be made under Section 27 of the Evidence Act or that he should be deemed to have surrendered himself if such a discovery is to be made. In certain exceptional cases, the court has, in view of the material placed before it, directed that the order of anticipatory bail will remain in operation only for a week or so until after the filing of the FIR in respect of matters covered by the order. These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The court has attempted through those orders to strike a balance between the individual's right to personal freedom and the investigational rights of the police. The appell....
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....438 Cr.P.C. be circumscribed or be recognised to be moved only in exceptional situations it would again amount to fettering and constricting the discretion otherwise conferred by Section 438 Cr.P.C. Such a construction would be in clear conflict of the statutory mandate. The ratio of Harendra Singh must be recognised to be the requirement of establishing the existence of special, weighty and compelling reasons and circumstances justifying the invocation of the jurisdiction of this Court even though a wholesome avenue of redress was available before the Court of Sessions D. What would constitute "special circumstances" in light of the nature of the power conferred, must be left to be gathered by the Judge on a due evaluation of the facts and circumstances of a particular case. It would be imprudent to exhaustively chronicle what would be special circumstances. It is impossible to either identify or compendiously postulate what would constitute special circumstances. Sibbia spoke of the "imperfect awareness of the needs of new situations". It is this constraint which necessitates the Court leaving it to the wisdom of the Judge and the discretion vested in him by statute. E. ....
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....tri Agarwal case [(2009) 8 SCC 325 : (2009) 3 SCC (Cri) 683] , SCC pp. 333-34, para 24) "24. ... (ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere ''fear' is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively. Specific events and facts must be disclosed by the applicant in order to enable the court to judge the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section. *** *** *** *** (vii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under ....