TaxTMI 
TaxTMI 
2004 (10) TMI 635
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.... reasons recorded separately this Full Bench unanimously holds that in exercise of power under Article 226 of the Constitution, while issuing direction and command to the Magistrate or the Court of Sessions as the case may be, to consider the bail application time schedule for concluding the bail proceedings cannot be fixed. Consequently, the decision rendered in Dr. Hidayat Hussain Khan v. State of U.P., is overruled and the decision rendered in Writ Petition No. 919 of 1992, Noor Mohd. v. State of U.P. and others, is upheld." 3. In the same judgment Hon'ble Palok Basu, J. observed (in Paragraph 183) : "Once disclosure of cognizable offence is made, arrest of the accused or suspect is a "must" for there is no other known method by which he may be brought before the Court for trial. The words "if necessary" in Section 157 may at best make available a discretion to an Investigating Officer in a given case to defer arresting an accused or suspect if there is reasonable doubt about his identity. It is not possible to subscribe to the view that the word 'arrest' is made discretionary or that any other connotation may be extendable than what is noted in the prece....
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....tate of A.P. [1993]1SCR594 ; Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 and AIR 1980 SC 1579, etc.]. 9. All the provisions in the CrPC have hence to be construed in accordance with the new interpretation of Article 21 of the Constitution as laid down in Maneka Gandhi's case (supra). 10. It may be mentioned that according to the theory of Jurisprudence of the eminent jurist Kelsen (The Pure Theory of Law), in the legal system of ever)1 country there is a hierarchy of laws and if there is conflict between a higher law and a lower law then the higher law will prevail (sec Kelscn's The General Theory of Law and State). In our Constitution the hierarchy is as follows : 1. The Constitution of India. 2. Statutory Law, which may either be made by Parliament or by the State Legislature. 3. Delegated or subordinate legislation e.g. rules made under a statute, regulations made under a statute, etc. 4. Government Orders, Executive and Administrative Instructions, etc. 11. The IPC and CrPC are in the second layer of this hierarchy of laws in our legal system, and hence if any provision of the IPC or CrPC seems to violate the provisions i....
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.... (i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specified the person to be arrested and the offence or other cause for which the arrest is to be made and it ' appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. (2) Any officer-in-charge of a police station may, in like manner, arrest or clause to be arrested any person, belonging to one or more of the categories of persons specified in Section 109 or Section 110. 15. Section 2(c) of the Code of Criminal Procedure defines the cognizable offence: "2(c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without Warrant." 16. The definition of cognizable offence clearly indicates that police officer may "arrest without warrant" and not that he must arrest. 17. Section 157(1), CrPC provides "If, from information received or otherwise, an officer-in-charge of a police station has re....
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....igation as to the genuineness and bonafides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest." 21. In view of the above discussion and the observations made by the Apex Court in the case of Joginder Kumar (supra), the observations made by Hon'ble Palok Basu, J. in the case of Dr. Vinod Narain (supra) in Paragraph 183 that once disclosure of cognizable offence is made, arrest of the accused or suspect is a "must" are incorrect and the said decision has not laid down the correct law. 22. The second question referred to this Bench is whether the High Court can direct the Subordinate Courts to decide the bail application on the same day it is filed. 23. Chapter XXXIII of the Code of Criminal Procedure deals with the provisions as to bail and bonds. 24. The provisions for granting bail by the Magistrate are provided in Section 437, CrPC which reads as under: "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....
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.... to custody." 26. A perusal of the above-mentioned sections for bail indicate that whereas in Section 437, CrPC there is no provision for any notice of the application for bail to the Public Prosecutor, in Section 439, CrPC however it is specifically mentioned that before granting bail to a person notice of the application for bail to the Public Prosecutor is required, unless for reasons to be recorded in writing, the Court is of opinion, that it is not practicable to give such notice. 27. In Section 437, CrPC the provision for notice is not given because there are specific provisions under the Code of Criminal Procedure which provide that all the relevant material relating to the case is produced or available before the Magistrate. Thus Section 157, CrPC provides that an officer-in-charge of the police station shall forthwith send a report of the same to a Magistrate who is empowered to take cognizance of the offence. In Section 167, CrPC it is provided that "whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57 and there are grounds for believing that the ....
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.... illegal as it is against the decision of the Supreme Court in Joginder Kumar's case, and it is also in violation of Article 21 of the Constitution as well as Section 157(1), CrPC gives a police officer discretion to arrest or not, but this discretion cannot be exercised arbitrarily, and it must be exercised in accordance with the principles laid down in Joginder Kumar's case (supra). The view of Hon'ble Palok Basu, J. in this connection is hence clearly incorrect. 33. It may be mentioned that the provision for anticipatory bail has been deleted by an amendment in U.P. It is well known that in U.P. criminal trials often take five years or sometimes even more to complete, and hence the question arises is that if an accused is found innocent after this long interval who will restore these five years or so of life to him if he is not granted bail? 34. It may be mentioned that a person's reputation and esteem in society is a valuable asset, just as in civil law it is an established principle that goodwill of a firm is an intangible asset. In practice, if a person applies for bail he has to surrender in Court, and normally the bail application is put up for hearing....
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....on under Section 439. 39. In Ramesh Chandra Kapil v. High Court of Judicature at Allahabad 1984 UPCR 159, the Court referred to the Latin Maxim 'CURSUS CURLAF LEX CURAE' which means "every Court is the guardian of its own records and of its practice". 40. There may be cases, for instance, where a totally false and frivolous FIR has been filed against a judicial or administrative officer or a reputed citizen merely because of enmity or to damage his reputation or to black-mail him. If the hearing of the bail application is adjourned even for a few days he will have to remain in jail and his reputation may be irreparably tarnished, even if subsequently he is granted bail. In our opinion the learned Judge hearing the bail application, in his discretion, may in such a case give a very short time for the hearing after notice is given to the Public Prosecutor, and he may, in his discretion hear the bail application under Section 439 on the same day when it is filed. After all, giving notice merely means giving copy of the bail application to the Public Prosecutor so that he may have an opportunity to be heard in reply and place the material facts before the Court. There may....
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.... deleted in U.P. 43. It may be mentioned that the Supreme Court in A.R. Antulay v. U.S. Nayak 1992CriLJ2717 and Raj Deo Sharma v. State of Bihar 1998CriLJ4596 . has held that the right of speedy justice is a fundamental right as envisaged under Article 21 of the Constitution. The interpretation we are giving above to the provisions in the CrPC are hence in conformity with Article 21 of the Constitution as interpreted by the Supreme Court. 44. We may also examine Section 167, CrPC Section 167(2) of Code of Criminal Procedure provides : "167. Procedure when investigation cannot be completed in twenty-four hours.-(1). (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction : Provided that. (a) the Magistrate may authorise th....