TaxTMI 
TaxTMI 
1995 (2) TMI 480
X X X X Extracts X X X X
X X X X Extracts X X X X
....ender before the competent Court, and apply for bail, their bail applications will be decided by the competent Court as expediously as possible in accordance with law. B.M. Lal, J. (2A) Following question is to be answered by this Full Bench : "Whether while rejecting the writ petition filed for quashing First Information Report, this Court in exercise of its powers under Article 226 of the Constitution of India can issue a writ, order or direction in the nature of mandamus commanding the Magistrate or the Court of Session as the case may be, to consider bail application of the accused/ petitioner on the same day, in the event of failure to conclude hearing of the bail application same day, to release the accused/ petitioner on bail or on his personal bond same day, by granting interim bail pending disposal of the bail application ? 2(B) Divergent judicial views surfaced in this Court on this question. According to the view taken in_Dr. Hidavat Hussain Khan v. State of U.P. and Ors. (1992 Cri. LJ 3534), a Division Bench of this Court held that this Court can issue direction to consider bail same day and in the event of failure to do so to release the accused on in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed before a Division Bench of this Court presided over by one of us (Hon'ble Palok Basu, J.) and considering the above-mentioned conflicting views on the issue, the Bench referred matter to Hon'ble the Chief Justice for constituting a larger Bench. 10. Accordingly, this Full Bench came to be constituted to consider the question formulated above. 11. At the outset it may be mentioned that following the view taken in Dr. Hidavat Hussain Khan's case 1992 Cri.LJ 3534 (All) (Supra), number of decisions have been rendered by this Court even directing the Magistrate to dispose of the bail application during early hours of the day on priority basis so as to enable the accused to move the Sessions Court same day in the event of dismissal of his baiI application by the Magistrate and further directing even the sessions court to decide bail application on the same day and in the event of failure to do so to release the accused on interim bail pending disposal of his bail application. 12. This Full Bench heard this matter at great length. Eminent lawyers of this Court addressed this Bench for the days and weeks together and enlightened us with their ingenious arguments. Sa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ition. Issuance of such direction is not only contrary to law but also amounts to innovation of law by the Court under the garb of interpretation, which certainly is not the function of the Court, and therefore the view taken in Noor Mohammad's case (supra) be maintained overruling the dictum laid down in Dr. Hidayat Hussain Khan's case 1992 Cri LJ 3534 (All) (supra). 16. To meet the rival contentions referred to above, it is necessary to discuss relevant provisions of the Code appearing in Chapters V, VI, XII & XXXIII of the Code viz. the provisions of Section 41, 50, 57, 88, 154, 157, 167, 169, 303, 309 and 437 besides the provisions of Articles 21 and 22 of the Constitution of India, so as to find out whether the Code explicitly or impliedly gives power and jurisdiction to the Court to issue directions in the like nature as issued in Dr. Hidayat Hussain Khan's case 1992 Cri.LJ 3534 (All) (supra). 17. Provisions of Section 41 of the Code deal with a situation when police may arrest any person without warrant. It empowers the Police Officer to arrest any person without an order from Magistrate and without a warrant. Thus, arrest effected pursuant to investigation....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts of Section 304 of the Code. These safeguards have been provided because of constitutional mandateenshrined in Article 22 of the Constitution and Section 303 of the Code as the accused has a right to engage a counsel of his choice. Thus, no sooner arrest is effected, the arrestee becomes entitled to the benefit of Sub-clause (1) of Article 22 of the Constitution and Section 308 of the Code and aforesaid requirements enunciated in Sheela Barse's case (supra) and Joginder Kumar's case (1994 Cri LJ 1981 (SC)) (supra) in view of constitutional mandates of Article 22 of the Constitution and Section 50 of the Code must be observed. 22. Thus, by introducing Section 50 in the Code the Legislature has taken care of the principle that innocent person cannot be put to harassment unnecessarily without assigning any ground of arrest. Hence, this provision of Section 50 of the Code is material one which brings the provisions of the Code in conformity with the provisions of Article 22 of the Constitution of India, enabling the arrestee to move for his release, and thus it confers a valuable right. Accordingly, non-observance of this provision infringes valuable fundamental rights gua....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... machinery to come into motion and proceed with the investigation. 26. In this context, the provisions of Section 157 of the Code are also relevant, which deal with the procedure for investigation. Consequent upon lodging of the F.I.R,, pursuant to the investigation, if complicity of the accused in the crime is found, it always depends upon the wisdom of the Investigating Officer to arrive at a conclusion regarding necessity of arrest considering the gravity of the offence. According to this provision, it is not imperative that in each and every cognizable offence, the accused must be arrested merely because F.I.R. is lodged against him. The Legislature has taken sufficient care by putting the words : 'If necessary to take measure for discovery and arrest of the offender' in Section 157 of the Code. Meaning thereby, if arrest is 'necessary', it is only then that the same may be effected. The clauses (a), (b) of the proviso to Section 157 are also important in as much as the police officer in charge of the Police Station, if comes to the conclusion that there is no sufficient ground for entering on an investigation, he shall not proceed to investigate the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....robbery, rape etc. and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among terror stricken victim; (b) accused is likely to abscond and evade process of law : (c) accused is given to violent behaviour and is likely to commit further offence unless his movements are brought under restraint; and (d) accused is a habitual offender and unless kept under custody he is likely to commit similar offences again." 29. Thus, considering the words if necessary to take measure for discovery and arrest of the offender reasons for making the arrest are required to be mentioned in the case diary. That is why in Joginder Kumar's case (1994 Cri. LJ 1981) (SC) (supra), Government is directed to issue departmental instructions in this regard to all the police officers. However, this word 'necessary' denotes to record in writing as to how the necessity for arrest is arrived at, and thus in the opinion of this Court since the Legislature itself has taken care hence while effecting the arrest recording of reasons therefore is implicit in the word 'necessary' and the Police Officer is duty bound to state....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the proceedings on such terms and conditions as it thinks fit. Thus, under this provision proceedings can be postponed if enquiry in respect of grant of bail is not concluded expeditiously on the ground of lapses on the part of prosecution, and appropriate orders may be passed by the Court in terms of clause (2) of Section 309 of the Code. 34. Section 437 of the Code deals with bail in non-bailable offences. Sub-section (1) of Section 437 provides that any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by any officer in charge of Police Station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, certain riders have been put to the effect that such person shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life, and further such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or the accus....
X X X X Extracts X X X X
X X X X Extracts X X X X
....concerned to consider his bail application on the same day, 41. In this context, it is necessary to refer the provisions of Sections 437 & 438 of the Code. Before the repeal of Section 438, a person apprehending his arrest in the case of non-bailable offence could apply for his bail commonly known as anticipatory bail, but after repeal of section 438 in the State of U.P. even under Section 437 of the Code by virtue of its Sub-clause (1) indeed the accused person can appear before the Court offering himself in the custody of the Court amounting to 'arrest' for being released on bail on such terms and conditions as may be imposed by the Court. 42. After considering the relevant provisions of the Code referred to above by which the investigating agency or the Magistrate are empowered to release the accused on bail, it has to be seen whether these provisions explicitly or in any manner indicate that if consideration of bail application is not possible on the same day and in the event of adjournment of the case can the applicant be released on bail or on personal bond same day. 43. From the relevant provisions referred to and discussed above, it does not bear out that i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Court observed that it is obvious that Article 21 though couched in negative language confers fundamental right to life and personal liberty in as much as no one shall be deprived of his personal liberty except by the procedure established by law. 46. Sri Rakesh Dwivedi, learned Additional Advocate General, Uttar Pradesh contended that except the cases falling within the purview of Sub-clause (2) of Section 437 of the Code, ,in the cases of heinous offences it cannot be possible for investigating agency to collect all relevant materials within twenty-four hours, such as in the cases punishable under Section 302 I.P.C.. postmortem and other expert reports are required to be collected which naturally take its own time. Similar is the position in other serious offences. Therefore, release on interim bail, of such accused under the directions of this Court in exercise of powers conferred by Article 226 of the Constitution, merely on account of non-availability of relevant material before the subordinate Court concerned, would have serious repercussions resulting into destruction of relevant evidence, obstruction in collection of evidence, pressurisation of witnesses and even loss o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ith all members of a well defined class it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Article 14 confers equal treatment to similarly circumscribed persons belonging to one and the same class. A person who is confined in the jail and the person who is outside jail or in other words, a person whose personal liberty has been jeopardised and the person whose personal liberty is likely to be jeopardised, both certainly cannot be put in one strait jacket. Therefore, the arguments advanced by Sri Dwivedi are not acceptable. If his arguments are accepted then certainly the classes A, B & C in jails will also be hit by Article 14 of the Constitution but this issue has been thrashed out by the apex Court and it has been held that the classification in jails is not discriminatory. 50. Sri Dwivedi specifically submitted that the powers conferred are to be exercised in accordance with the procedure established by law, therefore, in the absence of specific provision in the Code for the purpose interim bail cannot be granted. 51. In this regard it is sufficient to say that the provision for gran....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ity which are concomitants for orderly progress and social stability. 55. Right to speedy trial by taking aid of Article 21 of the Constitution covers all the stages of investigation including trial, enquiry and remand etc. and the Courts of law are expected to dispose of not only the trial but the bail applications as well expeditiously. However, this all depends upon the availability of material collected and placed before the Court at the time of considering the bail application. If there is a right, specially fundamental right guaranteed under the Constitution of India, there must be remedy for the same. Thus the submission made by learned counsel for the respondents that there is no provision under the Code, therefore, by taking aid of Article 21, in exercise of jurisdiction under Article 226 of the Constitution, no direction for consideration of bail application can be issued, has no force. Constitution of India is mother of laws. The law declared by the apex Court is also the law of land, therefore, for the enforcement of the mandate enshrined in Part III of the Constitution, direction can be issued in exercise of powers under Article 226 of the Constitution of India, irr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and Ors. (1978) 4 SCC 494 : (1978 Cri. LJ 1741) cannot be lost sight of. 61. Considering the dictum laid down in above mentioned "cases it is clear that right to speedy trial includes the right to get bail application decided expeditiously and if possible the same day. The right to human treatment, as discussed in Sunil Batra's ease (1978 Cri LJ 1741) (supra) also cannot be lost sight of, Thus Article 21 of the Constitution mandates to the effect mentioned above. Even then if some difficulty arises, same can easily be resolved by adhering to the provisions of chapter XXXIII of the Code along with the provisions of Part III of the Constitution of India which deals with fundamental rights. 62. However, the argument of Sri Dwivedi, that it does not spell out from the provisions of the Code that the bail application is to be decided same day, has already been dealt with and it has been observed that the directions are issued under Article 226 of the Constitution to act in accordance with the provisions of Section 437 of the Code and in the event of any procedural difficulty the Courts may take recourse of external aid so as to discover the object of Legislature and the princ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ble so as to adjudicate upon the bail application on the same day, then the Courts are expected to dispose of bail application expeditiously, if not impossible, the same day and this discretion is to be applied by the concerning Courts. To this effect there is no difficulty. 65. Thus considering total scheme of Chapter XII of the Code, pursuant to the F.I.R. or any relevant information, the police can investigate the i| crime and arrest the accused persons if necessary and as far as releasing accused person on bail is concerned, the procedure is prescribed and if the police machinery proceeds in accordance with the law established by the Court, certainly there will be no infringement of Article 21 of the Constitution. 66. There fore where under the garb of procedure prescribed by the Act action taken gives obnoxious smell, immediately mandate issued under Article 21 comes to rescue and the action of the prosecution becomes contrary to the provisions of Article 21 and it will be not only arbitrary, unreasonable and unfair but also be oppressive and that is what has been laid down in Maneka Gandhi's case (AIR 1978 SC 597) (supra). Hence it is not that the Chapter XII of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rred on the citizen and that is why while giving fundamental rights under Part III of the Constitution, taking into consideration the Constitution of Japan & America, important Articles have been mentioned in our Constitution including Articles 21 and 22 which are relevant for this case. As discussed above, no doubt, Article 21 is in negative form but its interpretation given by the apex Court, where personal liberty has been, construed to be the right to live with human dignity which is at the highest pedestal cannot be lost sight of. In G. Nasirulla v. Public Prosecutor Andhra Pradesh (AIR 1978 SC 429) it has been ruled that Article 21 makes deprivation of liberty a matter of grave concern and permissible only when the law authorises to do so. Thus Article 21 is not only available to the citizens but to non-citizen as well. 69. The recent two decisions in Unnikrishnan"s case (AIR 1993 SC 2178) (supra) and Joginder Kumar's case (supra), are eye openers in this regard. In former case, the word 'life' occurred in Article 21 has been interpreted and the same has been construed to be a life of dignity as a civilised human being and not just animal survival. In the later....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uch erring officers, holding both of them jointly and severally liable for paying compensation. Also see Smt. Nilabati Behera alias Lalita Behera v. State of Orissa and Ors. J.T. 1993 (2) SC 503 : (1993 Cri LJ 2899). 73. The submission made by Sri Dwivedi that no law can be innovated by the Court and the Court cannot usurp legislative powers of the State, might have had some force few decades back, but with the change in society if the law is not changed by enactments in accordance with the needs of the society, certainly this uphill task is to be taken by the Courts and the law Courts do not lag behind for want of power; authority or jurisdiction to declare the law, to apply the law and to give binding and authoritative decisions and to carry it out into effect. 74. In the historical case of Keshvanand Bharti (AIR 1973 SC 146), Justice Matthew observed that judicial function is like legislative, both creative and application of law. The judicial function is ordinarily determined by the general norms in both as to procedure and as to contents. 75. Thus, since the scope of life and personal liberty has been expanded and put at the highest pedestal by the apex Court vide jud....
X X X X Extracts X X X X
X X X X Extracts X X X X
....para 51 of the judgment that 'time schedule for concluding criminal proceedings cannot be fixed ' is binding on us. 78. Therefore, notwithstanding the fact that 'speedy trial covered under Article 21 of the Constitution includes 'speedy disposal of bail application as well' we are of the considered opinion that in exercise of powers 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 bail proceedings cannot be fixed. This is our answer to the question referred to us. 79. Accordingly, the view taken in Dr. Hidayat Hussain Khan's case 1992 Cri. LJ 3534 (supra), to the extent it fixes outer limit for disposal of the bail application same day and directs for releasing the applicant on bail in the event of falilure to dispose of bail application the same day, stands overruled and the view taken in Noor Mohammad's case (supra) to the extent it is in conformity with the conclusion arrived at by us above is confirmed. 80. However, in view of latest pronouncement of apex Court in Karta Singh case (1994) 3 SC....
X X X X Extracts X X X X
X X X X Extracts X X X X
....efore the Sessions Judge and that application conies up for hearing after about a week as notice is given to the State. In this way the accused has to remain in Jail for at least ten days and then his application is taken up for hearing and for that reason the accused has to face great inconvenience and harassment even in the case in which bail is ultimately granted by the Session Court or is likely to be enlarged on bail. As such the fundamental right of the personal liberty is curtailed and the accused is deprived of his personal liberty for no fault of his. The personal liberty includes reputation, dignity and honour of the individual, which can be saved and maintained if the Courts below are directed to hear and dispose of the bail application on the same day and in case the application is not possibly heard and disposed of on the same day, then the accused be released on interim bail till the disposal of his bail application particularly when there would be no harm or prejudice to the prosecution or any other person. 86. There are two sides of a coin. The first is the concept of personal liberty of an individual from an illegal or arbitrary arrest by the police or by some a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... practitioner of his choice. Dr. B.R. Ambedkar has very aptly explained this while he was replying to one of the questions in the Constituent Assembly in the followings words : "Our intention is that the words 'as soon as possible' really mean immediately after arrest if not before arrest." The aforesaid observations have been followed by Hon'ble Supreme Court in a series of decisions and it is no more in dispute that the arrestee has to be told the grounds of arrest immediately after he has been put under arrest. 88. Simultaneously with the aforesaid provision in the Constitution there are other Sections in the Cr. P.C. where an arrest may be affected because of warrant executed by Courts outside the territorial jurisdiction where the proposed arrestee lives. In such cases and some other cases also the provisions contained in Section 88 of the Cr. P.C. may apply. 89. Therefore, if a comparative study of these provisions is made, it will be apparent that disclosure of grounds of arrest where a police officer exercises power under Section 41 Cr. P.C. has got to be disclosed to him in view of the mandatory provisions contained in Section 50 Cr. P.C. It f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the first point was answered by a Bench of Five Judges thus : "If the matter had arisen while the petitioner was in custody of the Armed Forces a question might well have arisen that he was entitled to be released or at least made over to the Police. However, that question does not arise now because he is an undertrial prisoner." It seems to us that even if the petitioner had been under illegal detention between January 10 to January 24, 1968- though we do not decide this point the detention becomes lawful on January 24, 1968 when he was arrested by the Civil Police and produced before the Magistrate on January 25,1968. He is now an undertrial prisoner and the fact that he was arrested is only one case which does not make any difference." 93. Next stage comes relating to remand of arrested person to custody till the submission of charge sheet. The Division Bench of this Court in the case of Noorul Huda v. Superintendent, Central Jail, Naini, Allahabad and Ors., reported in 1984 A.L..T. 561. When a valid order of remand is passed after submission of charge sheet all previous irregularities or illegalities occurring in connection with the orders of remand passed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....other hand, custody is given its normal meaning of physical imprisonment the Court will have the power to rectify its error and make the custody of the accused legal by a valid warrant of remand under Section 309(2) Cr.P.C. In all criminal cases the accused is either in prison or is on bail after his arrest during' the inquiry and trial. The word 'custody' in Section 309(2) Cr.P.C. in our opinion, therefore, means physical imprisonment as distinct from being on bail. Even it the accused is in prison after his arrest in a criminal case without an order or warrant of remand by a competent Court he is in custody as distinct from being on bail. The word 'custody' therefore embraces both legal imprisonment as well as illegal imprisonment." 94. The trend of the Courts is that criminals should not go scot-free because of the police blunder or mistake of the Court committed in passing the remand order for the custody, opportunity to Court is given to have the mistake corrected so that interest of the Society may be saved from the operation of the criminals. 95. I fully subscribe to the views of my. esteemed brothers that under Articles 226 and 227 of the Constitut....
X X X X Extracts X X X X
X X X X Extracts X X X X
....laim intrerim bail only for getting his bail application decided. It may be repeated that Section 397 Cr. P.C. is a self-contained Section and every bail application moved by a person in custody must be decided in accordance with the terms contained therein. There is no other alternative. 98. In view of the aforesaid additional reasonings as stated above, I fully agree with the view expressed by Hon. Palok Basu, J. G.S.N. Tripathi, J. 99. I have had the unique privilege to be enlightened after going through the judgment prepared by our esteemed brothers Hon' ble Mr. Justice B.M.Lal, Hon'ble Mr. Justice Palok Basu, with whom Hon'ble Mr. Justice V.N. Mehrotra has concurred fully and also the opinion expressed by Hon'ble Mr. Justice Kundan Singh, who, after concurring with Hon'ble Mr. Justice Palok Basu's view, has expressed his views in few words in support of the same. 100. The following question was referred to this Full Bench :- "Whether while rejecting the writ petition filed for quashing first information report, this Court, in exercise of its powers under Article 226 of the Constitutioon of india can issue a writ, order or direction ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tent it is in conformity with the conclusions arrived at by us above is confirmed." 103. However, he has added additionally as follows: - "However, in view of latest pronouncement of apex Court in Karta Singh's case (1994) 3 SCC 569 (supra) this Court itself, in exercise of jurisdiction under Article 226 of the Constitution in rarest of rare cases in extreme situation where it ex facie finds that the proceedings initiated against the accused persons by the police agency amount to abuse of process of Chapter XII of the Code, may in its discretion, consider to grant bail." In fact, to my view, this additional observation was not needed because this question was not referred to the Full Bench. However, since this observation is based on the Supreme Courts observations, it should be allowed to stand as it is. 104. While replying to the same question, Hon'ble Mr. Justice Palok Basu while concluding, observed at page 48 as follows:- "In view of the aforesaid discussions the decision in the Allahabad case i.e., Dr. Hidayat Hussain Khan v. Slate of U.P. is overruled and the exposition of the legal position in the Lucknow case, i.e., Noor Mohd. v. State of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the framers of the Cr.P.C. were not regid and the Magistrate, of course, before whom the accused is produced, has to examine it. Thereafter, the Magistrate has to authorise detention and if necessary, he has to consider the bail application also. In case he chooses to remand the accused to custody, it is his discretion as to how long the accused has to be detained. Of course, with a rider that he shall not order detention for more than 15 days at a time. At the time of every remand, the material has to be considered. The remand becomes necessary only because all the materials have not been collected. Therefore, again the discretion of the Magistrate crops up. Whether the material is sufficient or not is left to the subjective satisfaction of the Magistrate. In many cases, materials might not have been collected or if collected, might not have been transmitted to the Magistrate or to the public prosecutor. Therefore when the bail application comes up the prosecution prays for lime to bring forth the entire material collected or likely to be collected before the bail may be considered. By any stretch of imagination, this request of the public prosecutor can be said to be unreasonable....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ne. Hence this contention is not accepted. Since the discretion is vested in the Magistrate/ Sessions Judge, when he directs the remand to the Jail custody, he does not violate the spirit of law and it cannot be argued that the custody becomes illegal. Even otherwise, unless the entire material is available, no counsel under Article 22 of the Constitution can do full justice by way of defending the accused on the one hand and rendering legal assistance to the Court on the other. Therefore Mr. Sengar's argument has no substance that the provisions of law should be interpreted with utmost rigidity. Everywhere the words used are " as soon as may be or within a reasonable time." So if the Magistrate remands the accused to Jail custody and fixed a date for consideration of the bail within a reasonable time, he very much acts within the jurisdiction vested on him by the Cr.P.C. and also legitmised by the Constitution. 113. The accused may have been named in the FIR in some cases, while in certain cases, he may not be named in the FIR. He might have been named under Section 161 Cr.P.C. All the culprits for interrogating him, may not be available by that time, except a strong suspic....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... can neither be imposed nor curtailed by this Court, otherwise it will amount to infringement or interference with the authorities exclusively vested with the Magistrate/ Sessions Judge. Tacitly it may amount to compel the Magistrate to act in a mechanical manner, which will be neither in the interest of the accused nor in the interest of the society. Exercise of judicial authority should not be allowed to become a mechanical exercise in futility. It involves an application of judicial mind and the law requires that a judicial act should also be fair, just and not arbitrary. For that, a reasonable time and opportunity must be afforded to the Magistrate/ Sessions Judge. That is why, it should be left to the Magistrate whether to decide the bail application immediately or within a reasonable time thereafter with a view to do justice to the case without in any way being interfered by this Court. 115. Whether in'a given circumstance, the Magistrate grants temporary or short-term bail or not, is always in the discretion of the Magistrate. This point has been considered by Hon'ble Mr. Justice B.M.Lal at page 36 of his judgment and 1 agree with the observations made by his Lord....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mand. Any interference by this Court by way of a direction to the Magistrate/ Sessions Judge to consider the bail on the same day, will put the prosecution always in ' jeopardy and the consequences will always remain hanging against it. This will not be an even-handed justice either. Nay it will amount to gross injustice in some cases. Not only this, it will not be possible to give a harmonious construction to Section 41 Cr.P.C. along with Section 437 Cr.P.C The Legislature in its wisdom has given powers to the police under Section 41 Cr.P.C. and the Courts cannot suspect the soundness to this wisdom by making provisions of Section 41 nugatory, ineffective and impotent. That is why, I do not agree with the arguments advanced by learned counsel Mr. Tapan Ghosh that even in such cases, the Magistrate/ Sessions Judge should be ordered to consider the bail on the same day. Accordingly, this contention is rejected. The arrest made under Section 41 Cr.P.C, is an "arrest" under the provisions of Cr.P.C. i.e. procedure established by law. 117. There is, however, one practical difficulty. In one crime number two persons are named as accused, i.e., A and B. The police goes to arrest b....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the High Court. On the other, he shall be failing in his duty towards other better-placed applicants, whose liberty has already been snatched a week or two earlier. I think the High Court should not encourage either disobedience of its own order or disregard towards imparting even-handed and legal justice to others at the cost of such better-previleged persons who have obtained orders of the High Court. 119. There is yet another apprehension. Many of the arrests are made during the course of investigation and so also the bail applications are considered at that very stage. Availability of the accused is very essential in many cases for coming to a correct conclusion. In many cases, accused is interrogated, which is also a part of investigation. By unduly interfering with the discretion vested in the Magistrate or ordering him to consider the bail application on the same day, this Court will not only be interfering with the discretion vested in the Magistrate but also in the investigation itself. It is not proper and desirable it should be avoided. 120. There is no dispute that this Court under Article 226 of the Constitution has unlimited jurisdiction. But the'courts ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a matter to be considered after looking into the pros and cons and the other side of the picture can only be shown by the State. So this desperate argument has no weight as the Society is based on natural justice. One of its ingredient is not to condemn a person without hearing. By granting an easy bail, indirectly, the State is condemned. Hence it has a right to be heard with all cases like bail unless in some exceptional cases which the Court considers it proper to exempt itself from this obligation. 123. I agree with the contention of the learned Advocate General that a short sojourn of an innocent person in Jail, is not likely to disturb the society as much as an order granting parole to a culprit. Because in the latter case, the society suffers a lot. This is not a case of winner or loser. Rather, it is a case where the State has to play an active part in discharging its legal and statutory obligation. That is why, full consideration after application of judicial mind, is a must even before granting a short-term bail or parole to the accused. 124. I do not subscribe to the view of Hon'ble Mr. Justice Kundan Singh that there is no provision for granting parole or sho....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion vested in the Magistrate and it is not a wrongful exercise of power. 128. Learned Addl. Advocate General further urged that if a direction is given by this Court that the bail matter should be considered the same day, it may further be prayed that why not the Magistrate should be ordered to consider the bail application at the same moment when it is filed, because even a minutes loss of liberty of a person is to be avoided and the same may be repeated with the Sessions Court and High Court also under Section 439 Cr.P.C. I think that this sort of likely misuse should be avoided and that is another 'reason why the High Court should not pass any such direction while exercising powers under Article 226 of the Constitution. 129. The Lucknow case contemplates certain hardships and desires that some administrative directions may be issued by the High Court. Hon'ble Mr. Justice Palok Basu has rightly observed at page 48 of his judgment that this portion of the judgment should be ignored as no administrative direction appears necessary and the same paragraph should be overruled. I wholly subscribe to this valuable view of our esteemed brother. This does not mean that the H....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tive. But I reject his contention and it should not be entertained as it amounts to violation of law. 135. Learned Addl. Advocate General cited some American cases in which the stress has been laid on the point that adequate hearing should be available to the parties including the State even at the stage of bail. Further, he urged that even in such an advanced society like U.S.A., the provision of authorization of jail custody at the hands of the Magistrate is provided. Therefore, I agree with the learned Addl. Advocate General that the squeezing of the hands of the Magistrate by issue of a mandamus by this Court will not only be putting undue strain on the Constitution, but also be against the spirit of procedural law contained in the Cr.P.C. Even the Legislature cannot take away the powers of a Magistrate conferred upon him by Article 22 of the Constitution, much less this Court. 136. Another unfortunate feature of the case is that while passing an order under Article 226 of the Constitution, while rejecting the main prayer for quashing the FIR, the entire case diary containing the materials is not available before this Court. Even then this Court ventures to exercise its a....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., J. may be the central point of discussion but final decision in the petitions have to be passed even after an answer is given to the question so framed. Thus writing this opinion has become imperative. Discussion about those observations of my esteemed brother will be taken up after the factual and legal aspects which have been for decision are dealt with. 142. The aforesaid three writ petitions were referred by one of us to larger Bench to resolve the conflict arising out of two Division Bench decisions of this Court. The Hon'ble C. J. has constituted this five Judge Bench to consider the matters. 143. In the writ petition of Dr. Hidayat Hussain v. State, 1992 Cri LJ 3534 for short - the Allahabad case, while considering the prayer "for direction to consider bail application on the same day" the decisions of learned single Judges in Rajendra v. State, 1989 ACC 57 and Sipti v. State, 1991 ACC 178 thereby issuing general directions not to arrest an accused till his bail application shall have been disposed of by Court below, which practice should be universally followed by Sessions and Magistrates' Courts, were overruled and it was held that- "Even without i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on was rejected. 145. In Civil Misc.Writ Petition Noor Mohd. v. State of U. P. (for short, the Lucknow case) a Division Bench of this Court dismissed the prayer for quashing the F.I.R. and has made the following observation; "In view of the aforesaid discussion, we are of opinion that this Court cannot direct the trial Court to hear the bail application the same day. It cannot also direct the Court below not to arrest the person who surrenders himself and moves an application for bail and to direct the police not to arrest him. No direction can also be issued to release the applicant immediately after he surrenders on a personal bond without any other consideration and to hear again the application for bail on merits. Each of those directions would, as discussed in detail above, violate the provisions of law and subvert the process inherent in the bail determination. It is not that we are not equally concerned about the unnecessary deprivation of liberty of any individual. Yet we cannot persuade ourselves to bend the provisions of law relating to bail beyond the limit of elasticity and issue directions which would stretch them beyond the breaking point....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ar, Pauri-Garhwal be quashed. In the alternative it was prayed during arguments that should the main prayer fail, the petitioner's bail application may be directed to be considered by the Court below on the day it is moved. An additional argument In the case of this petitioner was advanced. It was said that if the petitioner surrenders before the competent Court and remains in custody for more than 48 hours she being a Govt. servant, will be deemed to be suspended under Section 49-C of the Civil Servants' Classification Control and Appeal Rules even without initiation of disciplinary proceeding. After hearing the learned counsel, the main prayer for quashing of the F.I.R. was rejected. While considering the ancillary prayer, the aforesaid conflict in the two Division Bench decisions was noticed for which this reference was made. 150. Before going into the various arguments raised, it would not be presumptuous to conclude that the principal controversies which are up for consideration in the instant petitions are perhaps the illegitimate progeny of an unwelcome alliance between a Central Act (Cr.P.C. Act II of 1974) enacting 'anticipatory-bail' provisions for the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Singh (sic) the observations are over and above the decision of the Division Bench in Km. Parwati. The Hon'ble Supreme Court wanted to check the vires of the provisions of the State Act with reference to Articles 14, 19 and 21 of the Constitution of India. In none of the instant petitions has the vires been challenged. However, on behalf of Bar Association-intervenor, an application was moved at the time when hearing was on, to permit amendment and hear arguments on the question of vires. This was strongly opposed by the State. Consequently, this Court was to refrain from examining the vires of the State Act No. XVI of 1976, for, the matter was specifically subjudice before the Hon'ble Supreme Court. However, in Kartar Singh v. State of Punjab 1994 (3) SCC 569 the constitutional validity of criminal law Amendment Act No. XVI of 1976 deleting Section 438 Cr.P.C. in the entire State of Uttar Pradesh, has been upheld. May be that the existence of Section 438 Cr.P.C. in the adjoining States or for that matter, perhaps in the rest of the country and its deletion only in the State of Uttar Pradesh has not been examined from the point of view of requiring uniformity in procedure ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... prison for some days and then apply for bail." 155. It may further be relevant to, mention here that the aforesaid Section 438 Cr.P.C. was incorporated in the Central Act because :- "As recommended by the Commission, a new provision is being made enabling the superior Courts to grant anticipatory bail, i.e. a direction to release a person on bail issued even before the person is arrested. With a view to avoid the possibility of the person hampering the investigation, special provision is being made that the Court granting anticipatory bail may impose such conditions as it thinks fit...." 156. None-the-less, it is always open to the Central Government or the concerned State Government to delete Section 438, Cr. P.C. if exigencies in the country or exigencies peculiar to a concerned State so require. This is specifically within the domain of the legislature. The most that can be suggested is that the entire country deserves to be brought on similar lines so that equal opportunity in procedural law regarding anticipatory bail is available to all, which similarity exists for the purpose of bail matters. Care can be taken for making provisions for excepting such areas wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs." "95. Amendment of Section 498, Act V of 1898 - Section 498 of the Principal Act shall be renumbered as Sub-section (1) thereof and after Sub-section (1) as so re-numbered, the following Sub-section shall be inserted, namely :- "(2) A High Court or Court of Session may cause any person who has been admitted to bail under Sub-section (1) to be arrested and may commit him to custody." "96. Amendment of Section 498, Act V of 1898- In Section 499 of the Principal Act, after Sub- section (2), the following Sub-section shall be in- "(3) For the purpose of determining whether the sureties are sufficient, the Court may, if it so thinks fit, accept affidavits in proof of the facts contained therein relating to the sufficiency of the sureties or may make such further inquiry as it deems necessary." 160. It appears necessary to refer to the 'objects and reasons' behind Sections 436 to 439 of the new Code so that distinction in exercising powers of granting bail be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ge of a Police Station if such accused is prepared to give bond. The discretion of the said Police Officer or the Court to release such an accused on his executing a bond without sureties is made absolute by the first proviso to Sub-section (1) of Section 436, Cr. P. C. Sub-section (2) thereof empowers forfeiture of the bonds if the accused has failed to comply with the directions. 164. The provisions of Section 137, Cr. P.C., would be very relevant for the discussions following. It may be noted that by virtue of Sub-section (1) the power to grant bail has been extended to an officer or a Court (other than the High Court or the Court of Sessions) who or which has arrested and detained and accused in a non-bailable offence and before whom he appears or is brought. Sub-clause (1) is an absolute bar on such police-officer or Court to release the accused on bail if "there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life." Sub-clause (2) is yet another bar on the exercise of the said power by the Court or the Officer if the accused had been "previously convicted of an offence punishable with death, imprisonm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ch information and materials provide reasonable grounds for believing that the accused has committed a non-bailable offence. 167. Sub-section (3) contains provisions empowering only the Court (emphasis by the Court) to impose conditions if the accused is suspected of commission of an offence punishable with imprisonment which may extend to seven years or more or an offence under Chapter-VI, Chapter-XVI or Chapter XVII of the Indian Penal Code or abatement of, or conspiracy or attempt to commit any such offence. 168. Therefore, a combined reading of Sub-sections (1), (2) and (3) leave no room for doubt that the power of releasing an accused on bail under Sub-section (1) lies only with the Court. While exercising such powers it may impose those conditions which have been enumerated in Sub-section (3) regarding offences under Chapter-VI, XVI or XVII of the I.P.C. or their abatement, conspiracy or attempt. Let it be made clear at once that the moment a challan of an accused after arrest by a police officer is sent or forwarded to Court, the custody of the Court begins. Therefore, the right to hear bail application of such an accused is that of the Court alone and none else. 16....
X X X X Extracts X X X X
X X X X Extracts X X X X
....agistrate with the allegatipn against him of an offence punishable with death or imprisonment for life, he has ordinarily no option but to refuse bail subject however, to the first proviso to Section 437(1), Cr. P. C. and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extra-ordinary occasion since there will be some materials at the stage of initial arrest for the accusation or for strong suspicion of commission by the person of such an offence." 170. By referring to the amendments brought about in the year 1955, the 'objects and reasons' in enacting bail provisions and Section 437 in the new Code and examining the provisions of entertaining bail application in detail, it is easily inferable that now the Magistrates have a broader power to consider favourably the plea for release on bail in all matters covered by Sub-section (3) of Section 437, Cr. P. C. Similarly, release even on personal bond is possible vis-a-vis an accused or suspect whose case may be covered by Sub-section (2) of Section 437, Cr. P. C. 171. In no other case have the Magistrates been ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....enerally of the following steps :- (i) Proceeding to the spot. (ii) Ascertainment of the facts and circumstances of the case. (iii) Discovery and arrest of the suspected offender. (iv) Collection of evidence relating to the Commission of the offence. (v) Formation of the opinion as to whether on the materials collected there is a case to place the accused before the Magistrate for trial and if so, taking necessary steps for the same for filing charge-sheet. See H. N. Rishubd, AIR 1995 SC 196. 174. It will be relevant to mention here that in case of under trials charged with the commission of offence, the Court is generally called upon to decide whether to release him on bail or to commit him to jail. This decision has to be taken mainly in non-bailable cases having regard to the nature of the crime, the circumstances in which it was committed, the background of the case, the possibility of his jumping bail, the impact that his release may make on the prosecution witnesses, its impact on society and the possibility of retribution etc. See-B. Subbaro, AIR 1989 SC 2292. There is no hard and fast rule regarding the grant or refusal of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...."interim bails," i.e., bail granted by way of interim measure during pendency of bail application itself. Similarly, release on personal bond only or on personal bond plus surety bonds are only two different forms of being released on bail, the purpose of both being to secure the presence of the accused on future dates pending investigation, enquiry, trial or hearing of appeal, etc., as the case may be. 177. Therefore, while considering an application of an accused or suspect for granting bail, no court can overlook the statutory provisions contained in Sections 437 and 439, Cr. P. C. which alone are attracted when bail application is to be decided. Thus, a Court of Sessions or this Court, when exercising powers of bail as conferred by Section 439, Cr. P. C, shall have to adhere to the provisions contained in Section 439 and take the clue from provisions in Section 437, Cr. P. C. because the provisions in Section 437, Cr. P. C. are necessary preclude to the exercise of right of an accused praying for exercising power by Court of Sessions or High Court to consider such person's bail application. Therefore, the right to "appear" is available to an accused under Section 437, Cr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in Articles 21 and 22 of the Constitution of India in order to claim the right to file writ petition to seek a perior order of this Court for getting "bail application considered the same day" by the lower Courts when the accused surrenders before it and moves such an application. In this very connection it was argued that right to hear the prosecutor or the State while considering bail application under Section 437, Cr. P. C. is not imperative and, therefore, if the Court wants to know the materials or allegations against that accused, the Court should be asked to grant 'interim-bail' for the period such materials or allegations are placed. Only when and if, bail application is rejected on merits that the accused may be sent to jail and never before that. In order to justify the arguments regarding 'interim-bail' it was argued that since there was no specific provision prohibiting the grant of "interim-bail", such power exist in the Courts. It was further argued that in cases where bail cannot be granted by Magistrate, interim bail should be granted to enable the accused bail to apply for bail before the Sessions Court and that Court should be asked to follow the s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r to have audience ? There is nothing more jarring to the ears than an ill measured and out of scale symphony; Strings of both instruments have to be tuned so melodiously that it helps to achieve sublimity and serenity all around in the society. 184. Simultaneously one will have to examine how far. would it be justified to frame always question regarding powers of Courts, totally ignoring the primary question of powers, i.e., rights of individuals ? Existence of a power but non exercise thereof e.g., powers to grant bail in Habeas Corpus petition stand so aptly laid down in Ram Balak, AIR 1966 SC 1441 :- "...in dealing with Habeas Corpus petitions under Article 226 of the Constitution when orders of detention passed under Rule 30 of DIR are challenged, the High Court has jurisdiction to grant bail but the exercise of the said jurisdiction is invariably circumscribed by considerations which are special to such proceedings...." 185. One has not to be told that life without dignity may be dis-liked by all concerned and the observations of the Hon' ble Supreme Court must be held to connote that right to live with dignity has always been included within the fundamenta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....anced, must be primary duty of the judiciary. In other words, depriving one of his precious individual liberty can only be according to law. The intendment of Section 57, Cr. P. C. appears to be that investigation needs completion within twenty four hours. Some more time may have to be spent in detention than twenty four hours. (See Aslam, AIR 1993 SC 1. 188. The functions of the judiciary in the Course of investigation by the police should be complementary and full freedom should be accorded to the investigation to collect the evidence connecting the chain of events leading to the discovery of the truth viz. the proof of commission of the crime. Often individual liberty of a witness or an accused person is involved and inconvenience is inescapable and unavoidable. The Investigating Officer would conduct in depth investigation to discover truth while keeping in view the individual liberty with due observance of law. Investigation of a crime is not of a routine duty, in particular in tractable terrains of high places committed with dexterity and sophistication. The unfounded threats of mala fides or bias often deters a sincere and dedicated investigator to make indepth investigat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....toms Act or Foreign Exchange Regulation Act though not an accused and yet called away from his house and is questioned by the authorities without assistance of his lawyer or friend, no violation of Article 21 of the Constitution of India can said to have been made. Refusal of lawyer's or friends' assistance to such persons is to be upheld even on applying the "just, fair and reasonable" test. (See-Pool Pandi, AIR 1992 SC 1795). An arrested person may get informed a friend or relative for his welfare on knowing that he is under arrest and this right of arrested person shall be conveyed to him by the police officer concerned regarding which an entry shall be made in their relevant diary and when the arrested person is produced before the Magistrate for remand, the Magistrate will have to satisfy himself that these requirements have been complied with (See Jogendra Kumar, AIR 1994 SC 1349). 192. There is no denying the fact that a lethargic and lack-a-daisical manner of investigation over a prolonged period makes an accused in a criminal proceeding to live every moment under extreme emotional and mental stress and strain and to remain always under a fear psychosis. While so....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w is correct exposition of law and has to be concurred. 197. His Lordship after observing that the word 'law' has been held to be procedure established by law, and citing U. P. Unni Krishnan, 1993 (1) JT 474, Olga Tellis, AIR 1986 SC 180 (sic) and Sunil Batra, 1978 (4) SCC, has again rightly observed that: "Considering the dictum laid down in above mentioned cases it is clear that speedy trial includes the right to get bail application decided expeditiously and if possible the same day...". and then after nothing the ratio in Union Carbide, AIR 1992 SC 248, M. V. Elizabeth, AIR 1993 SC 1014, Admn. v. D. Dhankar, AIR 1992 SC 184, his Lordship has held as under :- "...In our opinion if the entire material collected against the accused or even sufficient material is available so as to adjudicate upon the bail application on the same day, then the Courts are expected to dispose of bail applications expeditiously, if not impossible, the same day and this discretion is to be applied by the concerning Courts. To this effect there is no difficulty." 198. These observations of the Hon'ble Judge are respectfully concurred with. Thereafter, His Lordship ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....S OVERRULED AND THE VIEW TAKEN IN NOOR MOHAMMAD'S CASE (SUPRA) TO THE EXTENT IT IS IN CONFIRMITY WITH THE CONCLUSIONS ARRIVED AT BY US ABOVE, IS CONFIRMED. 200. It however appears that the four cases referred to by Hon'ble B. M. Lal, J. in order to come to the conclusion that an interim bail is implicit in the main provision which speaks of bail and that is why interim bails have been granted by the Apex Court, do not really lay down anything on the basis of which the said finding can be recorded. In Tahira Begum, (1982) 3 SCC 374 a writ petition under Article 32 of the Constitution of India was under consideration by the Hon'ble Supreme Court. It has been observed that "a perusal of the writ petition indicates that the (sic) has good prima-facie ground. It was further observed that adjournment was sought by the State. For these two reasons the Hon'ble Supreme Court directed provisional release on furnishing a surety in the sum of Rs. 10,000/- with two sureties. Likewise in Ghanshyam Das Jain Hon'ble Supreme Court was considering a writ petition filed under Article 32 of the Constitution of India in which the question of vires was thought not necessary to be ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... years, with the result the vesed interest often misuse police powers to subserve their own purposes for personal vendetta and the police officials under pressure of vested interests deliberately rope their rival group for oblique motives." 203. With greatest respect to the esteemed brother, the undersigned feels that in about 47 years of democratic Governments in our country the said form of political system has nearly matured itself. Perhaps untimely changes in some Governments may be due to the fact that polarization of forces may be taking place. However, all these and allied questions may be examined appropriately by political scientists. Neverthless, there has been no dearth of honest police officials who have sacrificed their lives in resisting pressure from any corner-political, official or personal in investigating matters entrusted to them. Likewise, there have been officers who for very shabby and insignificantly ephimiral reasons, have flouted their official position and misused the powers conferred on them by law by wrongly arresting individuals. It appears that such types of personal aberrations on the part of individual Investigating Officials or for that matter, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... State of Punjab, (1994) 2 SCC 569 (supra), is to provide more than enough safeguard that if contingencies appear so demanding, High Courts may in exercise of powers under Article 226 of the Constitution, may direct release on bail. These observations of-course, were made on the hypothesis that should such an extreme case come, the citizen's safety rests fully secure. 206. In Sanjay Dutt, (JT) 1994 (5) SC 540, this matter has been considered on brass facts. The famed actor is presently in jail under TADA Act though he was granted bail when challan had not come within time but was taken into custody after filing of the challan. The unanimous verdict of the Constitution Bench of the Supreme Court expressed through the articulate language of Hon'ble Mr. Justice J.S. VERMA, is :- "A purposive construction promoting the object of the enactment but not extending its sweep beyond the frontiers within which it was intended to operate must be adopted keeping in view that a construction which exempts a person from its operation must be preferred to the one which includes him in it in view of the penal nature of the statute.... "One of the modification made in Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... non-cognizable offence at a Police-Station. 209. Having thus discussed the entire matter in pith and substance and in all possible details, final conclusions have to be drawn. In the cradle of experiences in these adolescent years of our independent Nation, the citizens have learnt so many things. We have to learn to develop our motherland into a body of individuals of healthy body, mind and vision. The process of learning for we the citizens, in whatever capacity we may be serving our nation, is a continuous process. In this connection Abraham Lincon's letter to his son's teacher, which has become a legacy for the sheer sincerity of the contents, may be usefully remembered by all, particularly, those who are important functionaries, only to remind what has to be learnt: "He will have to learn, I know, that all men are not just, all men are not true. But teach him also that for every scoundrel there is a hero, that for every selfish politician, there is a dedicated leader. Teach him that for every enemy there is a friend, it will take time, I know, but teach him, if you can, that a dollar earned is of far more value than five found. Teach him to learn to lose a....