TaxTMI 
TaxTMI 
1977 (9) TMI 130
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....ead with section 5(2) of the Prevention of Corruption Act and section 406, 409, 477-A and 120-B of the Indian Penal Code, was registered. In the said report, it was alleged inter alia that Shri Zail Singh, former Chief Minister of the Congress Government in Punjab along with some members of his Council of Ministers, some office bearers of the Punjab Pradesh Congress Committee, some appointees to high public offices and senior ranking Government officials had conspired to collect huge funds for the holding of the Congress Party Session at Mattaur near Chandigarh and to personally amass wealth by abuse of authority and misuse of powers. 3. In pursuance of the said conspiracy, Shri Zail Singh aforesaid accompanied by Shri Joginder Pal Pandey, then State Minister of Public Works Department and Shri Sat Pal Mittal (petitioner) then General Secretary of the Punjab Pradesh Congress Committee held a meeting at Ludhiana in which leading businessmen, industrialists and Government officials had participated. Shri Zail Singh abusing his authority as Chief Minister stressed upon the officials present to collect the maximum funds from industrialists and businessmen for the All India Congress ....
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....s Party though such Government officials could have no connection with a private political function of the Ruling Congress Party. It is alleged that the State Exchequer was unlawfully burdened to the tune of lakhs of rupees for incurring expenditure entirely for the purposes of holding the said session. Indiscriminate use of Government stores and machinery was also made in connection with the same. Specifically it is alleged that purchase of buckets worth Rs. 16,000 for the purpose of the Mattaur Session was unauthorisedly made. Shri Gurbax Singh Sibia, petitioner, then the State Irrigation and Power Minister had further ordered the purchase of 600 chairs costing nearly Rs. 37,000 and eight geysers worth Rs. 12,000 to be instaled at Government expense for the purpose of the said session. Vehicles were also hired at public expense and a sum of Rs. one lakh was spent on this account by the Government though they were entirely utilised for the purpose of the Congress Party. It is alleged that Shri Hans Raj Sharma, Finance Minister without caring either for the financial rules or the propriety allowed the diversion of the Government funds for purposes which were entirely unauthorised i....
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....ained an amount exceeding rupees five crores by the methods detailed above and also acquired assets disproportionable to their known sources of income in the form of movable and immovable property and shares held Benami and clandestinely in other names. 12. It is plain from the above that on the prosecution allegations, the respondents' stand is that the case against the two petitioners along with others is one of the most blatant cases of corruption and misuse of high authority for personal and political gain. 13. On the other hand the stance taken on behalf of the petitioners apart from alleging that the allegations against them are false is that the present case is merely another weapon for the vilification of the petitioners in particular and for the victimisation of the political opponents in general by the present Ruling party. It has been alleged that the Congress Government in the State had constituted a Commission of Enquiry headed by Justice Chhangani to enquire into certain allegations against the Ministers of the former Government of the Akali Party, headed by S. Parkash Singh Badal earlier. The said report had indicted many persons including S. Parkash Singh ....
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....r by the Court. It is to this delicate task that we must now devote ourselves. 16. Ere we come to the language of the existing provision itself, it becomes indeed necessary to examine, however, briefly, its legislative history. The Code of Criminal Procedure 1898 did not contain any specific provision therein corresponding to the present section 438 for specifically granting anticipatory bail. Consequently there was a sharp divergence of judicial opinion in the various High Courts about the exercise of any such power and the weight of authority tended to the view that there was no such power vested in the Court. When the matter of the revision of the Code came up before the Law Commission, it considered this aspect in its forty-first report (dated the 24th September, 1969). The desirability of introducing a fresh provision for conferring the power of anticipatory bail on the Courts was opined in the following terms;-- "**. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false causes for the purposes of disgracing them or for other purposes by getting them detained in jail for some days. In....
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....o be recorded, and if the Court is satisfied that such a direction is necessary in the interests of justice." Clause 447 aforesaid of the draft bill came to be ultimately enacted as section 438 of the Code of Criminal Procedure, 1973. 18. Inevitably the argument here must revolve around the language of section 438 and for facility of reference, the relevant part thereof may first be set down:-- "438(1) When any person has reason to believe that he may be arrested on an 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; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducemen....
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....s be difficult to hold that an extraordinary and exceptional power like the one under Section 438, could be vested in all the Courts aforesaid in totally absolute terms. More than two centuries ago, Lord Mansfield in the case of John Wilkes (1770) 4 Burr. 2528 stated in classic terms "Discretion means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful." 21. It is unnecessary to dissert long on this aspect because their Lordships in Balchand Jain v. State of M.P. A.I.R. 1977 S.C. 366, have given a conclusive answer against the view canvassed on behalf of the petitioners. Fazl Ali J. observed in no uncertain terms as follows:-- "Section 438 does not contain unguided or uncanalised powers to pass an order for anticipatory bail, but such an order being of an exceptional type can only be passed if, apart from the conditions mentioned in Section 437, there is a special case made out for passing the order. The words "for a direction under this section" and "Court may, if it thinks fit, direct" clearly show that the Court has to be guided by a large number of considerations including those mentioned in Sectio....
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....rent and it was open to the petitioner to choose either of these two. Plainly, the ratio of the decision has no relevance to the point before us. In Parhlad Singh v. U.T. Chandigarh, 1975 P.L.J. (Cr.) 186, again the issue falling for determination was whether after the rejection of a petition of anticipatory bail by the Sessions Court a second application could lie. It was held that the same was not barred. The judgment is obviously of no aid to the petitioners in the present context. Similarly in Hari Ram v. State of Haryana - 1976 P.LR. 1 we are unable to find any mention or observation relevant to the point before us. We may also notice that Mr. Harbhagwan Singh, learned counsel for one of the petitioners apparently repelled on his main contention by binding precedent and had himself contended that section 438, Criminal Procedure Code, is not to be read in isolation but along with preceding section 437. This argument by itself implies that the limitations clearly spelled out from Section 437 are inherently implicit in the exercise of power under section 438. This, indeed, has authoritatively been laid down in Balchand Jain's case A.I.R. 1977 S.C. 366. 25. We must, therefo....
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....he learned Advocate General contended that the word 'accusation' though not actually defined in the Code has nevertheless a known legal connotation. Reference was made to both the wharton's Law Lexicon 14th Edition page 10, and the Law Terms and Phrases by Aiyer 1973 Edition page 18 to show that the word 'accusation' means formal levelling of a charge or an offence against a person. The aforesaid condition, however, is not enough by itself and there must be a reasonable apprehension or belief in the mind of the petitioner that he would be arrested on the basis of such an accusation. It was argued that the sine qua non for invoking the jurisdiction of the Court under section 438 is the simultaneous existence of both the conditions aforesaid. 29. We believe that the learned Advocate General is on firm ground in his aforesaid submission. The power under section 438 is not to be exercised in a vacuum, but only on the satisfaction of the conditions: spelled out in the section itself. To import the language of civil law the jurisdictional fact for the exercise of the power under section 438 appears to be the co-existence of the two conditions, namely, an existing a....
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....ovisions. Again, in such a situation, if the petitioner commits an entirely fresh non bailable offence and a case is registered under section 154, the investigating officer would be rendered powerless to do his duty of arresting the offender(s) under section 157(1) and to proceed further with the investigation of the case. Section 204 authorises issuance of non-bailable warrants by a Magistrate in a warrant case and even exercise of this judicial power would be cut down in the case of a person enlarged on blanket anticipatory bail. 32. It is a settled rule of interpretation that a statute must be construed as a whole and any interpretation of a particular provision, which would render other material provisions nugatory, is to be avoided, if possible. Applying this maxim also, it is plain that the grant of blanket anticipatory bail cannot be read into section 438, Criminal Procedure Code. 33. We have very closely perused the relevant sections of the Code pertaining to the grant of bail and bonds etc., and are unable to locate any provision which either in terms or by necessary implication would warrant the grant of a blanket anticipatory bail by a Court. Despite being repeated....
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....rring judgment first observed as to the nature of this power as follows:-- "Now, this power of granting 'anticipatory bail' is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail' that such power is to be exercised. And this power being rather of an unusual nature, it is entrusted only to the higher echelons of judicial service, namely, a Court of Session and the High Court". The exceptional nature of this power was further highlighted by Pazl Ali, J., who prepared the main judgment in the following words:-- "It would thus appear that while the Law Commission recommended that provision for an order of anticipatory bail to be effective when a person is arrested should be made, at the same time it stressed that this being an extraordinary power should be exercised sparingly and only in special cases". As regards the guidelines and the limitations on the exercise of the p....
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....before this Bench is thus narrowed down to determine and elucidate the kind of the exceptional cases in which this power is to be exercised and the nature of the special case, which the petitioner must make out for securing an order in his favour. In Balchand Jain's case A.I.R. 1977 S.C. 366 their Lordships were not called upon to elaborate the exceptional circumstances or the kind of the special case to be made out which would warant the exrcise of this extraordinary power. 36. The broad canvas against which the significant question aforesaid has to be examined cannot be better spelled out than in the memorable words of Lord Porter in Emperor v. Khwaja Nazir Ahmed, A.I.R. 1945 P.C. 18: "In their Lordships' opinion, however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have, free access to a Court of justice se that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within the....
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....onstitution of India which is almost in similar terms. However, if the investigation cannot be completed within the period of 24 hours aforesaid, the Code makes express provision therefore by section 167 and subsection (2) of the same is pertinent and the relevant part thereof may be set down here for facility of reference:-- "167(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 forward to a Magistrate having such jurisdiction: Provided that-- (a) the Magistrate may authorise detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days) if he is satisfied that adequate grounds exist for doing so." Now, reading the relevant provisions together, it is plain that in a serious cognizable offen....
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....erious crime is unearthed only when the offender is taken unaware and forthwith confronted and questioned regarding the commission of the same. It is therefore, that the law warrants the arrest and detention in police custody of an offender who has committed a cognizable crime for a period of up to 24 hours without any judicial intervention. The learned Advocate-General contended that this period is crucial to sometime securing invaluable pieces of incriminating evidence or get clues and leads for further investigation into the same. The grant of anticipatory bail at the very threshold, therefore; denudes the investigation of its vital elements of surprise, speed and swiftness. Counsel further contended that even after the initial period of 24 hours, the investigating officer is entitled on adequate material to secure the physical custody of an offender from a Magistrate under section 167(2) of the Code for maintaining continuity of the investigation. With great plausibility this was highlighted as an invaluable right without which no serious or intricate crime which requires the questioning of the accused person can possibly be dug out or detected. They very purpose of section 167....
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....a case where a party seeking bail would not zealously offer to join the investigation thereof and to similarly undertake not to tamper with the witnesses. If this by itself were to be sufficient then perhaps the provisions of section 167(2) need hardly ever be resorted to. 41. Once one arrives at the conclusion that the mere joining in the investigation by a person on bail cannot be equated with investigation under Section 167(2) of the Code then it becomes plain that as soon as an effective order of anticipatory bail has been made under section 438, the provisions of section 167(2) cannot come into play thereafter. It is obvious that when a superior Court has enlarged a person accused of an offence on anticipatory bail then a Magistrate cannot possibly authorise his detention in police custody, however, legitimate a case therefor the investigating agency may be able to make. The end-result of the grant of anticipatory bail in such a case, therefore, would be that the investigating agency must thereafter be denuded of its right to interrogate the offender in custody and the magistracy denied its discretion to grant a police remand, however, incriminating the material on which th....
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....any person to a police officer in the course of investigation and this obviously includes the offender himself. Sections 25 and 26 of the Indian Evidence Act again bar the admissibility of any confession made to a police officer. To this strict rule an exception is provided by section 27 of the said Act, the well-known provisions of which may also be quoted for facility of reference: -- "27. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved". Relying upon the afore-mentioned provisions, the learned Advocate-General of Haryana had contended that not only is the investigating agency entitled in a proper case to interrogate the accused in custody but in order to obtain admissible evidence of incriminating facts having been recovered in consequence of information received from the offender be must necessarily be in the custody of a police officer at the time. It was plausibly contended that recoveries made under sectio....
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....l be deemed to be in the custody of a police officer. We had repeatedly pressed the learned counsel for the petitioners to cite any authority wherein it has been held that a person granted bail by the Court is nevertheless deemed to be in the custody of a police officer for the purposes of section 27. Learned counsel had fairly conceded their inability to cite any such decision except the one referred to hereafter. The learned Advocate General of Haryana, however, contended on principle that the grant of bail under the direction of the Court is a contradiction in terms with the person being in the custody of a police officer. Counsel forcefully contended that once an accused person is enlarged on bail, no question of his being in actual or constructive custody can arise. Such a person, apart from being a free man, can at best be said to be in the custody of the Court or that of his surety. 48. As already noticed on this point, we have not been well assisted by the citations of judicial precedent. As at present advised, we agree with the submission of the learned Advocate-General. It appears to us that a person lawfully released on bail either on his own bond or with sureties can....
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....here a legitimate case for the exercise of discretion by the Magistrate to remand the offender to police custody can be made out under section 167(2) of the Code or a reasonable claim to secure incriminating material from information likely to be received from the offender under section 27 of the Evidence Act can be made out, the power under section 438 of the Code be not exercised. 50. It bears repetition that Balchand's case A.I.R. 1977 S.C. 366 has authoritatively laid down that in respect of non-bailable offences all the conditions imposed by section, 437 of the Code are implicity contained, in section 438 as well. Now a reference to section 437 would show that it, in terms, contains a prohibition to grant bail in all cases where there appears reasonable grounds for believing that the offender has been guilty of an offence punishable with death or imprisonment for life. The nature and the seriousness of the charge by itself, therefore, is one of the important considerations for the non-release of an accused person on bail. This aspect of the matter was authoritatively considered by their Lordships in The State v. Captain Jagjit Singh, A.I.R. 1962 S.C. 253 on the basis of....
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....ere the offence is one which is punishable with death or imprisonment for life". We, are therefore, of the view that the discretion in section 438, Criminal Procedure, Code, should not be exercised with regard to offences punishable with death or imprisonment for life, unless the Court at that very stage is satisfied that such a charge is false or groundless. 51. On behalf of the States of Punjab and Haryana, our attention was then sought to be focused on both the peculiar nature of the crime alleged herein and the time of its commission. Mr. I.S. Tiwana, the learned Additional Advocate-General submitted that the two petitioners held high positions of governmental and political power at the time and were part and parcel of a huge conspiracy to commit corruption and embezzlement, the ramification of which runs into crores of rupees. He contended that whatever may be the consideration of individual rights, the larger interest of the State would inhibit the exercise of the exceptional jurisdiction under section 438 of the Code in these cases. 52. The learned Advocate-General of Haryana has highlighted that these are crimes committed in the heyday of the last Emergency when un....
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....caste it is idle to expect from the Investigating Agency or the informant at its very inception to lay before the Courts adequate material to conclusively implicate the person complained against. It is to be borne in mind that the issue when unbridled executive power loomed large over the country, of the investigation. Therefore to require the investigating agency at the very threshold to prove the guilt of the accused persons would be putting them under a burden which would be impossible to discharge. This aspect of the matter has been succinctly stated in the following two conclusions arrived at in Somabhai Chaturbhai Patel's case 1977 Guj. L.R. 131 (supra):-- "The investigation being incomplete it would neither be feasible nor possible to anticipate the material that might be eventually collected. The Court will not be justified in acting on the hypothesis that no further or more serious material incriminating the accused will be unearthed". 55. Again one cannot lose sight of the fact that in modern times with the inevitable concentration of powers in the higher echelons of the Government and the ruling political parties, the incumbents of such offices h....
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....owing observations:-- "* * The third consideration is the larger interest of the State, as pointed out by this Court in State v. Jagjit Singh, A.I.R. 1962 S.C. 253 (supra). We feel that this interest was not adequately kept in view by the High Court and this requires that the respondents should be kept in custody for six months from the order of the High Court, dated August 1, 1969". 57. As we said earlier, it is difficult to unravel the crimes of corruption. It is harder to detect the same when it is committed by what is now a well-known category of white-collar criminal. However, it is the hardest to bring to book when such crime stems from the corridors of executive power and the niches of high offices. It is, therefore, that the Courts must ever remain wary of throttling and in any way impeding the legitimate investigative process in such cases. We are, therefore, of the view that in cases of serious economic offences involving blatant corruption at the higher rungs of executive and political power, the larger interest of the public and the State demand that the extra ordinary power under section 438 of the Code be not exercised in favour of the offenders at the ver....
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....er must show and what is the nature of special case which he must establish over and above the requirements of section 437. It appears to us that these further limitations which fetter the discretion under section 438 would require that the petitioner should satisfy the Court that the accusation against him does not stem from ordinary reasons of furthering the ends of law and justice in relation to the case but solely from some other dishonest motive with the object of humiliating the petitioner. In other words, apart from coming within the four corners of section 437 the petitioner here must establish that the charge levelled against him is mala fide and stems from ulterior motive. 60. Now what is to be the basis and what is the nature of the material evidence upon which the Court is to be so satisfied for making the exceptional type of order under section 438. To our mind a mere allegation of mala fides by an offender and a vehement claim of innocence put forward by him are manifestly insufficient for arriving at such a conclusion by the Court. We have yet to come across a case where a person seeking bail on a serious charge does not plead innocence and further does not allege....
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....m. This could be the kind of cases where the Court on a serious charge would be able to hold that a special case has been made out by the petitioner for the exercise of the extraordinary and exceptional power under section 438. We refrain from elaborating further on this aspect of the case on principle because it seems to be equally well covered by an authority of the Division Bench of Orissa High Court in Bhagirathi Mahapatra v. State 1975 Cr. L.J. 1681 Supra wherein their Lordships observed as follows:-- "These tests are to be applied by the Court while considering an application for anticipatory bail. In addition, the Court must be satisfied that the arrest and detention of the petitioner would be not from motives of furthering the ends of justice in relation to the case, but from some ulterior motive, and with the object of injuring the petitioner. The exercise of the power to grant anticipatory bail should be restricted to exceptional cases, whose facts satisfy the above conditions. Ordinarily, the Judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon' them the duty of enquiry. The po....
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....irresponsible persons or officers who may some times be in charge of prosecution." It is evident from the above, that their Lordships conceived the normal application of the provisions of section 438 to cases where the charge itself is of a frivolous nature. A case of this kind would be a fit one to exercise jurisdiction in order to needlessly prevent the humiliation of the offender. Similarly the source from which such a charge stems has been considered of significance and where it has been levelled by unscrupulous or irresponsible persons, that would itself be a ground for consideration in the exercise of the power. We have in the earlier part of this judgment also indicated that where the Court can on adequate material come to a firm conclusion that the charge is totally false, it may nevertheless resort to section 438, however serious, be the nature of the crime. It is unnecessary to further elaborate this matter and all that we wish to indicate is that section 438, Criminal Procedure Code, appears to us in the nature of a shield for protecting entirely innocent persons from malicious humiliation, if the necessary conditions for its exercise are satisfied. Care has to be tak....
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....ial and the accusation appears to be false and groundless. 65. In the light of the aforesaid principles we may now proceed to examine first the cases of the two petitioners which were placed before the Full Bench by the reference. Apart from other considerations, learned counsel for the petitioners highlight their claim to anticipatory bail on the ground that both the petitioners have held high office in public life, both in the Government or Semi-Government institutions as also in the organisational set up of the then ruling party. It is submitted that they are now men of substance who are not likely to abscond and would willingly face trial. 66. Frankly we have been rather unable to appreciate the aforesaid argument based obviously as it is on the status of the petitioners. Learned counsel for the petitioners could hardly contend that every person charged with serious crime including that under section 469, Indian Penal Code, which is punishable with life imprisonment would be entitled to knock at the door of the Court for anticipatory bail. Now if the charge against the petitioners is untenable, it would be so irrespective of their status in public life or with regard to t....
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.... it can be so established perhaps such an action may be struck down in an appropriate case. But the petitioners level a blanket allegation that the whole State machinery in their case is acting in disregard of the law and with dishonest motives. It would indeed be a sad day where the Courts are asked to hold that the State as an institution or the Government as an organisation is enmass acting mala fide. We are unable to hold that on the mere allegations of the petitioners any such weird claim stands established before us. Nor can we deviate from the salutary rule that the presumption in that the State and its limbs act bona fide and for public weal and the burden lies heavily on those who wish to establish otherwise. 69. The learned Additional Advocate-General of Punjab highlighted the fact that the present case was registered on 26th August, 1977 after a brief preliminary collection of facts by a very responsible officer in the Police Organisation. He submitted that not only two petitioners but virtually all the persons specified in the F.I.R. have secured interim anticipatory bails from this Court. With considerable deference it was submitted that the investigation of the cas....