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1985 DIGILAW 68 (PAT)

Meena Devi v. State of Bihar

1985-02-25

P.S.MISHRA

body1985
JUDGMENT : This application has been disposed of on 21.2.1985 with a promise that reasoned JUDGMENT : shall follow for the conclusions that I have already recorded. 2. After the JUDGMENT : of the Supreme Court in Gurbaksh Singh Sibbia etc. v. The State of Punjab (A. I. R. 1980 Supreme Court 1632) no occasion to decide the scope of section 438 of the Code of Criminal Procedure should arise. Mr. Balbhadra Prasad Singh, learned counsel for the petitioners has, however, insisted that this Court should spell out when shall it entertain application for bail in anticipation of arrest. I am doing so only to reiterate the words of the Supreme Court- "Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a 'Code for the grant of anticipatory bail', which really is the business of the legislature, it can at best furnish broad guidelines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms of express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail "if it thinks fit". The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion concerned upon the Courts by law". The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion concerned upon the Courts by law". An attempt by the High Court of Punjab and Haryana to lay down some rules of caution, in Gurbaksh Singh has been rejected, in words of the Supreme Court:- "A person who has yet to lose his freedom by being arrested asks for freedom in the event, of arrest. That in the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought, brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable offence, asks for bail. In the latter situation, adequate data is available to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in section 437 of the Code of Criminal Procedure. The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute conditions which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General. Our answer, clearly and emphatically, is in the negative. The High Court and the Court of Session to whom the application for anticipatory bail is made, out to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in section 437 or which are generally considered to be relevant under section 439 of the Code of Criminal Procedure. 3. Mr. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in section 437 or which are generally considered to be relevant under section 439 of the Code of Criminal Procedure. 3. Mr. Balbhadra Prasad Singh has rightly submitted that intention of the Supreme Court while interpreting section 438 of the Code of Criminal Procedure is in the form of pronouncement as to what the law is and they say that the court, to which the application is made, "must apply its own mind to the question and decide whether a case has been made out for granting such relief". He is also right in submitting that the existence and non-existence of power and duty is a matter of law and not of fact and it has to be determined with reference to the terms of the enactment. The highest court of the land has interpreted the terms of the statute and has laid down and declared what is to be observed as the law. 3A. Coming to the judicial discretion, the Judge is put to a more severe test. He has to assess the fact, situation, adjudicate and notice whether the demand of the applicant for his release on bail in anticipation of arrest, is legitimate or not. In doing so, he has to decide cases as they come before him mindfully of need to keep passion and prejudices out of his decision. 4. In Boyd v. United States : 116 U.S. 616, it is said- "Illegitimate and unconstitutional practices get their first footing in what way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and lateral construction deprives them of half their efficacy and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of Courts to be watchful for the constitutional rights of the citizen and against any stealthy encroachments thereon". 5. A close and lateral construction deprives them of half their efficacy and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of Courts to be watchful for the constitutional rights of the citizen and against any stealthy encroachments thereon". 5. I have no manner of doubt that a court cannot limit a power conferred upon it in the interest of any person, upon any notion of its own convenience and thus wither and render sterile a public law by restricting and applying it in a narrow or pedantic manner. Such a power is coupled with a duty to exercise the discretion conferred upon it judicially. 6. I unhesitantly hold that a person, having a reasonable belief that he may be arrested of accusation of having committed a non-bailable offence, may apply to the High Court of the court of Session and that court may direct that in the event of such arrest, be shall be released on bail. Election of one or the other court, that is to say, the High Court or the court of Session shall be his and the court concerned shall be obliged to consider his application and decide whether to release him on bail in anticipation of arrest or to refuse to do so. I find support to my view in the words of the Supreme Court also in Gurbaksh Singh. The Supreme Court has said:- "...if an application for anticipatory bail is made to the High Court or the Court of Section it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under S. 437 of the Code as and when occasion arises. Such a course will defeat the very object of Section 438". Those words of wisdom are expressed primarily due to court's concern with the freedom of the individual and the fundamental right under Article 21 of the Constitution of India. Such a course will defeat the very object of Section 438". Those words of wisdom are expressed primarily due to court's concern with the freedom of the individual and the fundamental right under Article 21 of the Constitution of India. The Law Commission in recommending for the provision under section 438 of the Code has said in its 41st report:- "…The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from the false cases, where 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 there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail". 7. In view of the discussions above, the following conclusions are irresistible. Any person having reasonable apprehension that he may arrested, on the allegation that he has committed non-bailable offence, can move this Court or the Court of Session and the court while hearing the application shall draw its own conclusion and decide the case on merits. 8. The problem, however, is not solved by saying what I have found above. Mr. Balbhadra Prasad Singh has made a grievance of this Court occasionally making exception and some times permitting the petitioner to renew his prayer for anticipatory bail after moving the Sessions Judge and after his application for anticipatory bail is dismissed by him. He has expressed that such ORDER :shall operate as an abridgement and shall be ultra vires. He has been more severe in his attack to such mode being adopted by the court, by saying that a Judge by asking a suitor coming before it to move the Sessions Judge before he would be heard in this Court shall be plainly acting without proclaiming the fact, in an ultra vires manner which in legal parlance would be a mala fide exercise of the power. His submission in short is that adjudication by the Judge should conclude by either releasing the petitioner on anticipatory bail or by rejecting his application. His submission in short is that adjudication by the Judge should conclude by either releasing the petitioner on anticipatory bail or by rejecting his application. By adopting a new method of asking the petitioner to move the court of Session first before his application for anticipatory bail is considered by the Court, the Judge shall violate the mandate of deciding the case himself. He shall be doing it only by investing a plain language with some other than its natural meaning. 9. I have given my anxious consideration to Mr. Singh's contention and I record my complete agreement with the proposition that the legislature has coupled the power under section 438 of the Code with duty for a Judge to determine whether he shall grant anticipatory bail or not. There is no discretion for refusal of the exercise of the power. There is no room for a presumption of a limited grant of power constructively when the power exists, both for exercise and non-exercise of the power. In its quest however to strike a balance when to grant and when not to the Court is faced with vexing question. Section 438 of the Code is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. Can it then be said that the court shall grant anticipatory bail to any and every petitioner? In Gurbaksh Singh (supra), the Supreme Court has said "…An ever-generous infusion of constraints and conditions which are not to be found in S. 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in S. 438 must be saved, not jettisoned." These observations have come after a consideration of an earlier JUDGMENT : in Balchand Jain v. State of Madhya Pradesh (A. I. R. 1977 SC 366) and after recording agreement with the conclusion that section 438 of the Code is an extraordinary remedy and should be resorted to only in special cases. Proceeding further in the said JUDGMENT : (Gurbaksh Singh) (supra) the Supreme Court has said- "In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the ORDER :of anticipatory bail he will flee from justice, such an ORDER :would not be made. But the converse of these propositions is not necessarily true. That is to say it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by malafides; and equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not bring secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the State" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh (1962) 3 S. C. R. 622 : (A. I. R. 1962 SC 253) which, though, was a case under the old S. 498 which corresponds to the present S. 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail". A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail". Having said as above, the Supreme Court has further said- ".........no hard and fast rules can be laid down in discretionary matters like the grant or refusal of bail, whether anticipatory or otherwise. No such rules can be laid down for the simple reason that a circumstance which, in a given case, turns out to be conclusive, may have no more than ordinary signification in another case", The Supreme Court has thus concluded:- "We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under S. 438 by a wise and careful use of their discretion which by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the ground that, after all, "the legislature in its wisdom" has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom. If they err, they are liable to be corrected". 10. Since the legislature has given to the court a wide discretion and the court has to exercise its jurisdiction by a wise and careful use of its discretion entrusted to its judicial care not only egoistic purposes of the individual who seeks anticipatory bail but that of the society has also to be borne in mind. 10. Since the legislature has given to the court a wide discretion and the court has to exercise its jurisdiction by a wise and careful use of its discretion entrusted to its judicial care not only egoistic purposes of the individual who seeks anticipatory bail but that of the society has also to be borne in mind. Even proceeding on the presumption that the petitioner seeking anticipatory bail is still a free man entitled to the presumption of innocence, the court shall still be required, before granting anticipatory bail, to decide whether protective umbrella of section 438 of the Code should be provided to him or not. There can be no difficulty in granting anticipatory bail, if the court is satisfied that the proposed accusation appears to be actuated by mala fides. 11. If a court is satisfied that the accusation appears to stern not from motives of furthering the ends of justice but from some ulterior motive, it shall generally direct release of the petitioner on bail in the event of his arrest. In cases where the accusation appears apparently true and quite serious and interest of justice appears to be served more by his arrest than securing hi s freedom, the court, in my opinion shall be justified in refusing to the petitioner bail in the event of arrest. The task of deciding even prima facie that the accusation appears to stem not from the ends of justice but for some ulterior motive and/or notwithstanding the nature and seriousness of the proposed charges and other considerations, the petitioner should be enlarged on bail in the event of arrest, is complicated more by the ever increasing unscrupulous applications. A petition may appear to impress that the accusation appears to stem from ulterior motive, that although allegations are pretty serious, yet the petitioner should be granted bail in the event of arrest. But it might be one contrived in a manner that the truth is submerged and untruth or half truth is concocted to give to the petitioner a genuine look. There shall be no greater sin than to deny to any person liberty on the basis of false accusation, the object being to enjure and to humiliate the petitioner by having him arrested. There shall be no greater sin than to deny to any person liberty on the basis of false accusation, the object being to enjure and to humiliate the petitioner by having him arrested. But equally wrong will be to presume that one has been accused of committing a non-bailable offence from some ulterior motive without there being any basis for the same. 12. Cases of direct allegations in the first information report disclosing the character of the accused and the nature of the crime do provide to the court materials to judge whether anticipatory bail should be granted or not. Although allegations are direct and serious, yet a plausible defence is put forward by a petitioner creating doubts about the correctness of the allegations. Truth and falsehood are sometimes found inextricably interlinked in the first information report and are similarly interlinked in the petitions for bail. The context of the events, likely to lead to the making of the charges, in many cases are unclear and in many cases though appear to exist; arc contrived. Judicially trained mind shall be justified at this stage to seek disclosure and enquiry before releasing a person on bail in the event of arrest. Though courts' hands are long enough and its power quite pervasive, yet enquiry may not be easy. 13. A petitioner, moving the Sessions Judge and getting his case considered for anticipatory bail by him, is not debarred from moving this Court again, as is done in the cases for regular bail. A healthy practice has developed in our State that for moving the High Court under section 439 of the Code, a person in custody first moves the court of Session. Section 439 of the Code says that a High Court or court of Session may direct that any person accused of an offence and in custody be released on bail. 14. I have already noticed and held in .agreement with the contention of Mr. Balbhadra Prasad Singh that any person may apply to the High Court or court of Session for a direction under section 438 of the Code because it says- "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..". But this difference notwithstanding the jurisdiction of the High Court and the court of Session to direct for the release of any person in custody or to direct that in the event of such arrest, he shall be released on bail is concurrent. Without denying that innocent persons are implicated in false cases and also without conceding the right of a bona fide petitioner to move this Court for anticipatory bail, I want to record that instances of unscrupulous petitioners moving this Court for anticipatory bail are many and in recent times such instances have out-grown the number of genuine petitioners. If I start cataloguing the instances of the cases in which the nature and seriousness of the offence and the nature of evidence in support of the prosecution are underscored the list will be a big one precautions taken by the court by examining the police papers and other materials before finally concluding, whether the petitioner should be released on anticipatory bail or not, has posed a new problem. When case diaries are called for, they are reported lost in the transit. The interim ORDER :s not to arrest or to release on interim bond are continued for indefinite period and unusually long period, by devices which are better not stated. Courts attempt to objectively satisfy their judicial conscience is frustrated by manipulations. True, all these are done at the instance of the unscrupulous persons. In the ORDER :s passed more than once such courses adopted by unscrupulous petitioners have been deprecated. Unlike the practice in this Court, where the prosecutor keeps himself away from the records and police papers, in our session Courts the Public Prosecutor makes the case diary and other relevant papers available. Even in cases in which the session Court calls for the case diary etc. Territorial compactness and nearness of the police stations from the court helps the session Court in getting the police papers etc. sooner than the High Court. Why then, enquiry, as to whether on the facts of the given cases, the petitioner should be granted anticipatory bail or not, should not be held by the Sessions Judge? Is there any denial to the petitioner of his right to apply to the High Court for anticipatory bail by asking him to move the Sessions Judge first and then come to this Court for anticipatory bail? Is there any denial to the petitioner of his right to apply to the High Court for anticipatory bail by asking him to move the Sessions Judge first and then come to this Court for anticipatory bail? It shall not cause injury to a person genuinely and reasonably apprehending that he may be arrested on allegations that he has committed non-bailable offence but the court shall have the benefit of an enquiry by the court of Session. If the petitioner is not granted anticipatory bail by him, to judge whether on such facts on which the court of Session has Tightly refused anticipatory bail or not this Court shall be competent and grant or refuse in its discretion. 15. I am of the view that if this Court finds that enquiry by it should await and the petitioner should first move the Sessions Judge, it can make such an ORDER :and there shall be no illegality in it. Similarly a petitioner finding that due to inadequacy of the materials, this Court may not agree to enlarge him on anticipatory bail, may pray to withdraw his application and after his application for anticipatory bail is dismissed either as withdrawn or permitted to be withdrawn by this Court; he may move the Sessions Judge for anticipatory bail. Any apprehension that such an ORDER :shall operate as prejudicial, is, in my view, unfounded. 16. I, thus, conclude that- (1) any person having reasonable apprehension that he may be arrested on allegations that he has committed a non-bailable offence can move this Court or the court of Session for bail in anticipation of arrest. On the ground that he has not moved the court of Session, this Court cannot decline to entertain the application; (2) the court, while examining whether the petitioner should be protected in terms of section 432 of the Code of Criminal Procedure or not, shall draw its own conclusions and shall decide the case on merits; (3) it shall not be unreasonable or improper to permit the petitioner to renew his prayer for anticipatory bail before the Session Judge after his application for anticipatory bail is either dismissed as withdrawn or permitted to be withdrawn by this Court. Any apprehension that such ORDER :shall operate as a precedence, in my view, is unfounded; and (4) while holding enquiry in course of hearing the application for anticipatory bail, this Court may hold that the petitioner should first move the Sessions Judge. But it shall always be open to this Court to examine the poi ice papers and other materials, if necessary. 17. For the reasons recorded above and the reasons stated in the ORDER :dated 21.2.1985, the application on behalf of petitioner no. 2, 3 and 4 is dismissed and the application on behalf of petitioner no. 1 is allowed. Petitioner no. 1 has already been ORDER :ed to be released; in the event of arrest or surrender, on furnishing bail bond of Rs. 5,000/- (five thousand) with two sureties of the like amount each to the satisfaction of the Sub-divisional Judicial Magistrate, Khagaria, in connection with Parbatta P. S. case no. 0004/85 dated 5.1.1985, subject to the conditions, as la id down under section 438 (2) of the Code of Criminal Procedure.