P.V. Narasimha Rao vs State (Central Bureau Of ...
1996 Latest Caselaw 950 Del

JUDGMENT

Mohd. Shamim, J.

(1) A learned Single Judge of this Court was of the view while deciding Crl.M.(M) No 2341/96, entitled P.V.Narasimharao v. State (CBI), on September 26,1996 that an application for anticipatory bail in a case where summons only have been issued would not be maintainable as, according to him, there was no apprehension of arrest in such a case. However, when another petition being Crl. M.(M) No. 2733/96 entitled P.V.Narasimharao v. State (CBI) came up for hearing the learned counsel for the petitioner referred to the observations of Punjab & Haryana High Court in Puran Singh v. Ajit Singh, reported as 1985 Crl.L.J. 897, to the following effect: "THE grant of bail under Section 438(1) by the High Court or the Court of Session is, to my mind, dependent on the merits of a particular case and not the order of the Magistrate choosing to summon an accused through bailable or non bailable warrant."

(2) The learned counsel thus on the basis of the above contended before the learned Single Judge that an application for anticipatory bail was maintainable even in a case where only summons have been issued for the appearance of the accused before the Court. In view of the divergence of the view in between the learned Single Judge of this Court and that of Punjab & Haryana High Court, the learned Single Judge requested the Hon'ble Chief Justice to constitute a larger Bench to consider the above point. It was in the above circumstances that this case came up for hearing before this Bench.

(3) It is manifest from above that the only short point which arises for adjudication before this Bench is as to whether an application for grant of anticipatory bail under Section 438 of the Code of Criminal Procedure ( "Cr.P.C." for short) would be maintainable even in a case where the Court has chosen to issue summons only for the appearance of the accused?

(4) Learned counsel for the petitioner Mr. R.K.Anand and Mr. P.P.Malhotra, Senior Advocates, have contended with great zeal and fervour that the legislators in their wisdom have conferred very wide powers while drafting Section 438 Criminal Procedure Code .on the Courts to enlarge accused persons on bail in anticipation of their arrest. The only condition precedent according to the learned counsel, is (a) that there must be an apprehension of arrest and (b) an accusation levelled against the accused with regard to the commission of a non bailable offence. If the said two things are shown the Court need not look any further and the Court would be competent enough to grant the bail in such cases and under such circumstances. Consequently, competence and the powers of the Court cannot be narrowed down by reading into the said Section, restrictions and fetters on the powers of the Court which are not there. Hence the Court can grant anticipatory bail if the above two ingredients are shown even in cases where summonses have been issued since the power of the Court is not dependent upon the mode where through an accused is asked to appear. It can be through a warrant, bailable or non bailable. It can be also through a summons.

(5) The learned Public Prosecutor, Mr. Dutt, on the other hand, has argued that in cases where the Court in his wisdom has chosen to issue only the summonses for the appearance of the accused then there is absolutely no apprehension for the arrest of the accused. Hence an application under Section 438 Criminal Procedure Code . would not be maintainable. According to the learned Public Prosecutor to invoke the jurisdiction of the Court under Section 438 Criminal Procedure Code . the party approaching the Court must show that there is in fact an apprehension of his being arrested.

(6) Since we are concerned with the construction of Section 438 Criminal Procedure Code . it would be just and proper to examine the provisions of the said Section before proceeding any further in the matter. Section 438 Criminal Procedure Code . is in the following words:-

"438.Direction for grant of bail to person apprehending arrest.-

(1)WHENany 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)WHENthe 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 inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii)a condition that the person shall not leave India without the previous permission of the Court; (iv)such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section."

A close scrutiny of the relevant provisions of law alluded to above would reveal that an applicant who prays for release on bail in anticipation of his arrest must show the following: (a)He must be having a reasonable apprehension that in case he does not secure an order of bail in that eventuality he would be arrested. (b)There must have been levelled against him an accusation of commission of a non bailable offence. (c)He must not have been arrested before the moving of the application for grant of anticipatory bail.

(7) It is thus crystal clear from above that the power under Section 438 Criminal Procedure Code . to grant anticipatory bail is of an extra-ordinary character inasmuch as the bail is granted only after arrest whereas an order of anticipatory bail is to be passed only before arrest. It is of a wider amplitude. It is without any strings and fetters attached to it except those referred to above. The legislators in their wisdom have chosen not to impose any sort of checks, restrictions and impediments in the way of the Courts to grant bail in cases where the Courts come to the conclusion that it is a fit case for them to do so. They will be free to do so without any let or hindrance.

(8) To illustrate the above point, it would not be out of place over here,nay, it would throw light on the matter in controversy before us, if we peep into the circumstances which led to the incorporation of the above said Section into the body of the Criminal Procedure Code.

(9) It was the Law Commission of India which took the initiative for the introduction of the above said Section in its 41st Report dated September 24,1969. It was observed in para 39.9 " The suggestion for directing the release of a person on bail prior to his arrest ( commonly known as "anticipatory bail") was carefully considered by us. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. 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 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.

(10) We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter.

(11) In order to settle the details of this suggestion, the following draft of a new section is placed for consideration:- 497A.(1)When any person has a reasonable apprehension that he would 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. That Court may, in its discretion, direct that in the event of his arrest, he shall be released on bail. (2)A Magistrate taking cognizance of an offence against that person shall, while taking steps under section 204(1), either issue summons or a bailable warrant as indicated in the direction of the Court under sub-section (1). (3)If any person in respect of whom such a direction is made is arrested without warrant by an officer in charge of a police station on an accusation of having committed that offence, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, such person shall be released on bail."

(12) They further opined "We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted. But we found that it may not be practicable to exhaustively enumerate those conditions; and moreover, the laying down of such conditions may be construed as prejudging (partially at any rate) the whole case. Hence we would leave it to the discretion of the Court and prefer not to fetter such discretion in the statutory provision itself. Superior Courts will, undoubtedly, exercise their discretion properly, and not make any observations in the order granting anticipatory bail which will have a tendency to prejudice the fair trial of the accused."

(13) The suggestion made by the Law Commission was accepted by the Central Government. In the wake of the acceptance of the said suggestion, Cl.447 was introduced in the draft Bill of the Cr.P.C.1970 with a view to conferring powers on the High Courts and the Courts of Session to grant bail in anticipation of arrest.

(14) It is abundantly clear from the proposal of the Law Commission that initially they thought of imposing certain checks and restrictions on the powers of the Court to grant anticipatory bail. However, subsequently on giving a careful consideration to the facts and circumstances dropped the said idea and left it completely to the discretion and wisdom of the Courts. They did not do so because they reposed confidence in the Courts since the powers were being given only to the superior Courts such as Courts of Session and the High Courts. Furthermore, according to the Law Commission in case certain fetters, restraints and checks were put, in that eventuality, the very purpose of the granting of the powers was likely to be defeated. Admittedly the intention of the Legislature was to make it possible to the Courts to grant bail in anticipation of the arrest in those cases where a citizen felt an apprehension of being arrested. The Courts at that preliminary stage would not be in possession of the adequate material and data to apply the said checks, restraints and conditions, if put on the powers of the Courts, to the facts of that particular case. Hence it was thought safer to leave it to the sole discretion of the Court.

(15) It is amply clear from above that the legislators in their wisdom thought it fit and proper not to impose any conditions on the powers of the Courts to grant bail. Thus would it be proper to read into the Section some thing which is not there? It is a well settled principle of law that the Courts have to interpret the law as it is and not as it ought to be or as they think it should be. The Courts are not there to legislate and to tread into a territory which is forbidden for them. They are not permitted to weave a new texture replacing the original one.

(16) The question with regard to the grant of bail or non grant of it, is related to the liberty and freedom of an individual. The framers of the Constitution while drafting the Constitution of India envisaged in the Preamble of the Constitution the following: "WE,the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation." Thus the liberty of thought, expression, belief,faith and worship is one of the p illars of the present Constitution on which this magnificent edifice has been erected and stands upon. Furthermore, the framers of the Constitution granted to the citizens of this country protection of life and personal liberty. Art. 21 of the Constitution of India lays down that no person shall be deprived of s life and personal liberty except according to the procedure established by law. It is thus evident from above that the liberty of a citizen was of paramount importance in the eyes of the framers of the Constitution. It is said," Liberty is to the collective body, what health is to every individual body. Without health no pleasure can be tasted by man; without liberty, no happiness can be enjoyed by society. (Bolingbroke)" It was further observed by Carl Lotus Becker with regard to the liberty :" To suppose that our civil and political liberties are secure because they are abstractly defined in our written constitutions is to mistake the legal form for the living substance of freedom." Thus a duty has been cast on the shoulders of the Courts to see to it that, while dealing with the provisions of law relating to individual liberty and freedom, they should construe them in such a way which advances the object and intent of the legislature and curbs the mischief. Hence realising the importance of liberty Section 438 Cr.P.C. was introduced to guard an individual against accusations which may be false and which may have been brought simply to settle a score on account of political rivalry to disgrace and to malign a citizen. We are tempted here to cite a few lines in support of our above view from the view of the Hon'ble Supreme Court as reported in Gurbaksh Singh Sibia etc. v.The State of Punjab, ,....." By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep- grained in our Criminal Jurisprudence as the presumption of innocence. Though the right to apply for anticipatory bail was conferred for the first time by S.438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, in so far as the right to apply for bail is concerned. It had before it two cognate provisions of the Code: S.437 which deals with the power of Courts other than the Court of Session and the High Court to grant bail in non-bailable cases and S.439 which deals with the "special powers" of the High Court and the Court of Session regarding bail."

(17) Learned Public Prosecutor, Mr. Dutt, has vehemently contended that since summons have been issued against the accused person in the instant case hence the application under Section 438 Cr.P.C. would not be maintainable. We are sorry we are unable to agree with the contention of the learned counsel.

(18) We have already observed above that the Courts while dealing with an application under Section 438 Cr.P.C. enjoy very wide powers, unlike the powers of a subordinate Court which is riddled and hedged in by restrictions. Thus the learned Public Prosecutor, argues that the present application would not be maintainable in view of the fact that the Court has itself not chosen to issue a warrant of arrest; instead the learned Special Judge has issued a process in the form of summons to secure the appearance of the petitioner. Hence it cannot be called by any stretch of imagination that there is an apprehension of arrest. While putting forward the said contention the learned Public Prosecutor is oblivious of the fact that a charge sheet has already been filed before the learned Special Judge against the petitioners. They have been summoned to appear before the Court. Thus can it be said in the above circumstances that there is no apprehension in the mind of the accused persons that they would not be arrested? We feel the apprehension in the above circumstances is very much genuine and real and not a figment of the imagination of the petitioners. The petitioners admittedly have been accused of committing of a cognizable offence. Thus they can be arrested at any time by any officer of the police. They can also be arrested at the instance of the Court. Section 438(3) Cr.P.C. contemplates such a situation and provides for such an eventuality. We are inclined to reproduce it over again in order to substantiate our point. It lays down: ("If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).")

(19) Thus if the petitioners in the instant case have been without the interim protection, which this Court granted them, they could have been arrested by the police or even at the instance of the Court.

(20) A situation very much akin to the situation in hand arose before the Punjab & Haryana High Court in the case of Puran Singh v.Ajit Singh and Anr., reported as 1985 Crl.L.J. 897. While dealing with the said situation it was observed ...." The main governing factor for the exercise of jurisdiction under S.438, Cr.P.C., is the apprehension of arrest by a person accused of the commission of a non-bailable offence. The section makes no distinction whether the arrest is apprehended at the hands of the police or at the instance of the Magistrate. The issuance of a warrant by the Magistrate against a person, to my mind justifiably gives rise to such an apprehension and well entitles a person to make a prayer for his anticipatory bail. The High Court or the Court of Session may, however, decline to exercise its powers under S.438(1), Cr.P.C. keeping in view the fact that the Magistrate has summoned the accused through bailable warrant - i.e., a relief almost similar to what can be granted by the Court under S.438(1), Cr.P.C. yet that does not mean that the Court has no jurisdiction to grant anticipatory bail to such an accused person. The grant of bail under S. 438(1) by the High Court or the Court of Session is, to my mind, dependent on the merits of a particular case and not the order of the Magistrate choosing to summon an accused through bailable or non- bailable warrant."

(21) A case in which an accused person applied for bail in anticipation of his arrest at the stage of committal proceedings before the Magistrate came up for hearing before a Division Bench of the Madhya Pradesh High Court. The question which cropped up for consideration was as to whether an accused was entitled to apply for anticipatory bail at such a belated stage that of committal proceedings? The above question was replied in the affirmative. It was observed in Ramsewak and others v. State of M.P., 1979 Crl.L.J. 1485, ......." The words and language of Section 438 (1) and (3) are so very clear and unambiguous so as to lead to the only irresistible conclusion that, whenever any person apprehends that he is likely to be arrested in a non-bailable offence, he may apply either to the High Court or Court of Session for grant of anticipatory bail, either before his actual arrest or during the course of committal proceedings if (he) apprehends that he is likely to be committed under custody by the Magistrate while committing the case to the Court of Session. It is the apprehension of any person who has reasons to believe that he may be arrested on an accusation of having committed a non-bailable offence, which has to be given due consideration and weight. If his apprehensions continue even at the stage of committal Court proceedings there is nothing in the section which debars him from applying for an anticipatory bail in case of his apprehended commitment under custody. If it were not so, the provision would be rendered nugatory and the very object and purpose of the legislature to save the person from undergoing the rigours of jail even for few days, specially when it is yet to be seen whether prosecution is false or not would be frustrated."

(22) The above view which we are taking also finds support from the observations of the Andhra Pradesh High Court (Full Bench) in Smt.Sheik Khasim Bi v. The State, ..." For all the aforesaid reasons we hold that the filing of a charge-sheet by the police and issuing of a warrant by the Magistrate do not put an end to the power to grant bail under S. 438(1), Cr.P.C. and on the other hand we are of the view that the High Court or the Court of Session has power to grant anticipatory bail under S. 438(1) to a person after the criminal Court has taken cognizance of the case and has issued process viz., the warrant of arrest of that accused person."

(23) The above view was reiterated by a Full Bench of the Madhya Pradesh High Court as reported in Nirbhay Singh and Another v. State of M.P. 1996(1) Crimes 238 (H.C.), "Section 438 speaks of a person having reason to believe that he may be arrested on an `accusation'. There may be an accusation even before a case is registered by police. After the registration of the case, filing of the charge-sheet or filing of the complaint or taking cognizance or issuance of warrant, the accusation will not cease to be an accusation. At the later stage, there may be stronger accusation or more evidence. Nevertheless, the accusation survives or continues Section 438 speaks of apprehension and belief that he may be`arrested'. There is no limitation in the language employed by the legislature indicating that the arrest contemplated is an arrest by the police of their own accord or that arrest by the police on a warrant issued by the Court will not attract Section 438. The language used is clear and unambiguous, namely, apprehension of "arrest on an accusation." Considering the legislative purpose underlying the provision and the clarity of the language used in the section we do not find any justification to import anything extraneous into the interpretation so as to restrict the scope or vitality of the provision. It is not as if circumstances justifying an application under section 438 would disappear once a Magistrate takes cognizance of the offence or even after he passes an order committing the case to the Sessions Court."

(24) The learned Public Prosecutor on the other hand has relied upon the observations of a Single Judge of Guwahati High Court as reported in Sarat Kumar Phukan v.Charan Deka & Anr., 1984 Crl.L.J. 733. We have very carefully examined the facts of the said case. According to the facts of the said case a non bailable warrant was issued against the petitioner Sarat Kumar Phukan. He in response thereto surrendered before the Court with an application for cancellation of warrant of arrest. His application for cancellation of warrant was rejected. Hence the learned Judge, in view of the above, held that an application for anticipatory bail was not maintainable. Thus the ratio of the said case is not applicable to the facts and circumstances of the present case.

(25) In the above circumstances, we hold the applications to be maintainable. The Reference is answered accordingly.