On 3rd June, the Delhi High Court in a bench consisting of Justice Anu Malhotra, in the case of Abdul Samad v. National Investigation Agency, held that the provisions of Section 306 (4)(b) of the Cr.P.C., 1973 cannot be taken as an absolute prohibition or fetter on the inherent power of the High Court under Section 482 of the Cr.P.C. in appropriate cases to release the approver from detention. It further held that the aspect as to whether such exercise or jurisdiction in terms of Section 482 of the Cr.P.C., 1973 is warranted even for the prayer made by the applicant seeking grant of interim bail during the prevailing pandemic which prevailed even at the time of institution of the application, would have to be considered on the basis of the facts and circumstances of each case.
Facts of the case:
A Criminal Miscellaneous case was filed by the petitioner seeking for the setting aside of an impugned order dated 17.7.2019 of the learned Special Judge of the Patiala House Courts in New Delhi. The grant of bail to the applicant was also sought in the said case. Vide the order impugned in the petition dated 17.7.2019, the joint application moved for release/discharge in relation to the applicant accused/approver Abdul Samad and Mahfooz Alam were taken up and in as much as the counsel for the applicant herein i.e., the approver, Abdul Samad vide an endorsement made on the application withdrew the application, the said application seeking the release/discharge from custody in respect of the applicant/approver Abdul Samad was dismissed as withdrawn. The applicant has now sought the grant of interim bail during pendency of the petition in NIA Case for such period as the Court may deem fit.
Submissions on behalf of the Applicant:
The following submissions have been submitted by the Applicant:
- It had been submitted that through this application by the petitioner/applicant, he sought his release on interim bail on account of the COVID-19 pandemic prevalent in the country which stood as a threat to his life and liberty.
- It was further pointed out that although he had submitted his witness list as well as required documents with the FSL but the trial had not even started and is likely to take a substantial period of time to start due to the pandemic.
- It was also submitted through the application, that on the present date he was a pardoned person as there was no case pending against him and that he was in custody only by reason of the bar under Section 306 (4)(b) of the Cr.P.C.
- The applicant submits that use of the word ‘shall’ under Section 306(4)(b) of the Cr.P.C., 1973, in its ordinary import is ‘obligatory’ but there are many situations where the Courts have construed the word ‘shall’ to mean ‘may’ and therefore the relief sought by him can be granted by the court.
- The applicant further contended that though his release on bail is expressly barred under Section 306(4)(b) of the Cr.P.C.,1973, the Court under Section 482 Cr.P.C. may pass any orders to meet the ends of justice.
- The applicant also undertook to make himself available for any further investigation and to abide by the conditions put forth by the Court in the event of grant of bail and also stated his willingness to cooperate with the prosecution when necessary.
Submissions on behalf of the Respondent:
The respondent in its reply has submitted the following:
- The learned Additional Sessions Judge of Patiala House Courts, observed to the effect that separate statements of both the accused i.e. Abdul Samad and Mehfooz Alam had been recorded to the effect that they have admitted their guilt with regard to the offences alleged in this case.
- While citing the case of Aamir Abbas Dev V. State Through NIA, the NIA submitted that this Court had already held that the bar under Section 306(4)(b) of the Cr.P.C., 1973 is mandatory and absolute in nature.
- The NIA has further submitted that the applicant was not granted pardon under Section 307 of the Cr.P.C. after commitment of the case.
- The NIA had also submitted that the statement of the applicant herein as a prosecution witness is yet to be recorded by the Trial Court and if released from custody he may retract from his statement under Section 164 Cr.P.C. 1973 as an approver.
- Lastly, the NIA had also argued on the ground that the delay in trial is itself not a ground for grant of any bail to the accused/approver which has essentially to prevail.
Judgement and observation of court:
The Hon’ble Bench of Delhi High Court made the following observation:
In the circumstances of the instant case and the nature of allegations leveled against the applicant, thus it was not considered appropriate in view of the Guidelines of the Hon’ble High Powered Committee dated 18.5.2020 as reiterated and modified thereafter, to exercise the powers under Section 482 of the Cr.P.C., 1973 to grant any interim bail to the applicant.
The application was thus declined directing the matter to be placed before the Hon’ble Cheif Justice to be placed before the Hon’ble Roster Bench.
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