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Bail application is under Section 437. CrPC explained

Allahabad High Court

Amarawati And Anr. (Smt.) vs State Of U.P. on 15 October, 2004

Author: I Murtaza
Bench: M Katju, S Singh, S Ambwani, I Murtaza, K Mishra, P Srivastava, R Singh
JUDGMENT Imtiyaz Murtaza, J.

1. This Full Bench is constituted to consider the following questions :

1. Whether the arrest of an accused is a must if cognizable offence is disclosed in the FIR or in a criminal complaint;

2. Whether the High Court can direct the Subordinate Courts to decide the Bail Application on the same day it is filed; and

3. Whether the case Dr. Vinod Narain v. State of U.P., Writ Petition No. 3643 of 1992, reported in 1995 (32) ACC 375, has been correctly decided by the five Judges Full Bench of this Court.

2. In the case of Dr. Vinod Narain (Writ Petition No. 3643 of 1992), it was held : “For the reasons recorded separately this Full Bench unanimously holds that in exercise of power 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 the bail proceedings cannot be fixed. Consequently, the decision rendered in Dr. Hidayat Hussain Khan v. State of U.P., 1992 Cr LJ 3534, is overruled and the decision rendered in Writ Petition No. 919 of 1992, Noor Mohd. v. State of U.P. and others, is upheld.”

3. In the same judgment Hon’ble Palok Basu, J. observed (in Paragraph 183) :

“Once disclosure of cognizable offence is made, arrest of the accused or suspect is a “must” for there is no other known method by which he may be brought before the Court for trial. The words “if necessary” in Section 157 may at best make available a discretion to an Investigating Officer in a given case to defer arresting an accused or suspect if there is reasonable doubt about his identity. It is not possible to subscribe to the view that the word ‘arrest’ is made discretionary or that any other connotation may be extendable than what is noted in the preceding lines.”

4. We have heard Shri V.P. Srivastava, Shri S.P.S. Raghav, Shri Satish Trivedi, Shri Viresh Mishra, Shri D.S. Mishra and Pt. P.N. Misra, learned Advocates at length and the learned Government Advocate for the State and have perused the judgment of the Full Bench passed in Writ Petition No. 3643 of 1992. Dr. Vinod Narain v. State of U.P.

5. First we shall consider the question, whether the arrest of the accused is a must if a cognizable offence is disclosed in the FIR or in the complaint.

6. Article 21 of the Constitution of India guarantees to every man, be he a citizen or a foreigner, that he shall not be deprived of his life or personal liberty except in accordance with the procedure established by law. Article 21 states :

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

7. It may be mentioned that in AX. Gopalan v. Union of India, AIR 1950 SC 27, it was held that to deprive a person of life or liberty all that was required was that the provisions of the IPC and CrPC or some statute are to be followed, but it was not necessary that those provisions must be reasonable, fair and just. In other words, it was held in Gopalan’s case (supra) that Articles 21 and 19 arc mutually exclusive, and hence the reasonability test in Article 19 of the Constitution is not to be applied when testing a law on the anvil of Article 21. Thus Article 21 was construed in Gopalan’s case only as a guarantee against executive action unsupported by statutory law.

8. However, subsequently in Maneka Gandhi v. Union of India. AIR 1978 SC 597 a Seven Judges Constitution Bench decision of the Supreme Court overruled the earlier decision in AX. Gopalan’s case (supra) and held that the procedure to deprive a person of life or liberty must be fair, reasonable and just. Thus the expression “procedure established by law” in Article 21 has been judicially construed as meaning a procedure which is reasonable, fair and just. Subsequent to Maneka Gandhi’s case in a series of decisions the Supreme Court has considerably expanded the scope of Article 21 of the Constitution, and has held that the word ‘life’ in Article 21 means a life of dignity as a civilized human being and not just animal survival [vide Francis Coralie Mullin v. Administrator, 1981 (1) SCC 608; Unnikrishnan v. State of A.P., JT 1993(1) SC 474; Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 and AIR 1980 SC 1579, etc.].

9. All the provisions in the CrPC have hence to be construed in accordance with the new interpretation of Article 21 of the Constitution as laid down in Maneka Gandhi’s case (supra).

10. It may be mentioned that according to the theory of Jurisprudence of the eminent jurist Kelsen (The Pure Theory of Law), in the legal system of ever)1 country there is a hierarchy of laws and if there is conflict between a higher law and a lower law then the higher law will prevail (sec Kelscn’s The General Theory of Law and State). In our Constitution the hierarchy is as follows :

1. The Constitution of India.

2. Statutory Law, which may either be made by Parliament or by the State Legislature.

3. Delegated or subordinate legislation e.g. rules made under a statute, regulations made under a statute, etc.

4. Government Orders, Executive and Administrative Instructions, etc.

11. The IPC and CrPC arc in the second layer of this hierarchy of laws in our legal system, and hence if any provision of the IPC or CrPC seems to violate the provisions in the Constitution it will either be declared void or will be construed in such a manner as to be make it consistent and in conformity with the constitutional provisions.

12. When proceeding to discuss the relevant provisions in the CrPC we must keep the above considerations in mind.

13. There are various sections in Chapter” V of the Code of Criminal Procedure entitled “Arrest of Persons” of which Sections 41, 42, 43 and 44 empower different authorities to arrest a person in a given situation. Section 41 deals with the power of a police officer to arrest any person without an order from a Magistrate and without a warrant.

14. Section 41 of Code of Criminal Procedure reads as under :

“41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any persons.

(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or

(c) who has been proclaimed as an offender cither under this Code or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who being a released convict, commits a breach of any rule made under sub-section (5) of Section 365; or

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specified the person to be arrested and the offence or other cause for which the arrest is to be made and it ‘ appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Any officer-in-charge of a police station may, in like manner, arrest or clause to be arrested any person, belonging to one or more of the categories of persons specified in Section 109 or Section 110.

15. Section 2(c) of the Code of Criminal Procedure defines the cognizable offence:

“2(c) “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without Warrant.”

16. The definition of cognizable offence clearly indicates that police officer may “arrest without warrant” and not that he must arrest.

17. Section 157(1), CrPC provides “If, from information received or otherwise, an officer-in-charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary to take measures for the discovery and arrest of the offender. ”

18. In none of the sections the word ‘shall’ has been used. In Pramod Kumar v. Sadhna Ram, 1989 Cr LJ 1772, a Division Bench of this Court has interpreted the word ‘may’ and ‘shall’ and observed in Paragraph 22 of the judgment as under :

“In view of the intentional use of the word ‘may’ in such sub-section (1) of Section 437, CrPC and of the word ‘shall’ in three of its sub-sections, then again using the word ‘shall1 in Section 436 and the word ‘may’ in Section 439 we cannot but hold that the Legislature has consciously made distinction in choosing the respective verbs in the various . provisions. It has used the auxiliary verb ‘shall’ where it desired the provisions to be mandatory and has used ‘may’ where it wanted the martter to be left to judicial discretion.”

19. The word ‘may’ in Section 41 of Code of Criminal Procedure cannot, therefore, be interpreted as ‘must’ or ‘shall’.

20. In Joginder Kumar v. State of U.P. and others, 1994 Cr LJ 1981, the Supreme Court observed :

“No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bonafides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest.”

21. In view of the above discussion and the observations made by the Apex Court in the case of Joginder Kumar (supra), the observations made by Hon’ble Palok Basu, J. in the case of Dr. Vinod Narain (supra) in Paragraph 183 that once disclosure of cognizable offence is made, arrest of the accused or suspect is a “must” are incorrect and the said decision has not laid down the correct law.

22. The second question referred to this Bench is whether the High Court can direct the Subordinate Courts to decide the bail application on the same day it is filed.

23. Chapter XXXIII of the Code of Criminal Procedure deals with the provisions as to bail and bonds.

24. The provisions for granting bail by the Magistrate are provided in Section 437, CrPC which reads as under:

“437. When bail may be taken in case of non-bailable offence.-(1) When any person accused of, or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a 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, but-

(i) such person shall not be so released if there appear reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) 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 he had been previously convicted on two or more occasions of a nonbailable and cognizable offence :

Provided that the Court may direct that a person referred in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm :

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.”

25. The provisions for granting bail by the Sessions Judge is provided in Section 439, CrPC which reads as under:

“439. Special powers of High Court or Court of Session regarding bail.-{1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any persons on bail be set aside or modified :

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”

26. A perusal of the above-mentioned sections for bail indicate that whereas in Section 437, CrPC there is no provision for any notice of the application for bail to the Public Prosecutor, in Section 439, CrPC however it is specifically mentioned that before granting bail to a person notice of the application for bail to the Public Prosecutor is required, unless for reasons to be recorded in writing, the Court is of opinion, that it is not practicable to give such notice.

27. In Section 437, CrPC the provision for notice is not given because there are specific provisions under the Code of Criminal Procedure which provide that all the relevant material relating to the case is produced or available before the Magistrate. Thus Section 157, CrPC provides that an officer-in-charge of the police station shall forthwith send a report of the same to a Magistrate who is empowered to take cognizance of the offence. In Section 167, CrPC it is provided that “whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57 and there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of the police station or the police officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate”.

28. Section 173(5) provides that when the police report is in respect of a case to which Section 170 applies the police officer must forward to the Magistrate the documents mentioned therein.

29. Section 437, CrPC applied to relatively minor offences where the punishment provided is not life sentence or death. In our opinion any application for bail under Section 437, CrPC should ordinarily be decided by the Magistrate the same day, except in rare cases where reasons shall be recorded in writing for adjourning the hearing of the bail application. We think it necessary to lay down this guideline in respect of such applications under Section 437 in view of (i) there being no provision for giving notice to the Public Prosecutor, as is required for applications under Section 439(2) and Article 21 of the Constitution, which has been given a very wide interpretation in a series of decisions of the Supreme Court, referred to above.

30. There is no doubt that now-a-days often false and frivolous first information reports are lodged against even respectable persons of society, and if such respectable persons have to be arrested on the basis of such false and frivolous FIRs/complaints it will certainly result in incalculable harm to their reputation and self-respect.

31. In Joginder Kumar’s case (supra) the Supreme Court has observed “arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person”. In the Gita Lord Krishna said to Arjun :

laHkkforL; pkdhfrZ ej.knfrfjP;rs which means “for a self-respecting man, death is preferable to dishonour”. (See Gita 2: 34).

32. In our country unfortunately whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused. This practice in our opinion is illegal as it is against the decision of the Supreme Court in Joginder Kumar’s case, and it is also in violation of Article 21 of the Constitution as well as Section 157(1), CrPC gives a police officer discretion to arrest or not, but this discretion cannot be exercised arbitrarily, and it must be exercised in accordance with the principles laid down in Joginder Kumar’s case (supra). The view of Hon’ble Palok Basu, J. in this connection is hence clearly incorrect.

33. It may be mentioned that the provision for anticipatory bail has been deleted by an amendment in U.P. It is well known that in U.P. criminal trials often take five years or sometimes even more to complete, and hence the question arises is that if an accused is found innocent after this long interval who will restore these five years or so of life to him if he is not granted bail?

34. It may be mentioned that a person’s reputation and esteem in society is a valuable asset, just as in civil law it is an established principle that goodwill of a firm is an intangible asset. In practice, if a person applies for bail he has to surrender in Court, and normally the bail application is put up for hearing after a few days and in the meantime he has to go to jail. Even if he is subsequently granted bail or is acquitted, his reputation is irreparably tarnished in society. Often false and frivolous FIRs arc filed yet the innocent person has to go to jail, and this greatly damages his reputation in society. For instance, as observed by the Supreme Court in Karis Raj v. State of Punjab, 2000 Cr LJ 2993 (vide Para 5), a tendency has developed of roping in all relations of the in-laws of the deceased wife in matters of dowry death. All these factors must be kept in mind by the Court particularly after the promulgation of the Constitution, which has embodied the right to liberty as a valuable fundamental right in Article 21 of the Constitution of India.

35. We may now consider the provisions of Section 439, CrPC (as quoted above) which deal with the bail application before the High Court and Court of Sessions.

36. It may be noted that there is a very important difference between Sections 437 and 439 inasmuch as there is no requirement of giving notice to the Public Prosecutor in Section 437 but there is such a requirement in the proviso to Section 439(1). Obviously this difference was made by Parliament in its wisdom because it was felt that the cases before the Court of Sessions are more serious as compared to the cases before the Magistrate which may be petty ones.

37. What is important to note is that the proviso to Section 439(1) does not prescribe the period of the notice and leaves it to the discretion of the Judge. This may be contrasted to Section 407(5), CrPC which reads as follows :

“Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty four hours have elapsed between the giving of such notice and the hearing of the application.”

38. The fact that in the same statute in one provision the period of the notice has been prescribed, while in another provision it has not indicates that Parliament in its wisdom has left it to the discretion of the Court where such period has not been prescribed to regulate its proceedings and determine in its own discretion what reasonable period should there be between giving of the notice and hearing of the bail application under Section 439.

39. In Ramesh Chandra Kapil v. High Court of Judicature at Allahabad, 1984 UPCR 159, the Court referred to the Latin Maxim ‘CURSUS CURLAF LEX CURAE’ which means “every Court is the guardian of its own records and of its practice”.

40. There may be cases, for instance, where a totally false and frivolous FIR has been filed against a judicial or administrative officer or a reputed citizen merely because of enmity or to damage his reputation or to black-mail him. If the hearing of the bail application is adjourned even for a few days he will have to remain in jail and his reputation may be irreparably tarnished, even if subsequently he is granted bail. In our opinion the learned Judge hearing the bail application, in his discretion, may in such a case give a very short time for the hearing after notice is given to the Public Prosecutor, and he may, in his discretion hear the bail application under Section 439 on the same day when it is filed. After all, giving notice merely means giving copy of the bail application to the Public Prosecutor so that he may have an opportunity to be heard in reply and place the material facts before the Court. There may be cases where the learned Judge hearing the bail application under Section 439 may, if he chooses, give a very short time to the Public Prosecutor after the bail application is filed and notice is given, and do the hearing the same day only after a short time of giving of the notice. The learned Judge can always get the record from the Court of the learned Magistrate where the entire papers are already available. Also, sometimes it may not be practicable to give notice at all and for this purpose the hearing can be done after recording reasons for waiving the notice, as mentioned in the proviso of Section 439(1). On the other hand, there may be cases where the learned Judge may feel that in view of the seriousness of the offence or other facts a longer time should be given to the Public Prosecutor before hearing the bail application. In all such cases in our opinion the matter should be left to the discretion of the learned Judge hearing the bail application and a direction for deciding the bail on the same day should not ordinarily be given by this Court as that would be interfering in his discretion.

41. We again make it clear that the learned Sessions Judge in his discretion can hear and decide the bail application under Section 439 on the same day of its filing provided notice is given to the Public Prosecutor, or he may not choose to do so. This is entirely a matter in the discretion of the learned Sessions Judge. There may also be cases where the learned Sessions Judge on the material available before him may decide to grant interim bail as he may feel that while he has sufficient material for giving interim bail he requires further material for grant of final bail. In such cases also he can in his discretion, grant interim bail and he can hear the bail application finally after a few days. All these are matters which should ordinarily be left to his discretion.

42. As regards power to grant interim bail we agree with the view of the Hon’ble B.M. Lal, J in Dr. Vinod Narain’s case (supra) that such power is implicit in the power to grant bail, and we disagree with the view expressed by Hon’ble Palok Basu, J. in the aforesaid decision. The view we are taking would make the provisions for grant of bail in the CrPC in conformity with Article 21 of the Constitution, particularly since the provision for granting anticipatory bail has been deleted in U.P.

43. It may be mentioned that the Supreme Court in A.R. Antulay v. U.S. Nayak, (1992) 1 SCC 225 and Raj Deo Sharma v. State of Bihar, (1998) 7 SCC 507. has held that the right of speedy justice is a fundamental right as envisaged under Article 21 of the Constitution. The interpretation we arc giving above to the provisions in the CrPC arc hence in conformity with Article 21 of the Constitution as interpreted by the Supreme Court.

44. We may also examine Section 167, CrPC Section 167(2) of Code of Criminal Procedure provides :

“167. Procedure when investigation cannot be completed in twenty-four hours.-(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 forwarded to a Magistrate having such jurisdiction :

Provided that.

(a) the Magistrate may authorise the detention of the accused person otherwise than in the custody of the police beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so. but no Magistrate shall authorise the detention of the accused person in custody under this Paragraph for a total period exceeding-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(iii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and docs furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter;

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

Explanation I-For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in Paragraph (a) the accused shall be detained in custody so long as he does not furnish bail.

Explanation II-If any question arises whether an accused person was produced before the Magistrate as required under Paragraph (b) the production of the accused person may be proved by his signature on the order authorising detention.”

45. This section provides that if the investigation is not completed within the stipulated period of ninety days, or sixty days as the case may be, after the expiry of this period, the Magistrate shall be bound to release an accused on bail if he is prepared to and does furnish bail.

46. It further provides that every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter. The right to apply for bail under this provision expires as soon as the charge-sheet is filed. In case after the expiry of the stipulated period the applicant moves a bail application for his release and the said application is not decided the same day then the accused is deprived of his valuable right, and this, in our opinion, would violate Article 21 of the Constitution. In Section 167 there is no provision for giving any notice to the Public Prosecutor. In such a situation the Magistrate should decide the bail application on the same day it is filed. In the case of A.R. Antuley (supra) it has been held that the right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and retrial. This includes the expeditious disposal of the bail application also.

47. In view of the above we answer the questions referred to the Full Bench as follows :

(1) Even if cognizable offence is disclosed, in the FIR or complaint the arrest of the accused is not a must, rather the police officer should be guided by the decision of the Supreme Court in Joginder Kumar v. State of U.P., 1994 Cr LJ 1981. before deciding whether to make an arrest or not.

(2) The High Court should ordinarily not direct any Subordinate Court to decide the bail application the same day, as that would be interfering with the judicial discretion of the Court hearing the bail application. However, as stated above, when the bail application is under Section 437. CrPC ordinarily the Magistrate should himself decide the bail application the same day, and if he decides in a rare and exceptional case not to decide it on the same day, he must record his reasons in writing. As regards the application under Section 439, CrPC it is in the discretion of the learned Sessions Judge considering the facts and circumstances whether to decide the bail application the same day or not, and it is also in his discretion to grant interim bail the same day subject to the final decision on the bail application later.

(3) The decision in Dr. Vinod Narain v. State of UP. (supra) is incorrect and is substituted accordingly by this judgment.

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