Supreme Court of India
SUNDEEP KUMAR BAFNAversusSTATE OF MAHARASHTRA & ANR.
- Citation
- 2014 INSC 218
- Decided
- 27 March 2014
- Disposal
- Appeal(s) allowed
- Bench
- K S RADHAKRISHNAN
Holding
A High Court or Court of Session may entertain and decide a bail application under s.439 CrPC once the accused surrenders and is in the court's custody, and the term "custody" includes such surrender.
Summary
Sundeep Kumar Bafna, convicted of offences punishable with death or life imprisonment, applied to the Bombay High Court for surrender and regular bail under s.439 CrPC after his anticipatory bail was denied. The High Court dismissed the bail plea, holding that only a magistrate could entertain it and directing the appellant to appear before a magistrate. The Supreme Court held that the High Court (and the Court of Session) have unfettered power under s.439 to grant bail once the accused surrenders and is in the court's custody, and that the term "custody" includes surrender to the court. The Court also clarified that the precedent Niranjan Singh is not per incuriam and must be followed. Consequently, the single judge’s order was set aside and the bail application must be heard, with the appellant protected from arrest for two weeks or until final disposal. The appeal was allowed.
Issues considered
- The jurisdiction of the High Court and Court of Session to entertain bail applications under s.439 CrPC when the case is already committed to the Court of Session.
- Whether surrender to the court constitutes "custody" for the purpose of s.439.
- Whether the High Court erred in directing the appellant to appear before a magistrate for bail.
- The applicability and status of the Niranjan Singh precedent and whether it was per incuriam.
- The extent of superior courts' powers to grant bail for non‑bailable offences punishable with death or life imprisonment.
Legislation cited
- Code of Criminal Procedure, 1973s. 167, s. 190, s. 193, s. 204, s. 205, s. 206, s. 207, s. 208, s. 209, s. 436, s. 437, s. 438, s. 439, s. 482
- Constitution of Indias. Article 21
Subjects
bailSection 439 CrPCcustodyhigh court jurisdictioncourt of sessionper incuriamanticipatory bailpersonal libertyArticle 21
Judgment
[2014] 4 S.C.R. 486
A SUNDEEP KUMAR BAFNA
v.
STATE OF MAHARASHTRA & ANR.
(Criminal Appeal No. 689 of 2014)
MARCH 27, 2014
B
[K.S.RADHAKRISHNAN AND VIKRAMAJIT SEN, JJ.]
CODE OF CRIMINAL PROCEDURE, 1973:
c s. 439 - Bail - Case triable by Court of Session - Power
of Court of Session and High Court to grant bail till committal
of case to Court of Session - Held: There is no provision in
Cr. P. C. or elsewhere, curtailing the power of either of superior
courts to entertain and decide pleas for bail - A substantial
0 period may inevitably intervene between a Magistrate taking
cognizance of an offence triable by Court of Session and its
committal to such court - During this interregnum, s. 439 can
be invoked for purpose of pleading for bail - Since severe
restrictions have been placed on power of Magistrate to grant
bail to a person accused of an offence punishable by death
E or imprisonment for life, a superior court such as Court of
Session, should not be incapacitated from considering a bail
application especially keeping in perspective that its powers
are comparatively unfettered uls 439 - In the instant case,
offence had already been committed to Court of Session -
F Applicant prayed for surrender to High Court and for grant of
bail - Single Judge erred in law in holding that he was devoid
of jurisdiction so far as application presented to him by
appellant was concerned - Once prayer for surrender is
accepted, appellant would come into custody of court within
G contemplation of s. 439 - Impugned order is, accordingly, set
aside - Single Judge shall consider appellant's plea for
surrendering to court and grant of bail - Constitution of India,
1950 - Art. 21.
H 486
SUNDEEP KUMAR BAFNA v. STATE OF 487
MAHARASHTRA
CRIMINAL LAW:
A
Expressions, 'arrest', 'custody' and 'detention' - Explained
- Held: The terms 'custody', 'detention' or 'arrest' have not
been defined in CrPC - However, an analysis of case law
indicates that these are sequentially cognate concepts- B
'Custody' and 'arrest' are not synonyms even though in every
arrest there is custody but not vice versa.
ADMINISTRATION OF JUSTICE:
Role of Public Prosecutor and hearing to complainant! C
informant/ aggrieved party - Held: The role of Public
Prosecutor is to uphold the law and put forth a sound
prosecution - Presence of a private lawyer would inexorably
undermine fairness and impartiality which must be hallmark,
attribute and distinction of every proper prosecution - No D
vested right is granted to a complainant or informant or
aggrieved party to directly conduct a prosecution - Constant
or even frequent interference in prosecution should not be
encouraged as it will have a deleterious impact on its
impartiality - However, where Magistrate or Sessions Judge E
is of the opinion that prosecution is likely to fail, prudence
would prompt that complainant or informant or aggrieved
party be given an informal hearing.
PRECEDENT:
F
Expression, 'per incuriam' - Explained - Held: It is
necessary to give a salutary clarion caution to all courts,
including High Courts, to be extremely careful and
circumspect in concluding a judgment of Supreme Court to
be per incuriam - An earlier judgment cannot be seen as G
per incuriam a later judgment as the latter if numerically
stronger only then it would overrule the former- In the instant
case, in the impugned order, single Judge of High Court
followed incorrect and misleading editorial note in the cited
law journal without apprising himself of the context in which H
488 SUPREME COURT REPORTS [2014] 4 S.C.R.
A Rashmi Rekha was wrongly reported to hold Niranjan Singh
per incuriam - Rashmi Rekha dealt with anticipatory bail ul
s 438, Cr. P. C. and only tangentially with ss. 437 and 439,
Cr. P. C. - In the factual matrix of the instant case, Niranjan
Singh is the precedent of relevance and not Gurbaksh Singh
B Sibbia nor any other decision where the scope and sweep of
anticipatory bail was at the fulcrum of the conundrum - Law
reporting.
WORDS AND PHRASES:
CI Expressions, 'custodey', 'detention' and' arrest' -
Connotation of.
The Supreme Court, while dismissing the appellant's
petition for special leave to appeal against the order of
D the High Court rejecting his application for anticipatory
bail in a case triable by Court of Session, granted him
protection from arrest for four weeks so as to enable him
to apply for regular bail. Accordingly, he filed an
application u/s 439 Cr. P.C. before the High Court. The
single Judge of the High Court declining the prayer
E observed that it was the Magistrate whose jurisdiction
had necessarily to be invoked and not of the High Court
or even of the Sessions Judge. He further observed that
the appellant was required to be arrested or otherwise he
was to surrender before the court which could send him
F to remand either to the police custody or to the Magisterial
custody and this could only be done u/s 167, Cr. P. C. by
the Magistrate, as such an order could not be passed at
the High Court level.
G Allowing the appeal, the Court
HELD:
Provisions in Cr.P.C. to grant regular bail:
H 1.1. Chapter XXXlll of the Code of Criminal
SUNDEEP KUMAR BAFNA v. STATE OF 489
MAHARASHTRA
Procedure, 1973(Cr.PC), which comprises ss.436 to 450, A
deals with bail. For the purpose of the instant case,
ss.437 and 438 are relevant. Section 437, inter alia,
provides that if 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 B
police station or if such person appears or is brought
before a Court other than the High Court or Court of
Session, he may be released on bail in certain
circumstances. There is no provision in the Code or
elsewhere, curtailing the power of the Court of Session c
or the High Court to entertain and decide pleas for bail.
Further, no provision categorically prohibits the
production of an accused before either of these courts.
The universal right of personal liberty emblazened by Art.
21 of the Constitution of India, being fundamental to the 0
very existence of not only to a citizen of India but to every
person, cannot be trifled with merely on a presumptive
plane. In view of the amendments carried out by
Parliament, ss. 437 to 439, Cr. P. C. predicate on the well
established principles of interpretation of statutes that E
what is not plainly evident from their reading, was never
intended to be incorporated into law. Whilst s. 437
contemplates that a person has to be accused or suspect
of a non-bailable offence and consequently arrested or
detained without warrant, s. 439 empowers the Court of
Session or High Court to grant bail if such a person is in F
custody. The difference of language manifests the
sublime differentiation in the two provisions and,
therefore, there is no justification in giving the word
'c_ustody' the same or closely similar meaning and
content as arrest or detention. [para 5 and 8] [499-G-H; G
500-A-B; 504-C-E; 505-F-H; 506-A-C]
1.2. Furthermore, while s. 437 severally curtails the
power of the Magistrate to grant bail in context of the
commission of non-bailable offences punishable with H
490 SUPREME COURT REPORTS [2014] 4 S.C.R.
A death or imprisonment for life, the two higher courts have
only the procedural requirement of giving notice of the
bail application to the Public Prosecutor, which
requirement is also ignorable if circumstances so
demand. The regimes regulating the powers of the
B Magistrate, on the one hand, and the two superior courts,
on the other, are decidedly and intentionally not identical,
but vitally and drastically dissimilar. Indeed, the only
complicity that can be contemplated is the conundrum of
'Committal of cases to the Court of Session' because of
c a possible hiatus created by the CrPC. [para 8] (506-C-E]
P. S. R. Sadhanantham vs Arunachalam 1980' (2) SCR
=
873 (1980) 3 SCC 141, Gurcharan Singh vs State 1978 (2)
=
SCR 358 (1978) 1 SCC 118, State of Haryana vs Bhajan
=
Lal 1990 (3) Suppl. SCR 259 1992 (Supp) 1 SCC 335 -
D referred to.
Meaning of 'custody':
1.3. The terms 'custody', 'detention' or 'arrest' have
E not been defined in the CrPC. However, an analysis of the
case law indicates that these are sequentially cognate
concepts. On the occurrence of a crime, the police is
likely to carry out the investigative interrogation of a
person, in the course of which the liberty of that
F individual is not impaired, suspects are then preferred by
the police to undergo custodial interrogation during
which their liberty is impeded and encroached upon. If
grave suspicion against a suspect emerges, he may be
detained in which event his liberty is seriously impaired.
Where the investigative agency is of the opinion that the
G detainee or person in custody is guilty of the commission
of a crime, he is charged of it and thereupon arrested. It
has been held by this Court that the terms 'custody' and
'arrest' are not synonyms even though in every arrest
there is a deprivation of liberty and custody but not vice
H versa. A person is in custody no sooner he surrenders
SUNDEEP KUMAR BAFNA v. STATE OF 491
MAHARASHTRA
before the police or before the appropriate Court. [para A
9 and 12] [506-F; 509-F-H; 510-A, 511-C]
Directorate of Enforcement vs Deepak Mahajan 1994
(1) SCR 445 = (1994) 3 SCC 440; Niranjan Singh vs
Prabhakar Rajaram Kharote 1980 (3) SCR 15 = (1980) 2
8
SCC 559; Nirmal Jeet Kaur vs State of MP. 2004 (3 ) Suppl.
SCR 1006 = (2004) 7 SCC 558; Sunita Devi vs State of Bihar
2004 (6) Suppl. SCR 707 = (2005) 1 SCC 608; and Adri
Dharan Das vs State of West Bengal 2005 (2) SCR 188 =
(2005) 4 SCC 303; State of Haryana vs Dinesh Kumar 2008 C
(1) SCR 281 = (2008) 3 sec 222 - relied on.
Roshan Beevi vs Joint Secretary 1984(15) ELT 289
(Mad) - stood approved.
Miranda vs Arizona 384 US 436 (1966), Minnesota vs 0
Murphy 465 US 420 (1984), R. vs Whitfield 1969
Careswel/Ont 138, R. vs Suberu [2009] S.C.J.No.33
Berkemer vs McCarty 468 U.S. 420 (1984), referred to.
The Oxford Dictionary (online); The Cambridge
Dictionary (online); Longman Dictionary (online); E
Chambers Dictionary (online); Chambers'
Thesaurus; The Collins Cobuild English Dictionary
for Advance Learners; The Shorter Oxford English
Dictionary; The Corpus Juris Secundum; Black's
Law Dictionary, (9th ed. 2009); Halsbury's Laws of F
England (4th Edition), Vol. II, paragraph 99 - referred
to.
Cognizance. committal and bail:
1.4. Chapter XVI of the Code makes it amply clear that G
a substantial period may inevitably intervene between a
Magistrate taking cognizance of an offence triable by
Court of Session and its committal to such court. In this
interregnum, the accused would be entitled to seek
H
492 SUPREME COURT REPORTS (2014] 4 S.C.R.
A before a court his enlargement on bail. Since severe
restrictions have been placed on the powers of a
Magistrate to grant bail, in the case of an offence
punishable by death or for imprisonment for life, an
accused should be in a position to move the courts
B meaningfully empowered to grant him succour, There is
no provision in the CrPC which prohibits an accused
from moving the Court of Session for such a relief except,
theoretically, s.193 which only prohibits it from taking
cognizance of an offence as a court of original
c jurisdiction, but this does not prohibit the Court of
Session from adjudicating upon a plea of bait Therefore,
till the committal of case to the Court of Session, s. 439
can be invoked for the purpose of pleading for bail. [para
21] [520-G-H; 521-C, D-E, F-H]
D 1.5. In the instant case, the offence has already been
committed to the Court of Session, albeit, the accused/
appellant could not have been brought before the
Magistrate. It is beyond cavil that a court takes
cognizance of an offence and not an offender. The
E appellant has filed an application praying, firstly, that he
be permitted to surrender to the High Court and
secondly, for his plea to be considered for grant of bail
by the High Court. There are no restrictions on the High
Court to entertain an application for bail provided always
F the accused is in custody, and this position obtains as
soon as the accused actually surrenders himself to the
court. Therefore, the High Court was not justified in
directing the appellant to appear before the Magistrate.
[para 22] (522-D-E; 523-A-B, CJ
G
Di/awar Singh vs Parvinder Singh, 2005 (5) Suppl.
SCR 83 = (2005) 12 SCC 709; Raghubans Dubey vs State
of Bihar, 1967 SCR 423 =AIR 1967 SC 1167 - referred to.
R vs Evans, (2012) 1 WLR 1192- referred to.
H
SUNDEEP KUMAR BAFNA v. STATE OF 493
MAHARASHTRA
Rule of precedent and per incuriam: A
2.1. The discipline demanded by a precedent is of
great importance for certainty of law, consistency of
rulings and comity of courts. A decision or judgment can
be per incuriam any provision in a statute, rule or 8
regulation, which was not brought to the notice of the
court. A decision or judgment can also be per incuriam if
it is not possible to reconcile its ratio with that of a
previously pronounced judgment of a co-equal or larger
Bench; or if the decision of a High Court is not in C
consonance with the views of this Court. [para 15] [513-
C-E]
Union of India vs Raghubir Singh 1989
(3) SCR 316 =1989 (2) SCC 754; Chandra Prakash v. State
of U.P. 2002 (2) SCR 913 =AIR 2002 SC 1652 - relied on. D
2.2. It is necessary to give a salutary clarion caution
to all courts, including High Courts, to be extremely
careful and circumspect in concluding a judgment of the
Supreme Court to be per incuriam. In the instant case, in E
the impugned order the single Judge of the High Court
appears to have blindly followed the incorrect and
certainly misleading editorial note in the cited law journal,
i.e., Supreme Court Cases, without apprising himself of
the context in which Rashmi Rekha has been reported
F
to hold Niranjan Singh per incuriam, and equally
importantly, to which previous judgment. An earlier
judgment cannot possibly be seen as per incuriam a later
judgment as the latter if numerically stronger only then it
would overrule the former. Rashmi Rekha dealt with
anticipatory bail u/s 438 and only tangentially with ss. 437 G
and 439 of the CrPC. In the factual matrix of the instant
case, Niranjan Singh is the precedent of relevance and
not Gurbaksh Singh Sibbia or any other decision where
the scope and sweep of anticipatory bail was at the
fulcrum of the conundrum. [para 16] [514-A-E] H
494 SUPREME COURT REPORTS (2014] 4 S.C.R.
A Niranjan Singh vs Prabhakar Rajaram Kharote (1980) 2
sec 559 - relied on.
Rashmi Rekha Thatoi vs State of Orissa, 2012 (5)
SCR 674 = (2012) 5 SCC 690; Gurbaksh Singh Sibbia vs
B State of Punjab 1980 (3) SCR 383 = (1980) 2 SCC 565; and
=
Bafchand Jain vs State of M.P. 1977 (2) SCR 52 (1976) 4
sec 572 - referred to.
Balkrishna Dhondu Rani vs Manik Motiram Jagtap 2005
(Supp.) Born C.R.(Cri) 270 - approved.
c
2.3. This Court is, therefore, of the opinion that the
single Judge erred in law in holding that he was devoid
of jurisdiction so far as the application presented to him
by the appellant was concerned. Once the prayer for
D surrender is accepted, the appellant would come into the
custody of the court within the contemplation of s. 439
Cr. P. C. The Court of Session as well as the High Court,
both of which exercise concurrent powers u/s. 439,
would then have to venture to the merits of the matter so
E as to decide whether the applicant/appellant had shown
sufficient reason or grounds for being enlarged on bail.
[para 26) [527-H; 528-A, B-C]
2.4. The impugned order is set aside. The single
Judge shall consider the appellant's plea for
F surrendering to the court and, accordingly, shall consider
his plea for bail. The appellant shall not be arrested for a
period of two weeks or till the final disposal of the said
application, whichever is later. [para 27) [528-D-E]
G Role of Public Prosecutor and private counsel in
prosecution:
3.1. The role of the Public Prosecutor is to uphold the
law and put forth a sound prosecution, and the presence
of a private lawyer would inexorably undermine the
H
SUNDEEP KUMAR BAFNA v. STATE OF 495
MAHARASHTRA
fairness and impartiality which must be the hallmark A
attribute and distinction of every proper prosecution. The
expected attitude of the Public Prosecutor while
conducting prosecution must be couched in fairness not
only to the court and to the investigating agencies but to
the accused as well. [para 24] [525-F-G; 526-C] B
Thakur Ram vs State of Bihar 1966 SCR 740 =AIR 1966
SC 911, Bhagwant Singh vs Commissioner of Police, 1985
(3) SCR 942 = (1985) 2 SCC 537, Shiv Kumar vs Hukam
Chand 1999 (2) Suppl. SCR 81 = (1999) 7 sec 467, J.K.
lntemational vs State 2001 (2) SCR 90 = (2001) 3 SCC 462, C
referred to.
3.2. No vested right is granted to a complainant or
informant or aggrieved party to directly conduct a
prosecution. So far as the Magistrate is concerned, D
comparative latitude is given to him but he must always
bear in mind that while the prosecution must remain
being robust and comprehensive and effective it should
not abandon the need to be free, fair and diligent. So far
as the Court of Session is concerned, it is the Public E
Prosecutor who must at all times remain in control of the
prosecution and a counsel of a private party can only
assist the Public Prosecutor in discharging its
responsibility. The complainant or informant or aggrieved
party may, however, be heard at a crucial and critical F
juncture of the trial so that his interests in the prosecution
are not prejudiced or jeopardized. Constant or even
frequent interference in the prosecution should not be
encouraged as it will have a deleterious impact on its
impartiality. If the Magistrate or Sessions Judge is of the G
opinion that the prosecution is likely to fail, prudence
would prompt that the complainant or informant or
aggrieved party be given an informal hearing. [para 25]
[527-B-E]
3.3. In the case in hand, the complainant or informant H
496 SUPREME COURT REPORTS [2014] 4 S.C.R.
A or aggrieved party was not possessed of any vested right
of being heard as it is manifestly evident that the court
has not formed any opinion adverse to the prosecution.
Whether the accused is to be granted bail is a matter
which can adequately be argued by the State Counsel.
B However, before this Court, the Senior Counsel for the
complainant has been granted a full hearing and the
Court has perused detailed written submissions made by
him. (para 25] [527-E-G]
Case Law Reference:
c
1980 (2) SCR 873 referred to Para 8
1978 (2) SCR 358 referred to Para 8
1990 (3) Suppl. SCR 259 referred to Para 8
D 1984(15) ELT 289 (Mad) stood approvedPara 10
1994 (1) SCR 445 relied on para 10
384 us 436 (1966) referred to Para 11
E 465 us 420 (1984) referred to Para 11
(2009] S.C.J.No.33 referred to Para 11
468 U.S. 420. (1984) referred to Para 11
1980 (3) SCR 15 relied on para 12
F
2004 (3) Suppl. SCR 1006 relied on para 12
2004 (6) Suppl. SCR 707 relied on para 12
2005 (2) SCR 188 relied on para 12
G 2008 (1) SCR 281 relied on para 12
1989 (3) SCR 316 relied on para 13
2002 (2) SCR 913 relied on para 14
2012 (5) SCR 674 referred to Para 16
H
SUNDEEP KUMAR BAFNA v. STATE OF 497
MAHARASHTRA
1977 (2) SCR 52 referred to Para 16 A
2005 (Supp.) Born approved Para 17
C.R.(Cri) 270
1980 (3) SCR 383 referred to Para 19
B
(2012) 1 WLR 1192 referred to para 22
2005 (5) Suppl. SCR83 referred to Para 22
1967 SCR 423 referred to para 22
1966 SCR 740 referred to Para 24 c
1985 (3) SCR 942 referred to Para 24
1999 (2) Suppl. SCR 81 referred to Para 24
2001 (2) SCR 90 referred to Para 24 D
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 689 of 2014.
From the Judgment & Order dated 06.02.2014 of the High
Court of Bombay in CRMBA No. 206 of 2014. E
Mukul Rohatgi, V.K. Bali, Saurabh Kirpal, Manali Singhal,
Aditya Soni, Christine Aey Kumar, Abhikalp Pratap Singh,
Santosh Sachin (for Nikhil Jain) for the Appellant.
T.A. Rahman, Satbir Pillania, Somvir Deswal, R.C. F
Gubrele, Aniruddha P. Mayee, Charudatta Mahindrakar for the
Respondents, Merchant (complainant-in-person).
The Judgment of the Court was delivered by
G
VIKRAMAJIT SEN, J. 1. Leave granted.
2. A neat legal nodus of ubiquitous manifestation and
gravity has arisen before us. It partakes the character of a
general principle of law with significance sans systems and
H
498 SUPREME COURT REPORTS [2014] 4 S.C.R.
A States. The futility of the Appellant's endeavours to secure
anticipatory bail having attained finality, he had once again
knocked at the portals of the High Court of Judicature at
Bombay, this time around for regular bail under Section 439
of the Code of Criminal Procedure (CrPC), which was declined
B with the observations that it is the Magistrate whose jurisdiction
has necessarily to be invoked and not of the High Court or even
the Sessions Judge. The legality of this conclusion is the
gravemen of the appeal before us. While declining to grant
anticipatory bail to the Appellant, this Court had extended to
c him transient insulation from arrest for a period of four weeks
to enable him to apply for regular bail, even in the face of the
rejection of his Special Leave Petition on 28.1.2014. This
course was courted by him, in the event again in vain, as the
bail application preferred by him under Section 439 CrPC has
been dismissed by the High Court in terms of the impugned
0
Order dated 6.2.2014. His supplications to the Bombay High
Court were twofold; that the High Court may permit the petitioner
to surrender to its jurisdiction and secondly, to enlarge him on
regular bail under Section 439 of the Code, on such terms and
E conditions as may be deemed fit and proper.
3. In the impugned Judgment, the learned Single Judge
has opined that when the Appellant's plea to surrender before
the Court is accepted and he is assumed to be in its custody,
the police would be deprived of getting his custody, which is
F not contemplated by law, and thus, the Appellant "is required
to be arrested or otherwise he has to surrender before the
Court which can send him to remand either to the police
custody or to the Magisterial custody and this can only be done
under Section 167 of CrPC by the Magistrate and that order
G cannot be passed at the High Court level.• Learned Senior
Counsel for the Appellant have fervidly assailed the legal
correctness of this opinion. It is contended that the Magistrate
is not empowered to grant bail to the Appellant, since he can
be punished with imprisonment for life, as statutorily stipulated
H in Section 437(1) CrPC; CR No.290 of 2013 stands registered
SUNDEEP KUMAR BAFNA v. STATE OF 499
MAHARASHTRA [VIKRAMAJIT SEN, J.)
with P.S. Mahim for offences punishable under Sections 288, A
304, 308, 336, 388 read with 34 and Section 120-8 of IPC.
Learned Senior Counsel further contends that since the matter
stands committed to Sessions, the Magistrate is denuded of
all powers in respect of the said matter, for the reason that law
envisages the commitment of a case and not of an individual B
accused.
•
4. While accepting the Preliminary Objection, the dialectic
articulated in the impugned order is that law postulates that a
person seeking regular bail must perforce languish in the
custody of the concerned Magistrate under Section 167 CrPC. C
The Petitioner had not responded to the notices/summons
issued by the concerned Magistrate leading to the issuance of
non-bailable warrants against him, and when even these steps
proved ineffectual in bringing him before the Court, measures
were set in motion for declaring him as a proclaimed offender D
under Section 82 CrPC. Since this was not the position
obtaining in the case, i.e. it was assumed by the High Court that
the Petitioner was not in custody, the application for bail under
Section 439 of CrPC was held to be not maintainable. This
conclusion was reached even though the petitioner was present E
in Court and had pleaded in writing that he be permitted to
surrender to the jurisdiction of the High Court. We shall abjure
from narrating in minute detail the factual matrix of the case as
it is not essential to do so for deciding the issues that have
arisen jn the present Appeal. F
Relevant Provisions in the CrPC Pertaining to Regular
Bail:
5. The pandect providing for bail is Chapter XXXlll
comprises Sections 436 to 450 of the CrPC, of which Sections G
437 and 439 are currently critical. Suffice it to state that Section
438 which deals with directions for grant of bail to persons
apprehending arrest does not mandate either the presence of
the applicant in Court or for his being in custody. Section 437,
inter alia, provides that if any person accused of, or suspected H
500 SUPREME COURT REPORTS [2014] 4 S.C.R.
A of the commission of any non-bailable offence is arrested or
detained without warrant by an officer in charge of a police
station or if such person appears or is brought before a Court
other than the High Court or Court of Session, he may be
released on bail in certain circumstances.
B
6. For facility of reference, Sections 437 and 439, both
covering the grant of regular bail in non-bailable offences are
reproduced hereunder. Section 438 has been ignored because
it is the composite provision dealing only with the grant of
anticipatory bail.
c
"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
D 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 grounds for believing that he has been
E
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
F 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 cognizable offence punishable with
imprisonment for three years or more but not less than
G seven years:
Provided that the Court may direct that a person
referred to 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:
H
SUNDEEP KUMAR BAFNA v. STATE OF 501
MAHARASHTRA [VIKRAMAJIT SEN, J.]
Provided further that the Court may also direct that A
a person referred to in clause (ii) be released on bail if it
is satisfied that it is just and proper so to do for any other
special reason:
Provided also that the mere fact that an accused B
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: C
Provided also that no person shall, if the offence
alleged to have been committed by him is punishable with
death, imprisonment for life, or imprisonment for seven
years or more, be released on bail by the Court under this
sub-section without giving an opportunity of hearing to the D
Public Prosecutor.
(2) If it appears to such officer or Court at any stage
of the investigation, inquiry or trial, as the case may be,
that there are not reasonable grounds for believing that the E
accused has committed a non-bailable offence, but that
there are sufficient grounds for further inquiry into his guilt,
the accused shall, subject to the provisions of section 446A
and pending such inquiry, be released on bail, or at the
discretion of such officer or Court, on the execution by him
F
of a bond without sureties for his appearance as
hereinafter provided.
(3) When a person accused or suspected of the
commission of an offence punishable with imprisonment
which may extend to seven years or more or of an offence G
under Chapter VI, Chapter XVI or Chapter XVII of the
Indian Penal Code (45 of 1860) or abetment of, or
conspiracy or attempt to commit, any such offence, is
released on bail under sub- section (1) - the Court shall
impose the conditions - H
502 SUPREME COURT REPORTS [2014) 4 S.C.R.
A (a) that such person shall attend in accordance with
the conditions of the bond executed under this Chapter,
(b) that such person shall not commit an offence
similar to the offence of which he is accused, or
suspected, of the commission of which he is suspected,
B
and
(c) that such 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
c him from disclosing such facts to the Court or to any police
officer or tamper with the evidence, and may also impose,
in the interests of justice, such other conditions as it
considers necessary.
D (4) An officer or a Court releasing any person on bail
under sub-section (1) or sub- section (2), shall record in
writing his or its reasons or special reasons for so doing.
(5) Any Court which has released a person on bail under
sub- section (1) or sub- section (2), may, if it considers it
E necessary so to do, direct that such person be arrested
and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a
person accused of any non-bailable offence is not
F concluded within a period of sixty days from the first date
fixed for taking evidence in the case, such person shall, if
he is in custody during the whole of the said period, be
released on bail to the satisfaction of the Magistrate, unless
for reasons to be recorded in writing, the Magistrate
G otherwise directs.
(7) If, at any time after the conclusion of the trial of a person
accused of a non-bailable offence and before judgment is
delivered, the Court is of opinion that there are reasonable
grounds for believing that the accused is not guilty of any
H such offence, it shall release the accused, if he is in
SUNDEEP KUMAR BAFNA v. STATE ui 503
MAHARASHTRA [VIKRAMAJIT SEN, J.]
custody, on the execution by him of a bond without sureties A
for his appearance to hear judgment delivered.
439. Special powers of High Court or Court of
Session regarding bail -
(1) A High Court or Court of Session may direct- B
(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 c
purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when
releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session D
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 E
recorded in writing, of the 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." F
7. Article 21 of the Constitution states that no person shall
be deprived of his life or personal liberty except according to
procedure established by law. We are immediately reminded
of three sentences from the Constitution Bench decision in G
P.S.R. Sadhanantham vs Arunachalam (1980) 3 SCC 141,
which we appreciate as poetry in prose - "Article 21, in its
sublime brevity, guards human liberty by insisting on the
prescription of procedure established by law, not fiat as sine
qua non for deprivation of personal freedom. And those H
504 SUPREME COURT REPORTS [2014] 4 S.C.R.
A procedures so established must be fair, not fanciful, nor formal
nor flimsy, as laid down in Maneka Gandhi case. So, it is
axiomatic that our Constitutional jurisprudence mandates the
State not to deprive a person of his personal liberty without
adherence to fair procedure laid down by law". Therefore, it
B seems to us that constriction or curtailment of personal liberty
cannot be justified by a conjectural dialectic. The only restriction
allowed as a general principle of law common to all legal
systems is the period of 24 hours post-arrest on the expiry of
which an accused must mandatorily be produced in a Court so
C that his remand or bail can be judicially considered.
8. Some poignant particulars of Section 437 CrPC may
be pinpointed. First, whilst Section 497(1) of the old Code
alluded to an accused being "brought before a Court", the
present provision postulates the accused being "brought before
D a Court other than the High Court or a Court of Session" in
respect of the commission of any non-bailable offence. As
observed in Gurcharan Singh vs State (1978) 1 SCC 118,
there is no provision in the CrPC dealing with the production
of an accused before the Court of Session or the High Court.
E But it must also be immediately noted that no provision
categorically prohibits the production of an accused before
either of these Courts. The Legislature could have easily
enunciated, by use of exclusionary or exclusive terminology, that
the superior Courts of Sessions and High Court are bereft of
F this jurisdiction or if they were so empowered under the Old
Code now stood denuded thereof. Our understanding is in
conformity with Gurcharan Singh, as perforce it must. The
scheme of the CrPC plainly provides that bail will not be
extended to a person accused of the commission of a non-
G bailable offence punishable with death or imprisonment for life,
unless it is apparent to such a Court that it is incredible or
beyond the realm of reasonable doubt that the accused is guilty.
The enquiry of the Magistrate placed in this position would be
akin to what is envisaged in State of Haryana vs Bhajan Lal,
H 1992 (Supp)1 SCC 335, that is, the alleged complicity of the
SUNDEEP KUMAR BAFNA v. STATE OF 505
MAHARASHTRA [VIKRAMAJIT SEN, J.]
accused should, on the factual matrix then presented or A
prevailing, lead to the overwhelming, incontrovertible and clear
conclusion of his innocence. The CrPC severely curtails the
powers of the Magistrate while leaving that of the Court of
Session and the High Court untouched and unfettered. It
appears to us that this is the only logical conclusion that can B
be arrived at on a conjoint consideration of Sections 437 and
439 of the CrPC. Obviously, in order to complete the picture
so far as concerns the powers and limitations thereto of the
Court of Session and the High Court, Section 439 would have
to be carefully considered. And when this is done, it will at once c
be evident that the CrPC has placed an embargo against
granting relief to an accused, (couched by us in the negative},
if he is not in custody. It seems to us that any persisting
ambivalence or doubt stands dispelled by the proviso to this
Section, which mandates only that the Public Prosecutor should 0
be put on notice. We have not found any provision in the CrPC
or elsewhere, nor have any been brought to our ken, curtailing
the power of either of the superior Courts to entertain and
decide pleas for bail. Furthermore, it is incongruent that in the
face of the Magistrate being virtually disempowered to grant
bail in the event of detention or arrest without warrant of any E
person accused of or suspected of the commission of any non-
bailable offence punishable by death or imprisonment for life,
no Court is enabled to extend him succour. Like the science
of physics, law also abhors the existence of a vacuum, as is
adequately adumbrated by the common law maxim, viz. 'where F
there is a right there is a remedy'. The universal right of
personal liberty emblazened by Article 21 of our Constitution,
being fundamental to the very existence of not only to a citizen
of India but to every person, cannot be trifled with merely on a
presumptive plane. We should also keep in perspective the fact G
that Parliament has carried out amendments to this pandect
comprising Sections 437 to 439, and, therefore, predicates on
the well established principles of interpretation of statutes that
what is not plainly evident from their reading, was never
intended to be incorporated into law. Some salient features of H
506 SUPREME COURT REPORTS [2014) 4 S.C.R.
A these provisions are that whilst Section 437 contemplates that
a person has to be accused or suspect of a non-bailable
offence and consequently arrested or detained without warrant,
Section 439 empowers the Session Court or High Court to
grant bail if such a person is in custody. The difference of
B language manifests the sublime differentiation in the two
provisions, and, therefore, there is no justification in giving the
word 'custody' the same or closely similar meaning and content
as arrest or detention. Furthermore, while Section 437 severally
curtails the power of the Magistrate to grant bail in context of
C the commission of non-bailable offences punishable with death
or imprisonment for life, the two higher Courts have only the
procedural requirement of giving notice of the Bail application
to the Public Prosecutor, which requirement is also ignorable
if circumstances so demand. The regimes regulating the
D powers of the Magistrate on the one hand and the two superior
Courts are decidedly and intentionally not identical, but vitally
and drastically dissimilar. Indeed, the only complicity that can
be contemplated is the conundrum of 'Committal of cases to
the Court of Session' because of a possible hiatus created by
E the CrPC.
Meaning of Custody:
9. Unfortunately, the terms 'custody', 'detention' or 'arrest'
have not been defined in the CrPC, and we must resort to few
F dictionaries to appreciate their contours in ordinary and legal
parlance. The Oxford Dictionary (online) defines custody as
imprisonment, detention, confinement, incarceration,
internment, captivity; remand, duress, and durance. The
Cambridge Dictionary (online) explains 'custody' as the state
G of being kept in prison, especially while waiting to go
to court for trial. Longman Dictionary (online) defines 'custody'
as 'when someone is kept in prison until they go to court,
because the police think they have committed a crime'.
Chambers Dictionary (online) clarifies that custody is 'the
H condition of being held by the police; arrest or imprisonment;
SUNDEEP KUMAR BAFNA v. STATE OF 507
MAHARASHTRA [VIKRAMAJIT SEN, J.]
to take someone into custody to arrest them'. Chambers' A
Thesaurus supplies several synonyms, such as detention,
confinement, imprisonment, captivity, arrest, formal
incarceration. The Collins Cobuild English Dictionary for
Advance Learners states in terms of that someone who is in
custody or has been taken into custody or has been arrested B
and is being kept in prison until they get tried in a court or if
someone is being held in a particular type of custody, they are
being kept in a place that is similar to a prison. The Shorter
Oxford English Dictionary postulates the presence of
confinement, imprisonment, durance and this feature is totally c
absent in the factual matrix before us. The Corpus Juris
Secundum under the topic of 'Escape & Related Offenses;
Rescue' adumbrates that 'Custody, within the meaning of
statutes defining the crime, consists of the detention or restraint
of a person against his or her will, or of the exercise of control
0
over another to confine the other person within certain physical
limits or a restriction of ability or freedom of movement.' This
is how 'Custody' is dealt with in Black's Law Dictionary, (9th
ed. 2009):-
"Custody- The care and control of a thing or person. E
The keeping, guarding? care, watch, inspection,
preservation or security of a thing, carrying with it the idea
of the thing being within the immediate personal care and
control of the person to whose custody it is subjected.
Immediate charge and control, and not the final, absolute F
control of ownership, implying responsibility for the
protection and preservation of the thing in custody. Also
the detainer of a man's person by virtue of lawful process
or authority.
G
The term is very elastic and may mean actual
imprisonment or physical detention or mere power, legal
or physical, of imprisoning or of taking manual possession.
Term "custody" within statute requiring that petitioner be "in
custody" to be entitled to federal habeas corpus relief does
H
508 SUPREME COURT REPORTS [2014] 4 S.C.R.
A not necessarily mean actual physical detention in jail or
prison but rather is synonymous with restraint of liberty. U.
S. ex rel. Wirtz v. Sheehan, D.C.Wis, 319 F.Supp. 146,
147. Accordingly, persons on probation or released on own
recognizance have been held to be "in custody" for
B purposes of habeas corpus proceedings."
10. A perusal of the dictionaries thus discloses that the
concept that is created is the controlling of a person's liberty
in the course of a criminal investigation, or curtailing in a
substantial or significant manner a person's freedom of action.
C Our attention has been drawn, in the course of Rejoinder
arguments to the judgment of the Full Bench of the High Court
of Madras in Roshan Beevi vs Joint Secretary 1984(15) ELT
289 (Mad), as also to the decision of the Court in Directorate
of Enforcement VS Deepak Mahajan (1994) 3 sec 440; in
D view of the composition of both the Benches, reference to the
former is otiose. Had we been called upon to peruse Deepak
Mahajan earlier, we may not have considered it necessary to
undertake a study of several Dictionaries, since it is a
convenient and comprehensive compendium on the meaning
E of arrest, detention and custody.
11. Courts in Australia, Canada, U.K. and U.S. have
predicated in great measure, their decisions on paragraph 99
from Vol. II Halsbury's Laws of England (4th Edition) which
F states that - "Arrest consists of the actual seizure or touching
of a person's body with a view to his detention. The mere
pronouncing of words of arrest is not an arrest, unless the
person sought to be arrested submits to the process and goes
with the arresting officer". The US Supreme Court has been
called upon to explicate the concept of custody on a number
G of occasions, where, coincidentally, the plea that was proffered
was the failure of the police to administer the Miranda caution,
i.e. of apprising the detainee of his Constitutional rights. In
Miranda vs Arizona 384 US 436 (1966), custodial interrogation
has been said to mean "questioning initiated by law
H
SUNDEEP KUMAR BAFNA v. STATE OF 509
MAHARASHTRA [VIKRAMAJIT SEN, J.]
enforcement officers after a person has been taken into custody A
or otherwise deprived of his freedom of action in any
significant way". In Minnesota vs Murphy 465 US 420 (1984),
it was• opined by the U.S. Supreme Court that since "no formal
arrest or restraint on freedom of movement of the degree
associated with formal arrest" had transpired, the Miranda B
doctrine had not become operative. In R. vs Whitfield 1969
CareswellOnt 138, the Supreme Court of Canada was called
upon to decide whether the police officer, who directed the
accused therein to stop the car and while seizing him by the
shirt said "you are under arrest:", could be said to have been c
"custodially arrested" when the accused managed to sped
away. The plurality of the Supreme Court declined to draw any
distinction between an arrest amounting to custody and a mere
or bare arrest and held that the accused was not arrested and
thus could not have been guilty of "escaping from lawful 0
custody". More recently, the Supreme Court of Canada has
clarified in R. vs Suberu [2009] S.C.J.No.33 that detention
transpired only upon the interaction having the consequence of
a significant deprivation of liberty. Further, in Berkemer vs
McCarty 468 U.S. 420 (1984), a roadside questioning of a
E
motorist detained pursuant to a routine traffic stop was not seen
as analogous to custodial interrogation requiring adherence to
Miranda rules.
12. It appears to us from the above analysis that custody,
detention and arrest are sequentially cognate concepts. On the F
occurrence of a crime, the police is likely to carry out the
investigative interrogation of a person, in the course of which
the liberty of that individual is not impaired, suspects are then
preferred by the police to undergo custodial interrogation during
which their liberty is impeded and encroached upon. If grave G
suspicion against a suspect emerges, he may be detained in
which event his liberty is seriously impaired. Where the
investigative agency is of the opinion that the detainee or person
in custody is guilty of the commission of a crime, he is charged
of it and thereupon arrested. In Roshan Beevi, the Full Bench H
510 SUPREME COURT REPORTS [2014] 4 S.C.R.
A of the High Court of Madras, speaking through S. Ratnavel
Pandian J, held that the terms 'custody' and 'arrest' are not
synonymous even though in every arrest there is a deprivation
of liberty is custody but not vice versa. This thesis is reiterated
by Pandian J in Deepak Mahajan by deriving support from
B Niranjan Singh vs Prabhakar Rajaram Kharote (1980) 2 SCC
559. The following passages from Deepak Mahajan are worthy
of extraction:-
"48. Thus the Code gives power of arrest not only to
a police officer and a Magistrate but also under certain
c circumstances or given situations to private persons.
Further, when an accused person appears before a
Magistrate or surrenders voluntarily, the Magistrate is
empowered to take that accused person into custody and
deal with him according to law. Needless to emphasize that
D the arrest of a person is a condition precedent for taking
him into judicial custody thereof. To put it differently, the
taking of the person into judicial custody is followed
after the arrest of the person concerned by the
Magistrate on appearance or surrender. It will be
E appropriate, at this stage, to note that in every arrest, there
is custody but not vice versa and that both the words
'custody' and 'arrest' are not synonymous terms. Though
'custody' may amount to an arrest in certain circumstances
but not under all circumstances. If these two terms are
F interpreted as synonymous, it is nothing but an ultra legalist
interpretation which if under all circumstances accepted
and adopted, would lead to a startling anomaly resulting
in serious consequences, vide Roshan Beevi.
49. While interpreting the expression 'in custody'
G
within the meaning of Section 439 CrPC, Krishna Iyer, J.
speaking for the Bench in Niranjan Singh v. Prabhakar
Rajaram Kharote observed that: (SCC p. 563, para 9)
"He can be in custody not merely when the police
H arrests him, produces him before a Magistrate and gets
SUNDEEP KUMAR BAFNA v. STATE OF 511
MAHARASHTRA [VIKRAMAJIT SEN, J.]
a remand to judicial or other custody. He can be stated A
to be in judicial custody when he surrenders before
the court and submits to its directions." (emphasis
added)
If the third sentence of para 48 is discordant to Niranjan B
Singh, the view of the coordinate Bench of earlier vintage must
prevail, and this discipline demands and constrains us also to
adhere to Niranjan Singh; ergo, we reiterate that a person is
in custody no sooner he surrenders before the police or before
the appropriate Court. This enunciation of the law is also
available in three decisions in which Arijit Pasayat J spoke for C
the 2-Judge Benches, namely (a) Nirrnal Jeet Kaur vs State
of M.P. (2004) 7 SCC 558 and (b) Sunita Devi vs State of
Bihar (2005) 1 SCC 608, and (c) Adri Dharan Das vs State
of West Bengal, (2005) 4 SCC 303, where the Co-equal
Bench has opined that since an accused has to be present in D
Court on the moving of a bail petition under Section 437, his
physical appearance before the Magistrate tantamounts to
surrender. The view of Niranjan Singh (see extracted para 49
infra) has been followed in State of Haryana vs Dinesh Kumar
(2008) 3 sec 222. We can only fervently hope that member E
of Bar will desist from citing several cases when all that is
required for their purposes is to draw attention to the precedent
that holds the field, which in the case in hand, we reiterate is
Niranjan Singh.
F
Rule of Precedent & Per lncuriam:
13. The Constitution Bench in Union of India vs Raghubir
Singh, 1989 (2) sec 754, has come to the conclusion
extracted below:
G
"27. What then should be the position in regard to
the effect of the law pronounced by a Division Bench in
relation to a case raising the same point subsequently
before a Division Bench of a smaller number of Judges?
There is no constitutional or ~tatutory prescription in the H
512 SUPREME COURT REPORTS [2014] 4 S.C.R.
A matter, and the point is governed entirely by the practice
in India of the courts sanctified by repeated affirmation
over a century of time. It cannot be doubted that in order
to promote consistency and certainty in the law laid down
by a superior Court, the ideal condition would be that the
B entire Court should sit in all cases to decide questions of
law, and for that reason the Supreme Court of the United
States does so. But having regard to the volume of work
demanding the attention of the Court, it has been found
necessary in India as a general rule of practice and
convenience that the Court should sit in Divisions, each
c
Division being constituted of Judges whose number may
be determined by the exigencies of judicial need, by the
nature of the case including any statutory mandate relative
thereto, and by such other considerations which the Chief
Justice, in whom such authority devolves by convention,
D
may find most appropriate. It is in order to guard against
the possibility of inconsistent decisions on points of law
by different Division Benches that the Rule has been
evolved, in order to promote consistency and certainty in
the development of the law and its contemporary status,
E that the statement of the law by a Division Bench is
considered binding on a Division Bench of the same or
lesser number of Judges. This principle has been followed
in India by several generations of Judges.... "
F 14. This ratio of Raghubir Singh was applied once again
by the Constitution Bench in Chandra Prakash v. State of U.P.:
AIR 2002 SC 1652. We think it instructive to extract the
paragraph 22 from Chandra Prakash in order to underscore
that there is a consistent and constant judicial opinion, spanning
G across decades, on this aspect of jurisprudence:
"Almost similar is the view expressed by a recent
judg111ent of a five-Judge Bench of this Court in Parija's
case (supra). In that case, a Bench of two learned Judges
doubted the correctness of the decision a Bench of three
H
SUNDEEP KUMAR BAFNA v. STATE OF 513
MAHARASHTRA [VIKRAMAJIT SEN, J.]
learned Judges, hence, directly referred the matter to a A
Bench of five learned Judges for reconsideration. In such
a situation, the five-Judge Bench held that judicial
discipline and propriety demanded that a Bench of two
learned Judges should follow the decision of a Bench of
three learned Judges. On this basis, the five-Judge Bench B
found fault with the reference made by the two-Judge
Bench based on the doctrine of binding precedent."
15. It cannot be over-emphasised that the discipline
demanded by a precedent or the disqualification or diminution C
of a decision on the application of the per incuriam rule is of
great importance, since without it, certainty of law, consistency
of rulings and comity of Courts would become a costly casualty.
A decision or judgment can be per incuriam any provision in
a statute, rule or regulation, which was not brought to the notice
of the Court. A decision or judgment can also be per incuriam D
if it is not possible to reconcile its ratio with that of a previously
pronounced judgment of a 80-equal or Larger Bench; or if the
decision of a High Court is not in consonance with the views
of this Court. It must immediately be clarified that the per
incuriam rule is strictly and correctly applicable to the ratio E
decidendi and not to obiter dicta. It is often encountered in High
Courts that two or more mutually irreconcilable decisions of the
Supreme Court are cited at the Bar. We think that the inviolable
recourse is to apply the earliest view as the succeeding ones
would fall in the category of per incuriam. F
Validation of Ratio in Niranjan Singh:
16. We must now discuss in detail the decision of a Two-
Judge Bench in Rashmi Rekha Thatoi vs State of Orissa,
(2012) 5 SCC 690, for the reason that in the impugned Order G
the Single Judge of the High Court has proclaimed, which word
we used intentionally, that Niranjan Singh is per incuriam. The
'chronology of cases' mentioned in Rashmi Rekha elucidates
that there is only one judgment anterior to Niranjan Singh,
namely, Balchand Jain vs State of M.P. (1976) 4 SCC 572, H
514 SUPREME COURT REPORTS [2014] 4 S.C.R.
A which along with the Constitution Bench decision in Gurbaksh
Singh Sibbia, intrinsically concerned itself only with anticipatory
bail. It is necessary to give a salutary clarion caution to all
Courts, including High Courts, to be extremely careful and
circumspect in concluding a judgment of the Supreme Court to
B be per incuriam. In the present case, in the impugned Order
the learned Single Judge appears to have blindly followed the
incorrect and certainly misleading editorial note in the Supreme
Court Cases without taking the trouble of conscientiously
apprising himself of the context in which Rashmi Rekha
c appears to hold Niranjan Singh per incuriam, and equally
importantly, to which previous judgment. An earlier judgment
cannot possibly be seen as per incuriam a later judgment as
the latter if numerically stronger only then it would overrule the
former. Rashmi Rekha dealt with anticipatory bail under
Section 438 and only tangentially with Sections 437 and 439
0
of the CrPC, and while deliberations and observations found
in this clutch of cases may not be circumscribed by the term
obiter dicta, it must concede to any judgment directly on point.
In the factual matrix before us, Niranjan Singh is the precedent
of relevance and hot Gurbaksh Singh Sibbia or any other
E decision where the scope and sweep of anticipatory bail was
at the fulcrum of the conundrum.
17. Recently, in Dinesh Kumar, this conundrum came to
be considered again. This Court adhered to the Niranjan
F Singh dicta (as it was bound to do), viz. that a person can be
stated to be in judicial custody when he surrendered before the
Court and submits to its directions. We further regretfully
observe that the impugned Judgment is repugnant to the
analysis carried out by two coordinate Benches of the High
G Court of Bombay itself, which were duly cited on behalf of the
Appellant. The first one is reported as Balkrishna Dhondu
Rani vs Manik Motiram Jagtap 2005 (Supp.) Born C.R.(Cri)
270 which applied Niranjan Singh; the second is by a different
Single Bench, which correctly applied the first. In the common
H law system, the purpose of precedents is to impart predictability
SUNDEEP KUMAR BAFNA v. STATE OF 515
MAHARASHTRA [VIKRAMAJIT SEN, J.]
to law, regrettably the judicial indiscipline displayed in the A
impugned Judgment, defeats it. If the learned Single Judge who
had authored the impugned Judgment irrepressibly held
divergent opinion and found it unpalatable, all that he could
have done was to draft a reference to the Hon'ble Chief Justice
for the purpose of constituting a larger Bench; whether or not B
to accede to this request remains within the discretion of the
Chief Justice. However, in the case in hand, this avenue could
also not have been traversed since Niranjan Singh binds not
only Co-equal Benches of the Supreme Court but certainly every
Bench of any High Court of India. Far from being per incuriam, c
Niranjan Singh has metamorphosed into the structure of stare
decisis, owing to it having endured over two score years of
consideration, leading to the position that even Larger Benches
of this Court should hesitate to remodel its ratio.
18. It will also be germane to briefly cogitate on the D
fasciculous captioned "Section 438 of the Code of Civil
Procedure, as amended by the Code of Criminal Procedure
(Amendment) Act, 2005 of the 203rd Report of the Law
Commission. Although, the Law Commission was principally
focused on the parameters of anticipatory bail, it had reflected E
on Niranjan Singh, and, thereafter, observed in paragraph
6.3.23 that "where a person appears before the Court in
compliance with any Court's order and surrenders himself to
the Court's directions or control, he may be granted regular bail,
since he is already under restraint. The provisions relating to F
the anticipatory bail may not be attracted in such a case". An
amendment was proposed to the provisions vide CrPC
(Amendment) Act, 2005 making the presence of the applicant
seeking anticipatory bail obligatory at the time of final hearing
of the application for enlargement on bail. The said amendment G
has not been notified yet and kept in abeyance because of two
reasons. Firstly, the amendment led to widespread agitation by
the lawyers fraternity since it would virtually enable the police
to immediately arrest an accused in the event the Court
declined to enlarge the accused on bail. Secondly, in the H
516 SUPREME COURT REPORTS [2014] 4 S.C.R.
A perception of the Law Commission, it would defeat the very
purpose of the anticipatory bail. The conclusion of the Law
Commission, in almost identical words to those extracted
above are that: "when the applicant appears in the Court in
compliance of the Court's order and is subjected to the Court's
B directions, he may be viewed as in Court's custody and this
may render the relief of anticipatory bail infructuous".
Accordingly, the Law Commission has recommended omission
of sub-section (1-B) of Section 438 CrPC.
19. The Appellant had relied on Niranjan Singh vs
C Prabhakar Rajaram Kharote (1980) 2 SCC 559, before the
High Court as well as before us. A perusal of the impugned
Order discloses that the learned Single Judge was of the
mistaken opinion that Niranjan Singh was per incuriam,
possibly because of an editorial error in the reporting of the later
D judgment in Rashmi Rekha Thatoi vs State of Orissa (2012)
5 sec 690. In the latter decision the curial assault was to the
refusal to grant of anticipatory bail under Section 438(1) CrPC,
yet nevertheless enabling him to surrender before the Sub
Divisional Magistrate and thereupon to be released on bail. In
E the appeal in hand this issue is not in focus; the kernel of the
conundrum before us is the meaning to be ascribed to the
concept of custody in Section 439 CrPC, and a careful scrutiny
of Rashmi Rekha will disclose that it does not even purport
to or tangentially intend to declare Niranjan Singh as per
F incuriam. Any remaining doubt would be dispelled on a perusal
of Ranjit Singh vs State of M.P, where our esteemed Brother
Dipak Misra has clarified that Rashmi Rekha concerned itself
only with anticipatory bail. The impugned Order had therefore
to remain in complete consonance with Niranjan Singh. It
G needs to be clarified that paragraph 14 of Sunita Devi vs State
of Bihar (2005) 1 sec 608, extracts verbatim paragraph 7 of
Niranjan Singh, without mentioning so. The annals of the
litigation in Niranjan Singh are that pursuant to a private
complaint under Section 202 CrPC, the concerned Magistrate
H issued non-bailable warrants in respect of the accused, and
SUNDEEP KUMAR BAFNA v. STATE OF 517
MAHARASHTRA [VIKRAMAJIT SEN, J.]
subsequently while refusing bail to them had neglected to A
contemporaneously cause them to be taken into custody. In that
interregnum or hiatus, the accused moved the Sessions Court
which granted them bail albeit on certain terms which the High
Court did not interfere therewith. This Court, speaking through
Krishna Iyer J elucidated the law in these paragraphs: B
"6. Here the respondents were accused of offences
but were not in custody, argues the petitioner so no bail,
since this basic condition of being in jail is not fulfilled. This
submission has been rightly rejected by the courts below. C
We agree that, in one view, an outlaw cannot ask for the
benefit of law and he who flees justice cannot claim justice.
But here the position is different. The accused were not
absconding but had appeared and surrendered before the
Sessions Judge. Judicial jurisdiction arises only when
persons are already in custody and seek the process of D
the court to be enlarged. We agree that no person accused
of an offence can move the court for bail uader Section
439 CrPC unless he is in custody.
7. When is a person in custody, within the meaning E
of Section 439 CrPC? When he is in duress either
because he is held by the investigating agency or other
police or allied authority or is under the control of the court
having been remanded by judicial order, or having offered
himself to the court's jurisdiction and submitted to its F
orders by physical presence. No lexical dexterity nor
precedential profusion is needed to come to the realistic
conclusion that he who is under the control of the court or
is in the physical hold of an officer with coercive power is
in custody for the purpose of Section 439. This word is of G
elastic semantics but its core meaning is that the law has
taken control of the person. The equivocatory quibblings
and hide-and-seek niceties sometimes heard in court that
the police have taken a man into informal custody but not
arrested him, have detained him for interrogation but not H
518 SUPREME COURT REPORTS [2014] 4 S.C.R.
A taken him into formal custody and other like terminological
dubieties are unfair evasions of the straightforwardnes.~ of
the law. We need not dilate on this shady facet here
because we are satisfied that the accused did physically
submit before the Sessions Judge and the jurisdiction to
B grant bail thus arose.
8. Custody, in the context of Section 439, (we are
not, be it noted, dealing with anticipatory bail under Section
438) is physical control or at least physical presence of the
accused in court coupled with submission to the
c jurisdiction and orders of the court.
9. He can be in custody not merely when the police
arrests him, produces him before a Magistrate and gets
a remand to judicial or other custody. He can be stated
D to be in judicial custody when he surrenders before
the court and submits to its directions. In the present
case, the police officers applied for bail before a
Magistrate who refused bail and still the accused, without
surrendering before the Magistrate, obtained an order for
E stay to move the Sessions Court. This direction of the
Magistrate was wholly irregular and maybe, enabled the
accused persons to circumvent the principle of Section 439
CrPC. We might have taken a serious view of such a
course, indifferent to mandatory provisions, by the
F subordinate magistracy but for the fact that in the
present case the accused made up for it by
surrender before the Sessions Court. Thus, the
Sessions Court acquired jurisdiction to consider the bail
application. It could have refused bail and remanded the
accused to custody, but, in the circumstances and for the
G
reasons mentioned by it, exercised its jurisdiction in favour
of grant of bail. The High Court added to the conditions
subject to which bail was to be granted and mentioned that
the accused had submitted to the custody of the court. We,
therefore, do not proceed to upset the order on this ground.
H
SUNDEEP KUMAR BAFNA v. STATE OF 519
MAHARASHTRA [VIKRAMAJIT SEN, J.]
Had the circumstances been different we would have A
demolished the order for bail. We may frankly state that
had we been left to ourselves we might not have granted
bail but, sitting under Article 136, do not feel that we should
interfere with a discretion exercised by the two courts
below." B
(Emphasis added by us)
It should not need belabouring that High Courts must be most
careful and circumspect in concluding that a decision of a
superior Court is per incuriam. And here, palpably without C
taking the trouble of referring to and reading the precedents
alluded to, casually accepting to be correct a careless and
incorrect editorial note, the Single Judge has done exactly so.
All the cases considered in Rashmi Rekha including the
decision of the Constitution Bench in Gurbaksh Singh Sibbia D
vs State of Punjab (1980) 2 sec 565, concentrated on the
contours and circumference of anticipatory bail, i.e. Section
438. We may reiterate that the Appellant's prayer for
anticipatory bail had already been declined by this Court, which
is why he had no alternative but to apply for regular bail. Before E
we move on we shall reproduce the following part of paragraph
19 of Sibbia as it has topicality:-
"19 ... Besides, if and when the occasion arises, it may
be possible for the prosecution to claim the benefit of F
Section 27 of the Evidence Act in regard to a discovery
of facts made in pursuance of information supplied by a
person released on bail by invoking the principles stated
by this Court in State of U.P. v. Deoman Upadhyaya to the
effect that when a person not in custody approaches a
police officer investigating an offence and offers to give G
information leading to the discovery of a fact, having a
bearing on the charge which may be made against him,
he may appropriately be deemed so have surrendered
himself to the police. The broad foundation of this rule is
stated to be that Section 46 of the Code of Criminal H
520 SUPREME COURT REPORTS [2014) 4 S.C.R.
A Procedure does not contemplate any formality before a
person can be said to be taken in custody: submission to
the custody by word or action by a person is sufficient. For
similar reasons, we are unable to agree that anticipatory
bail should be refused if a legitimate case for the remand
B of the offender to the police custody under Section 167(2)
of the Code is made out by the investigating agency."
20. In this analysis, the opinion in the impugned Judgment
incorrectly concludes that the High Court is bereft or devoid of
power to jurisdiction upon a petition which firstly pleads
C surrender and, thereafter, prays for bail. The High Court could
have perfunctorily taken the Appellant into its custody and then
proceeded with the perusal of the prayer for bail; in the event
of its coming to the conclusion that sufficient grounds had not
been disclosed for enlargement on bail, necessary orders for
D judicial or police custody could have been ordained. A Judge
is expected to perform his onerous calling impervious of any
public pressure that may be brought to bear on him.
The Conundrum of Cognizance, Committal & Bail
E
21. We have already noted in para 8 the creation by the
CrPC of a hiatus between the cognizance of an offence by the
Magistrate and the committal by him of that offence to the Court
of Session. Section 190 contemplates the cognizance of an
offence by a Magistrate in any of the following four
F circumstances: (i) upon receiving a complaint of facts; or (ii)
upon a police report of such facts; or (iii) upon information
received from any person other than a police officer, or (iv) upon
the Magistrate's own knowledge. Thereafter, Section 193
proscribes the Court of Session from taking cognizance of any
G offence, as a Court of original jurisdiction, unless the case has
been committed to it by a Magistrate; its Appellate jurisdiction
· is left untouched. Chapter XVI makes it amply clear that a
. substantial period may inevitably intervene between a
Magistrate taking cognizance of an offence triable by Sessions
H and its committal to the Court of Session. Section 204 casts
SUNDEEP KUMAR BAFNA v. STATE OF 521
MAHARASHTRA [VIKRAMAJIT SEN, J.]
the duty on a Magistrate to issue process; Section 205 A
empowers him to dispense with personal attendance of
accused; Section 206 permits Special summons in cases of
petty offence; Sections 207 and 208 obligate the Magistrate
to furnish to the accused, free of cost, copies of sundry
documents mentioned therein; and, thereafter, under Section 8
209 to commit the case to Sessions. What is to happen to the
accused in this interregnum; can his liberty be jeopardized! The
only permissible restriction to personal freedom, as a universal
legal norm, is the arrest or detention of an accused for a
reasonable period of 24 hours. Thereafter, the accused would c
be entitled to seek before a Court his enlargement on bail. In
connection with serious offences, Section 167 CrPC
contemplates that an accused may be incarcerated, either in
police or judicial custody, for a maximum of 90 days if the
Charge Sheet has not been filed. An accused can and very 0
often does remain bereft of his personal liberty for as long as
three months and law must enable him to seek enlargement on
bail in this period. Since severe restrictions have been placed
on the powers of a Magistrate to grant bail, in the case of an
offence punishable by death or for imprisonment for life, an
accused should be in a position to move the Courts
E
meaningfully empowered to grant him succour. It is inevitable
that the personal freedom of an individual would be curtailed
even before he can invoke the appellate jurisdiction of Sessions
Judge. The Constitution therefore requires that a pragmatic,
positive and facilitative interpretation be given to the CrPC F
especially with regard to the exercise of its original jurisdiction
by the Sessions Court. We are unable to locate any provision
in the CrPC which prohibits an accused from moving the Court
of Session for such a relief except, theoretically, Section 193
which also only prohibits it from taking cognizance of an offence G
as a Court of original jurisdiction. This embargo does not
prohibit the Court of Session from adjudicating upon a plea for
bail. It appears to us that till the committal of case to the Court
of Session, Section 439 can be invoked for the purpose of
pleading for bail. If administrative difficulties are encountered, H
522 SUPREME COURT REPORTS [2014] 4 S.C.R.
A such as, where there are several Additional Session Judges,
they can be overcome by enabling the accused to move the
Sessions Judge, or by further empowering the Additional
Sessions Judge hearing other Bail Applications whether post
committal or as the Appellate Court, to also entertain Bail
B Applications at the pre-committal stage. Since the Magistrate
is completely barred from granting bail to a person accused
even of an offence punishable by death or imprisonment for life,
a superior Court such as Court of Session, should not be
incapacitated from considering a bail application especially
c keeping in perspective that its powers are comparatively
unfettered under Section 439 of the CrPC.
22. In the case in hand, we need not dwell further on this
question since the Appellant has filed an application praying,
firstly, that he be permitted to surrender to the High Court and
D secondly, for his plea to be considered for grant of bail by the
High Court. We say this because there are no provisions in the
CrPC contemplating the committal of a case to the High Court,
thereby logically leaving its powers untrammelled. There are no
restrictions on the High Court to entertain an application for bail
E provided always the accused is in custody, and this position
obtains as soon as the accused actually surrenders himself to
the Court. Reliance on R vs Evans, (2012) 1 WLR 1192, by
learned Senior Counsel for the respondents before us is
misplaced, since on its careful reading, the facts are totally
F distinguishable inasmuch as the accused in that case had so
engineered events as not to be available in persona in the
Court at the time of the consideration of his application for
surrender. The Court of Appeal observed that they "do not agree
that reporting to the usher amounts to surrender". The Court in
G fact supported the view that surrender may also be
accomplished by the commencement of any hearing before the
Judge, however brief, where the accused person is formally
identified and plainly would overtly have subjected himself to
the control of the Court. Incontrovertibly, at the material time the
H Appellant was corporeally present in the Bombay High Court
SUNDEEP KUMAR BAFNA v. STATE OF 523
MAHARASHTRA [VIKRAMAJIT SEN, J.]
making Evans applicable to the case of the Appellant rather A
than the case of the respondent. A further singularity of the
present case is that the offence has already been committed
to Sessions, albeit, the accused/Appellant could not have been
brought before the Magistrate. It is beyond cavil "that a Court
takes cognizance of an offence and not an offender" as B
observed in Dilawar Singh vs Parvinder Singh, (2005) 12 SCC
709, in which Raghubans Dubey vs State of Bihar, AIR 1967
SC 1167, was applied. Therefore, the High Court was not
justified in directing the Appellant to appear before the
Magistrate. c
23. On behalf of the State, the submission is that the
prosecution should be afforded a free and fair opportunity of
subjecting the accused to custody for interrogation as provided
under Section 167 CrPC. This power rests with the Magistrate
and not with the High Court, which is the Court of Revision and D
Appeal; therefore, the High Court under Section 482 CrPC can
only correct or rectify an order passed without jurisdiction by a
subordinate Court. Learned State counsel submits that the High
Court in exercise of powers under Section 482 can convert the
nature of custody from police custody to judicial custody and E
vice versa, but cannot pass an Order of first remanding to
~ustody. Therefore, the only avenue open to the accused is to
appear before the Magistrate who is empowered under Section
167 CrPC. Thereupon, the Magistrate can order for police
custody or judicial custody or enlarge him on bail. On behalf of F
the State, it is contended that if accused persons are permitted
to surrender to the High Court, it is capable of having, if not a
disastrous, certainly a deleterious effect on investigations and
shall open up the flood gates for accused persons to make
strategies by keeping themselves away from the investigating G
agencies for months on end. The argument continues that in
this manner absconding accused in several sensitive cases,
affecting the security of the nation or the economy of the country,
would take advantage of such an interpretation of law and get
away from the clutches of the investigating officer. We are not H
524 SUPREME COURT REPORTS [2014] 4 S.C.R. ·
A impressed by the arguments articulated by learned Senior
Counsel for the Complainant or informant because it is
axiomatic that any infraction or inroad to "the freedom of an
individual is possible only by some clear unequivocal and
unambiguous procedure known to law.
8
Role of Public Prosecutor and Private Counsel in
Prosecution
24. The concern of the Three Judge Bench in Thakur Ram
vs State of Bihar AIR 1966 SC 911, principally was whether
C the case before them should have been committed to
Sessions, as also whether this plea could be countenanced at
the stage when only the Judgment was awaited and any such
interference would effectuate subjecting the accused to face
trial virtually de novo. The observations that where "a case has
D proceeded on a police report a private party has really no locus
standi, since the aggrieved party is the State", are strictly senso
obiter dicta but it did presage the view that was to be taken by
this Court later. In Bhagwant Singh vs Commissioner of Police,
(1985) 2 SCC 537, another Three Judge Bench formulated the
E question which required its answer that "whether in a case where
First Information Report is lodged and after completion of
investigation initiated on the basis of the First Information
Report, the police submits a report that no offence appears to
have been committed, the Magistrate can accept the report and
F drop the proceeding without issuing notice to the first informant
or to the injured or in case the incident has resulted in death,
to the relatives of the deceased". Sections 154, 156, 157, 173
and 190 of the CrPC were duly considered threadbare, before
opining thus:-
G "4 ..... when, on a consideration of the report made by the
officer-in-charge of a police station under sub-section {2)(i)
of Section 173, the Magistrate is not inclined to take
cognizance of the offence and issue process, the informant
must be given an opportunity of being heard so that he can
H make his submissions to persuade the Magistrate to take
SUNDEEP KUMAR BAFNA v. STATE OF 525
MAHARASHTRA [VIKRAMAJIT SEN, J.]
coghizance of the offence and issue process ..... A
"5. The position may however, be a little different when we
consider the question whether the injured person or a
relative of the deceased, who is not the informant, is 8
entitled to notice when the report comes up for
consideration by the Magistrate. We cannot spell out either
from the provisions of the Code of Criminal Procedure,
1973 or from the principles of natural justice, any
obligation on the Magistrate to issue notice to the injured C
person or to a relative of the deceased for providing such
person an opportunity to be heard at the time of
consideration of the report, unless such person is the
informant who has lodged the First Information Report. But
even if such person is not entitled to notice from the D
Magistrate, he can appear before the Magistrate and
make his submissions when the report is considered by
the Magistrate for the purpose of deciding what action he
should take on the report ..... ."
E
Thereafter, in Shiv Kumar vs Hukam Chand (1999) 7 SCC
467, the question that was posed before another Three Judge
Bench was whether an aggrieved has a right to engage its own
counsel to conduct the prosecution despite the presence of the
Public Prosecutor. This Court duly noted that the role of the
Public Prosecutor was upholding the law and putting together F
a sound prosecution; and that the presence of a private lawyer
would inexorably undermine the fairness and impartiality which
must be the hallmark, attribute and distinction of every proper
prosecution. In that case the advocate appointed by the
aggrieved party ventured to conduct the cross-examination of G
the witness which was allowed by the Trial Court but was
reversed in Revision by the High Court, and the High Court
permitted only the submission of Written Argument after the
closure of evidence. Upholding the view of the High Court, this
H
526 SUPREME COURT REPORTS [2014] 4 S.C.R.
A Court went on to observe that before the Magistrate any per.son
(except a police officer below the rank of Inspector) could
conduct the prosecution, but that this laxity is impermissible in
Sessions by virtue of Section 225 of the CrPC, which pointedly
states that the prosecution shall be conducted by a Public
B Prosecutor. We, respectfully, agree with the observations that
- "A Public Prosecutor is not expected to show a thirst to reach
the case in the conviction of the accused somehow or the other
irrespective of the true facts involved in the case. The expected
attitude of the Public Prosecutor while conducting prosecution
c must be couched in fairness not only to the Court and to the
investigating agencies but to the accused as well ......... A
private counsel, if allowed a free hand to conduct prosecution
would focus on bringing the case to conviction even if it is not
a fit case to be so convicted. That is the reason why Parliament
applied a bridle on him and subjected his role strictly to the
0
instructions given by the Public Prosecutor." In J.K. International
vs State (2001) 3 SCC 462, the Appellant had filed a complaint
alleging offences under Sections 420, 406 and 120-B IPC in
respect of which a Charge Sheet was duly filed. The Appellant
E preferred a petition in the High Court for quashing the FIR in
which proceeding the complainant's request for being heard
was rejected by the High Court. Thakur Ram and Bhagwant
Singh were cited and analysed. It was reiterated by this Court
that it is the Public Prosecutor who is in the management of
the prosecution the Court should look askance at frequent
F interjection and interference by a private person. However, if
the proceedings are likely to be quashed, then the complainant
should be heard at that stage, rather than compelling him to
assail the quashment by taking recourse to an appeal. Sections
225, 301 and 302 were also adverted to and, thereafter, it was
G opined that a private person is not altogether eclipsed from the
scenario, as he remains a person who will be prejudiced by
an order culminating in the dismissal of the prosecution. The
Three Judge Bench observed that upon the Magistrate
becoming prescient that a prosecution is likely to end in its
H dismissal, it would be salutary tb allow a hearing to the
SUNDEEP KUMAR BAFNA v. STATE OF 527
MAHARASHTRA [VIKRAMAJIT SEN, J.]
Complainant at the earliest; and, in the case of a Sessions trial, A
by permitting the filing of Written Arguments.
25. The upshot of this analysis is that no vested right is
· granted to a complainant or informant or aggrieved party to
directly conduct a prosecution. So far as the Magistrate is 8
concerned, comparative latitude is given to him but he must
always bear in mind that while the prosecution must remain
being robust and comprehensive and effective it should not
abandon the need to be free, fair and diligent. So far as the
Sessions Court is concerned, it is the Public Prosecutor who C
must at all times remain in control of the prosecution and a
counsel of a private party can only assist the Public Prosecutor
in discharging its responsibility. The complainant or informant
or aggrieved party may, however, be heard at a crucial and
critical juncture of the Trial so that his interests in the prosecution
are not prejudiced or jeopardized. It seems to us that constant D
or even frequent interference in the prosecution should not be
encouraged as it will have a deleterious impact on its
impartiality. If the Magistrate or Sessions Judge harbours the
opinion that the prosecution is likely to fail, prudence would
prompt that the complainant or informant or aggrieved party be E
given an informal hearing. Reverting to the case in hand, we
are of the opinion that the complainant or informant or
aggrieved party who is himself an accomplished criminal lawyer
and who has been represented before us by the erudite Senior
Counsel, was not possessed of any vested right of being heard F
as it is manifestly evident that the Court has not formed any
opinion adverse to the prosecution. Whether the Accused is to
be granted bail is a matter which can adequately be argued
by the State Counsel. We have, however, granted a full hearing
to Mr. Gopal Subramanium, Senior Advocate and have G
perused detailed Written Submissions since we are alive to
impact that our opinion would have on a multitude of criminal
trials.
26. In conclusion, therefore, we are of the opinion that the
learned Single Judge erred in law in holding that he was devoid H
528 SUPREME COURT REPORTS (2014] 4 S.C.R.
A of jurisdiction so far as the application presented to him by the
Appellant before us was concerned. Conceptually, he could
have declined to accept the prayer to surrender to the Courts'
custody, although, we are presently not aware of any reason
for this option to be exercised. Once the prayer for surrender
B is accepted, the Appellant before us would come into the
custody of the Court within the contemplation of Section 439
CrPC. The Sessions Court as well as the High Court, both of
which exercised concurrent powers under Section 439, would
then have to venture to the merits of the matter so as to decide
C whether the applicant/Appellant had shown sufficient reason or
grounds for being enlarged on bail.
27. The impugned Order is, accordingly, set aside. The
Learned Single Judge shall consider the Appellant's plea for
surrendering to the Court and dependent on that decision, the
D Learned Single Judge-shall, thereafter, consider the Appellant's
plea for his being granted bail. The Appellant shall not be
.. arrested for a period of two weeks or till the final disposal of
the said application, whichever is later. We expect that the
learned Single Judge shall remain impervious to any pressure
E that may be brought to bear upon him either from the public or
from the media as this is the fundamental and onerous duty cast
on every Judge.
28. The appeal is allowed in the above terms.
R.P. Appeal allowed.
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