Bombay High Court
Chandrakant Chandulal Bhansali vs Shrikant Shrikrishna Joshi And Anr. on 10 August, 1992
Equivalent citations: 1992(3)BOMCR658, (1992)94BOMLR689
JUDGMENT M.F. Saldanha, J.
1. Is an order granting anticipatory bail to be equated with a regular bail order passed by a Criminal Court and, consequently, would the principles applicable to the cancellation of bail apply equally to both types of orders? This courts has, in the recent past, been flooded with applications presented by the State for cancellation of anticipatory bail orders, all of which proceed on the common ground that the direct consequences of the passing of the order has either seriously impeded or totally frustrated the investigation and damaged it, at times irretrievably. The second common head of challenge which, to my mind, is almost complementary to the first is that the timing of the order was wrong. A subsidiary grievance, but one in respect of which much can be said, is that anticipatory bail orders are, more often than not, passed ex-parte, without affording the prosecuting authority an opportunity of being heard. Be that as it may, once an order for anticipatory bail has been made in favour of an accused, it has become customary to contend that the salutary principles governing the cancellation of a bail order would operating accused's favour and, therefore, that the order should not easily be disturbed. Precisely this controversy has arisen in the present proceeding before me. Having regard to the High degree of frequency with which these issues are debated before the courts, it would be essential to resolve the matter by defining the precise ambit and scope of the courts powers in matters relating to cancellation of anticipatory bail.
2. Section 438 of the Code of Criminal Procedure, 1973, (hereinafter referred to as "the Code") invests the High Court or the Court of Sessions with the powers to release a person who apprehends arrest, on bail. It is essential to bear in mind the purpose behind the introduction of this provision which was incorporated in the Code on the recommendation of the Law Commission. The Law Commission observed:
"The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days.... Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody remain in prison for some days and then apply for bail."
3. Instances abound where a skilled litigant planes to use the criminal machinery for purposes of humiliating, attacking or pressurising a person unfairly or, for that matter, seeking to use the custody process as an arena for vendetta. Taking cognizance of such situations, the Legislature has provided for relief to a person who is the victim of such schemes with the intention of preventing the damage and disgrace that could never be undone unless it is stopped in good time. In other words, anticipatory bail is the antidote for such situations of abuse, and these are to be distinguished from the normal run of criminal cases and litigation. It is true that anticipatory bail is also available to that small category of cases in which no useful purpose would be served by taking a person into custody, even for a short period of time. Certain class of offences relating to documents or relatively minor cases could be listed under this head where it would be reasonable to hold that the exercise of formally putting the accused behind bars and then releasing on bail could be dispensed with. That section 438 of the Code confers a special power and one which is of restrictive scope and, therefore, to be used sparingly, requires emphasis.
4. The Supreme Court in the case of Balchand Jain v. State of M.P., A.I.R. 1977 S.C. 366 has sounded a word of caution by observing that the power of anticipatory bail has to be exercised sparingly and in exceptional cases. Coupled with this, some courts have been invested with the courts under section 438 of the Code. The Punjab and Haryana High Court in the case of Gurubaksh Singh v. State of Punjab, A.I.R. 1978 P & H. 1, has observed that although the power appears to be unguided, it is, in fact, required to be exercised subject to limitations imposed by section 437 of the Code of the power of granting bail. In addition to the limitations incorporated under section 437 of the Code, the petitioner must make out a special case for getting anticipatory bail. The Supreme Court, in the case of Pokar Ram v. State of Rajasthan, 1985 Cri.L.J. 1175 (S.C.), observed that when power under section 438 of the Code is exercised without giving serious thought or on irrelevant considerations not germane to the determination of the application, the Court has deprecated the new common practice of indiscriminately resorting to the power of granting anticipatory bail without due evaluation of the material before the Court and has laid down a mandate as follows :
"Bail should not be granted without due application of mind to the facts of the case. An indirect use of the power to grant bail would be an abuse of the judicial process and would shake the confidence of the general public in the judiciary. See State v. Yoginder Kumar, 1985 Cri.L.J. 685 (Del.)."
Conversely, the Patna High Court laid down that a person should be granted anticipatory bail only when the Court is convinced that the applicant is such a person who would not absconder otherwise misuse his liberty. Apart from this, disapproving strongly of the new prevalent practice of rushing to Court with an anticipatory bail application on an averment that the applicant apprehends his arrest, the Kerala High Court reiterated the cardinal ingredient essential for an anticipatory bail application in the case of Thayyanbadi v. S.I. of Police, Panoor, 1985 Cr.L.J. 1111 (Kerala), when it held :
"Anticipatory bail cannot be granted in the absence of a specific accusation. Mere possibility of an accusation of some non-bailable offence does not justify the grant of anticipatory bail."
It is in the background of these principles that the present application falls for decision.
5. First a gist of the facts. The application for cancellation of anticipatory bail in this case, not surprisingly, is at the instance of the aggrieved citizen, namely, the complainant who had set the law in motion. This petitioner is a dealer in diamonds and it is his case that he had several dealings with the accused who is a well known jeweller and a dealer in diamonds. The stone in question, according to the complainant, was valued at about Rs. 1,25,000/-, but the peculiarity of it was that it had a certain flow in it. The accused suggested that if it were to be cleverly set in gold in such a manner that the flow were to be concealed, the diamond would still fetch a very good price. The stone was handed over to the accused who set it in gold and thereafter offered it for sale, but the complainant was not agreeable to an offer of Rs. 1,00,000/- from a customer. After sometime passed, the accused contended that the stone had been misplaced or stolen by somebody and started giving evasive replies and would not either return it or make good its value. The complainant, therefore, lodged a complaint under section 406 of the Indian Penal Code against the accused and the Police registered an offence. Before he could be arrested, the accused approached the Court of Session and the learned Sessions Judge passed speaking order granting anticipatory bail to the accused for a paltry sum of Rs. 10,000/-, that too on a personal bond. The record shows that the Police had objected to the grant of bail, principally, on the ground that in the preliminary investigation, the entrustment of the valuable property to the accused had been established; that, therefore, a prima facie case had been made out and the Police had pointed out that the accused had, in fact, taken up the plea that the stone had been misplaced and that he would make good the value thereof. In the application filed before the Court of Session, the entrustment was again admitted by the accused, but on this occasion the contention taken up was that the stone had been returned to the complainant. The learned Sessions Judge was misguided into holding that since the accused is a businessman of some standing that there was no possibility of his absconding, and on this weak and thoroughly irrelevant consideration passed an order for his release on anticipatory bail. The direct result of this was that the investigation could not proceed beyond that point and was virtually frustrated. The complainant, who is the real aggrieved part, has moved this Court for quashing of that order, principally, on the ground that in the circumstances and manner in which the accused was released on bail and predominantly at the time at which this was done that it was unjustified and, therefore, constituted virtual abuse of the process of Court and was liable to be interfered with.
6. Shri Mohite, learned Counsel appearing on behalf of the petitioner, made a strong grievance when he pointed out that in cases relating to loss of property, the paramount consideration before the investigating agency is the recovery of that property and that any order of a Court which would interfere in the process of investigation leading to such recovery at the earliest point of time cannot be passed in an application under section 438 of the Code. He contended that section 438 of the Code was never enacted for the purpose of inhibiting or interfering with the process of investigation, that the basic scheme of criminal jurisprudence proceeded on the footing that the law requires the arrest of persons against whom a prima facie case exists and that custodial interrogation is part of the essential process of investigation. He has also attached the order on the ground that both the timing and the grounds on which the bail had been granted are not only vulnerable but legally assailable.
7. I must, at this stage, dispose of the preliminary objection raised by Shri Rajendra Shirodkar learned Counsel appearing on behalf of the accused, who submitted that the complainant has no locus standi to move this Court because the State is the prosecuting authority and that if the State has not challenged the order of the Court of Session, the complainant is precluded from doing so. One needs to bear in mind that the present petition involves the inherent powers of this Court. The Supreme Court has in a long stream of decisions, notably the Asiad Workers case and the Judges' case, the letter one being S.P. Gupta and others v. President of India and others, , dealt with this question of locus standi and the law has now crystallized to the extent that the courts will not be technical with regard to this aspect, particularly when it is demonstrated that the petitioner is directly aggrieved by the order. It is true that the Court will shut out a busybody, but it is equally correct to state that a Court will not disqualify an aggrieved citizen who desires to rectify what has gone wrong in a proceeding with which he is vitally concerned. That the complainant is entitled to expect the law enforcement machinery to trace out his property and to apprehend the person responsible for the commission of an offence and to bring him to trial is quite legitimate and where a Court has passed an order which directly frustrates that objectives, to my mind, the complainant has every right to move this Court. The silence does not reflect well on the prosecuting authority, but I must, in this regard, take note of the submissions made by Shri S.B. Patil, who is a Senior Public Prosecutor, when he stated that in criminal cases, the earliest point of time is of crucial importance and where a Court prevents the investigating authority from even apprehending the accused by passing an anticipatory bail order that it is so destructive to the prosecution and the damage is so complete that the investigating officers are virtually demoralised into a position of concluding that even if the order were to be set aside at some future point of time that nothing useful could be achieved because the accused by then will have completely covered is tracks. This explanation is of some significance and, possibly, explains why the State did not move further in the matter, though Shri Patil stated that he fully supported the petitioner and insisted that the bail order be revoked even at this stage. He also pointed out that since the complainant had moved the High Court and the petition had been admitted that a second petition by the State was not considered necessary.
8. Dealing first with the merits of the case, Shri Shirodkar, learned Counsel appearing on behalf of the accused, who is respondent No. 1 to this petition, stated that a bare perusal of the complaint will indicate that it is the mere word of the complainant that he had entrusted a diamond of such high value to the accused and that the accused had not returned it. As against this, the accused has, in his application to the Court, specifically stated that the stone which was set in a ring had been returned by him to the accused. It is essential for me to bear in mind that this is a criminal case and that the trial is yet to proceed and, consequently, that neither of the parties should be prejudiced by the observations made at this stage. I do not, therefore, propose to express any view with regard to the merits except the barest minimum reference to the extent necessary for the decision of this petition. The material before the Sessions Court indicated that in the course of the investigation, it had transpired that the stone in question had, in fact, been entrusted to the accused after which the dispute arose and the Police had objected to the grant of bail at that point of time as the valuable property involved in this case had to be traced. The learned Additional Sessions Judge has totally by passed the merits of the case and merely taken into account the fact that the accused is not likely to abscond as the prime consideration for enlarging him on bail. Also, since the complainant was the aggrieved party, even though this was a State prosecution, it would have been advisable to issue notice to the complainant before deciding the matter. With regard to this last aspect, it is necessary for me to observe that it is more out of abundant caution than anything else that courts often observe this procedure because instances are not wanting where the prosecuting authority either due to negligence or sometimes in collusion with the accused does not properly point out to the Court all the material that needs to be projected. It only results in the multiplication of litigations at a subsequent point of time manifest with all sorts of allegations and a Court is often required to rehear and review the earlier order, but often the damage cannot be undone.
9. As regards Shri Shirodkar's submission that the complaint does not make out any case whatsoever against the accused and that, therefore, this proceeding will have to be categorised along with those instances where criminal machinery is being misused. Suffice it to say that the record indicates otherwise.
10. Shri Shirodkar thereafter canvassed the well-set principles that the bail having been granted the order should not normally be disturbed unless there are very cogent reasons for doing so. These he summarized on the basis of various judicial decisions which essentially concerned the cancellation of bail if the accused has misused his liberty by threatening or tampering with prosecution evidence or if there is a danger of the accused absconding, etc. Undoubtedly, those are the basic considerations which generally apply in cases where regular bail orders are passed.
11. A distinction is required to be made between regular bail orders and anticipatory bail orders. A total analysis of section 438 of the Code will indicate that it is intended to be only a preventive measure and, in a majority of cases, a stop-gap exercise. When a party approaches a Court anticipating arrest, the proceeding is in its very nascent stage and, therefore, one needs to bear in mind that interference should be minimal from the Court and nothing should be done which would interfere with or be destructive of the investigating process. Speed is of utmost importance in the early stage of criminal prosecution as much as delay is almost fatal and all untimely bail order can be destructive to an investigation. It is in these circumstances that even if an anticipatory bail order must be passed at this point of time that this should be done only after very carefully evaluating the facts and after hearing the Public Prosecutor. Since the time available is minimal, in appropriate cases, it would certainly be open to a Court even to pass as ad-interim order in appropriate cases for a very short duration incorporating all the necessary safeguards and to make that order time-bound as otherwise the accused will in all probability get the benefit of the delay. Even if the prosecution were to be heard, one needs to bear in mind that at this stage what can be pointed out to the Court on behalf of the prosecution would be very little and, therefore, even if a Court is of the view that an order for bail is justified, the order should be one of short duration and made reviewable by the regular Court at a subsequent point of time when the prosecution will be better equipped to deal with the situation. There are facets which distinguish an anticipatory bail order from a regular bail order. Having regard to the circumstances in which anticipatory bail orders are normally obtained, the grounds on which such order can be reviewed would be different to the general principles on which bail can be cancelled. To my mind, therefore, as indicated earlier, predominant considerations which would arise while reconsidering the anticipatory bail order are the following :
a) Whether the prosecution and the complainant were heard and whether they had a fair opportunity of pointing out to the Court the grounds, if any, why bail ought not to be granted.
b) At what stage of the investigation was the order passed and whether the passing of such an order could have the object of interfering with impeding or frustrating the investigation ?
c) Whether the considerations on which the bail order was passed were germane or whether the Court was either misled or had overlooked the basic or fundamental aspects of the case while passing the order.
12. In situations where the passing of an anticipatory bail order is untimely and where it would interfers with the investigating authority's right of having a fair and reasonable opportunity to investigate into the guilt or otherwise of the accused has been encroached upon and, in particular, in instances where the grounds on which the bail order has been granted are unjustifiable, interference with that order is certainly necessary.
13. Shri Shirodkar has made his submissions with certain authorities which I shall deal with presently. He relied on a judgment of a learned Single Judge in the case of Shantilal v. State of Maharashtra, 1981 Bom.C.R. 142, where the learned Magistrate cancelled an anticipatory bail order because the accused did not pay off the amount in keeping with the assurance given by him to the Court. The High Court disapproved of what had been done, and rightly so, but that case has no bearing on the facts of the case before me.
14. Next, Shri Shirodkar relied on the decision in the celebrated "Kissa Kursi Ka" case reported in Delhi Admn. v. Sanjay Gandhi, 1978 Cri.L.J. 952, wherein Chandrachud, C.J. (as he then was) had seriously disapproved of an attempt to cancel the bail granted to Sanjay Gandhi merely because the Prosecution witnesses had turned hostile and the Court held that unless a clear nexus was established between the witnesses turning hostile and any act by the accused which made them do so that there was no justification for cancellation of the bail. That principle again hardly arises in the present proceedings.
15. Reliance was thereafter placed on a decision of a learned Single Judge of this Court in the case of Jagannath v. State of Maharashtra, 1981 Cri.L.J. 1008. In this case, the High Court had observed that anticipatory bail should not be refused merely because the prosecution claims that they want the accused to be in Police Custody. The genuineness of the alleged need for police custody has to be examined and it must be balanced against the duty of courts to upheld the dignity of every citizen and to vigilently guard his right to liberty without jeopardizing the State objective of maintenance of law and order. There can be little dispute with regard to the correctness of this proposition and Padhya, J., (as he then was) has very correctly pointed out that the Court has to strike a healthy balance in these matters. Whereas on the one hand the State owes a duty to the aggrieved citizen to investigate into complaints and to bring to book the wrong-doers; and in the case of property offences to trace out and retrieve the property, anticipatory bail will not be refused merely on a request from the police unless the fact genuinely justify the retantion of the accused in custody. I have already held that, on the facts of the present case, the application of the Police was genuinely justified and the learned Additional Sessions Judge was, therefore, in error in having overruled the objection.
16. Shri Shirodkar has then relied, on a decision of the Supreme Court in the case of Raghubir Singh v. State of Bihar, 1987 Cri.L.J. 157. That was a case relating to the release on bail under the proviso to section 167(2) of the Code in which case the accused is entitled to bail by virtue of the default on the part of the prosecution in filing the chargesheet within the prescribed time. The consideration relating to the cancellation of bail granted under these circumstances as enunciated by the Supreme Court in this decision is totally irrelevant and it is unfortunate that this case has been indiscriminately cited in the present proceedings.
17. Reliance was also sought to be placed on another decision of the Supreme Court in the well known case of Bhagirathsinh Judeja v. State of Gujarat, 1984 Cri.L.J. 160. In the first instance, the bail granted in this case was not by way of an anticipatory bail order. A well-reasoned order was passed after hearing the parties and the accused was released on bail. Thereafter the High Court of Gujarat was moved for cancellation of the bail order, principally, on the ground that the offence was a very serious one and it was in these circumstances that the High Court cancelled the bail order. The Supreme Court disapproved of what had happened and observed that in the absence of very cogent and overwhelming circumstances that the bail order should not have been cancelled as it was not the objective to punish the accused before trial. The case in question is distinguishable on facts from the present one which again is an anticipatory bail order, and secondly, it needs to be noted that there was no plea before the Court that the investigation was being hampered.
18. Next, Shri Shirodkar relied upon another decision of the Supreme Court in the case of Harsh Sawhney v. Union Territory, Chandigarh, 1978 Cri.L.J. 774. The Supreme Court came to the conclusion, on the facts of that case, that it was unnecessary for the accused to be taken into custody merely for the purpose of a search of the premises and for interrogation. The judgment does not set out the facts of the case, but is merely mentions that the learned Judges were satisfied on those facts that bail ought to be granted. In criminal proceedings, the ratio of a decision would rest heavily on the facts of that particular case.
19. Lastly, Shri Shirodkar relied upon a decision of the Supreme Court in the case of Gurbaksh Singh v. State of Punjab, . We are only concerned with the passing observations made by Chandrachud, C.J., (as he then was) in paragraph (19) of the judgment. The Court has laid down a salutary principle that anticipatory bail should not be refused merely because the Police make out a case for remand of an offender to Police Custody. In the very well considered judgment, the Supreme Court has enunciated this principle, which is of predominant importance. It casts a duty on the Court to judicially evaluate the material placed before it and to independently decide as to whether anticipatory bail should be granted or not. Undoubtedly, barring very few instances, and possibly that category of suspicious cases where there is collusion between the Prosecution and the accused, it may reasonably be assumed that the prosecution will mechanically contend that a case for remand to custody has been made out. In this position, the Supreme Court has rightly observed that if it is pointed out that custody is required for the purpose of discovery under section 27 of the Evidence Act the person released on bail shall be liable to be taken in police custody for facilitating the discovery." There is no inflexible rule that can be pressed into operation and there is no prohibition imposed either on the Court of Session or on the High Court with regard to the refusal of anticipatory bail or cancellation thereof, in appropriate cases.
20. A careful consideration of all these decisions and the well-settled principles of law leave no doubt in my mind that it is the duty of the Court, particularly in cases where an anticipatory bail order has been questioned, to review that order and if the circumstances under which it was passed do not justify it to set it aside. For the reasons indicated by me earlier, the anticipatory bail order passed by the Court of Session in this case on 15-2-1991 is as set aside.
21. Shri Shirodkar pointed out to me that the accused is entitled on merits to apply for bail and to be granted such bail. That application is within the province of the trial Court and it is certainly open to the accused to approach that Court for the relief in question. It is clarified that this order whereby the anticipatory bail granted to the accused has been set aside shall have nothing to do with the merits of the case and that the Court before which any further application for grant or cancellation of bail are made shall hear and dispose of those applications strictly on merits. The rule is made absolute accordingly. Bail bond of the accused is cancelled.
22. After the above judgment was pronounced, learned Counsel appearing on behalf of the petitioner and the respondent No. 1 original accused, informed me that through the intervention of the Association, a suitable compromise has been arrived at between the parties and that, consequently, it would be unnecessary at this point of time to give effect to the operative part of the judgment by cancelling the bail of the accused as that would no longer be necessary. In view of this development, the petition will stand rejected and the operative part of the order would stand modified accordingly in so far as the rule would stand discharged.