Calcutta High Court
Ashit Ghosh And Ors. vs State Of West Bengal on 11 December, 1996
Equivalent citations: 1997CRILJ1318
ORDER
1. A decision of the apex Court by its judicial implosion in Salauddin Abdul Samad Sheikh v. State of Marahashtra, 1996 SCC (Cri) 198 : (1996 Cri LJ 1368) has made to be the subject matter of debate at the bar over the legitimacy of fixation of outer limit in an anticipatory bail by the Court, if in agreement with the judicial precedents and law. Ultimately, the above decision has turned to an explosion about the concept, aim and object of the anticipatory bail.
2. The twin question that showed its head in the decision under criticism is whether anticipatory bail could be granted in a non-bailable offence after submission of charge-sheet while the other dealt with the permissibility fixation of outer limit in granting anticipatory bail. So far as the former is concerned, we have answered the issue in detail, since we have copiously dealt with it in Bimal Adak v. State where a batch of applications was dismissed on merit, by our order dated 8-10-1996. Therefore, we safely keep ourself away from the former question, since answered by us in the negative. Anticipatory bail is a shield against arrest erupting from reasons to believe. It is a social lubricant available to a petitioner to protect him from ignominy, harassment and vexatious allegation.
3. The latter question is of considerable significance about the fixation of outer limit in an anticipatory bail, for which, a legal debate ensued. The controversy, according to the learned Counsel for the parties, flow from the decision of Salauddin Abdul Samed (1996 Cri LJ 1368) (supra) which is contrary to the principle of law and the judicial decisions so far pronounced by the Courts of our country.
4. In amplifying the contention, the learned Counsel Sri Balai Roy has submitted with his usual fairness and sagacity that fixation of outer limit in an anticipatory bail is foreign to the provisions of law. Such limit cannot be imposed in enlarging a petitioner on an anticipatory bail as there is a complete black-out in the Section itself and for the pioneer decision on the score arrived at by the Supreme Court in its celebrated judgment Gurbaksh Singh v. State of Punjab, 1980 SCC (Cri) 465 : (1980 Cri LJ 1125).
5. To boost his claim, he has emphasized that fixation of outer limit in an anticipatory bail cannot have any universal application nor the same can be imposed as a matter of routine. The Court, in the facts and circumstances of each case, can fix the outer limit and the same is again to depend on a variety of factors, thus, it cannot have any universal application to the cases in general where anticipatory bail has been sought for by a party for having committed a non-bailable offence. The Supreme Court, according to him, has nowhere laid down that fixation of outer limit in an anticipatory bail is a sine qua non, in default, the order for anticipatory bail is an apple worm eaten, It is the wisdom of the Court where such conditions could be laid down in consideration of the nature and gravity of the offence and the antecedent of the petitioner. As a rule, the Court is not permitted or clothed with jurisdiction to fetter the life of the anticipatory bail. Such imposition to fetter the individual liberty in the anticipatory bail attributes to chain the relief which has serious impact on the personal liberty. Mr. Roy has not argued in the least that the Court is stripped off power to impose conditions in granting an anticipatory bail which can be aided by the provisions of Section 437 of the Cr.P.C. The judgment under criticism can neither acquire any legal force nor any persuasive value to become binding Upon all the Courts of our country, in particular, the apex Court in Gurbaksh Singh v. State, (1980 Cri LJ 1125) (supra) tangentially discussed the point which has not been disturbed, modified, analysed and distinguished by any subsequent decision of the apex Court of our country.
6. If one looks to the anatomy of the decision of Abdul Samad, the apex Court does not appear to have folded the relief in fixing the outer limit. The words "should be of a limited duration only and ordinarily" not only convey the import, implication, effect and meaning employed in the judgment but also afford clue to the Court to deal with the situation when the Court is caught up with a case where the commission of a non-bailable offence is patent.
7. Mr. Roy to crown success of his claim has emphasized in his argument with all adorightness while distinguishing the case of Abdul Samad (1966 Cri LJ 1368) that the apex Court in the instant decision has not adorned the decision and the principle of law laid down in earlier decisions of the Supreme Court over the point in case of disagreement with its earlier decisions. The points when identical and decided by a larger bench the subsequent bench of lesser strength cannot supersede the decision on the self-same point and could make a decision of its own. Its obedience is the law, rule and judicial convention which cannot be torn. The recognition of judicial discipline and respect, if not followed, shall lead to judicial anarchy which is not permissible in the annal of judicial history. The apex Court has rendered decisions which are numerical in strength where it laid down the duty of a Court, if it is caught up with such a situation. The earlier decision of larger Bench is the path finder for the subsequent bench of lesser strength. There will be a chronic failure of judicial discipline for non-observance of precedents pronounced by a larger bench. If it is indulged in or encouraged, it is sure that hydra with the jaws open shall swallow up the judicial order and the state of affairs will be brought into a state of turmoil.
8. The judge made laws created by judicial pronouncements should not tilt to expose all judicial decision into infirmities and chaotic situations. To stimulate his claim, he has argued that the decision when rendered by a Constitution Bench could only be altered, modified and distinguished by a decision of larger Bench. The principle of law laid down in Gurbaksh Singh (1980 Cri LJ 1125) does not carry the flag about the fixation of outer limit in an anticipatory bail should the application succeed as a normal rule nor it finds room in the body of the judgment. The fixation of outer limit after the decision of Abdul Samad (1996 Cri LJ 1368), according to Mr. Roy, oversteps the stare decisis settled in Gurbaksh Singh. The apex Court while disposing of the cases observed that the normal rule could not be to limit the operation of the order in relation to a period of time. The decision when rendered by a Constitution Bench bears a mandatory value. The personal liberty should not be tailored by injecting a period of its duration. The anticipatory bail should not be visited with blinkering vision, therefore, in the order.
9. Thus, the decision of Abdul Samad (1996 Cri LJ 1368) cannot be accepted as an authority in regard to fixation of outer limit in an anticipatory bail. The decision in Abdul Samad therefore, has no precedent value as the decision is per inqurium rendered by a bench of lesser strength. He is all the more intransigent that Supreme Court is bound by the judgment delivered by a larger bench.
10. He has further argued that a decision to become an authority, it is the obligation of the Court to decide it when raised. Therefore, a decision, if made, without raising the question it bears no judicial force and the same could not be regarded as judicial precedent.
11. In the backtrain of the above, the fixation of outer limit is not the aim to shorten the liberty of an individual against whom accusation has been made for having committed a non-bailable offence.
12. To iron out the crease, the argument of Mr. Roy is sought to have been refuted by the learned public prosecutor of the State. He has borrowed his inspiration from Abdul; Samad (1996 Cri LJ 1368). While amplifying the argument, he has made a forceful submission that the High Court should not be regarded as a trial Court which could assume such jurisdiction while disposing of the bail applications. Bail application is not an enquiry proceeding and the High Court does not assume jurisdiction of the trial Court when an offender has preferred an application for regular or anticipatory bail there. The High Court or the Court granting anticipatory bail cannot deal with it as enquiry proceeding while disposing of bail applications. Therefore, the fixation of outer limit does not have any faithful adherence to Section 438 of the Cr.P.C., is an argument without any lustre behind it.
13. Further, it is worthy to note that fixation of outer limit in the order of anticipatory bail is not alien to the provisions of Section 438 of the Cr.P.C. According to him Section 438(2) of the Cr.P.C. gives a bold publicity that the High Court or the court of session may include such conditions in such directions in the light of the facts of a particular case as it may think fit in addition to conditions envisaged in Section 438(2)(i)(ii)(iii)(iv) of the Cr.P.C.
14. To resolve the controversy, it stares on our face that the employment of the words "should be of a limited duration only and ordinarily" is used in the sense of "ought" but not in the sense of "must". It evinces, therefore, as argued, that it is not mandatory but directory. One may say so but if we taste the bottom of it, it seems that the argument does not appear to have received unstinted support for the survival of chapter XXXIII in the Code of Criminal Procedure. Chapter XII relates to Information to the Police and their power to investigate and Chapter XXXIII relates to provisions as to Bail and Bonds. According, to us, there is a nexus between the above two chapters in the Code of Criminal Procedure. It is undisputed that the life of an anticipatory bail spends its force upon submission of charge-sheet which is accorded during the stage of investigation but after submission of charge-sheet for the material disclosed about the commission of non-bailable offence, the anticipatory bail having, thus, granted lost its force.
15. If we borrow our wisdom from Chapter XII of the Cr.P.C., Section 173 relates to Report of Police Officer on completion of investigation. The investigation comes to an end on completion of it, for which, the period is not unlimited. The investigation is not to terminate at the pleasure of the investigating agency. It must have some outer limit. But for the anticipatory bail, it is needless to repeat that arrest is to remain in a state of suspended animation and in the event of arrest, the arrested person may be admitted to bail after resorting to Section 438(3), Cr.P.C. The granting of anticipatory bail and its termination for the submission of charge-sheet has its own outer limit which can never be circumscribed. It synchronises with the termination of investigation. The problem, if approached from a different angle, we are of the view that the anticipatory bail must have an outer limit does not suffer from any embarrassment or illegality in that the answer provided by Chapter XVI in the Code of Criminal Procedure is complete.
16. In the context it dwells on commencement of proceedings before the Magistrate. The provisions relating to Sections 208 & 209 by themselves put a lid on the argument of the learned Counsel that the outer limit fixed by the Court in granting anticipatory bail is, therefore, devoid of context. Both the Sections namely Sections 208 & 209 provide for commital proceedings when the cases are exclusively triable by the court of session. If the accused is not required to surrender or appear before the commital Court, the supply of copies of statements and documents to the accused in respect of the cases triable by the court of session could never be animated.
It would be a legal fiction that the accused without appearing before the Court is to receive copies of statements and documents as referred to in Section 173 of the Code of Criminal Procedure read with Sections 207, 208 & 209, Cr.P.C., instituted on police report of otherwise than on a police report.
17. It has been well established by a catena of decisions that anticipatory bail terminates with the surrender and appearance of the accused about which, there cannot be any two opinions. It will be an argument without substance behind it that the accused would receive copies of statements and documents without appearing or surrendering before the Court of Magistrate. The situation also, therefore, contemplates of an outer limit is an anticipatory bail in some form or the other.
18. The cases which are triable by the Magistrates cannot have any departure as the Magistrate is required under the procedure to make an enquiry of the offences alleged to have been committed by an accused in presence of him before charge and the punishment provided exceeding 3 years.
19. It is a privilege of the accused to remain all along on anticipatory bail even after submission of charge-sheet where his criminal liability prima facie has been sustained, is an argument devoid of substance. The learned Counsel for the parties have crossed their swords on the fixation of outer limit.
20. Mr. Roy to bolt the claim of the prosection has stressed on a citation of the apex Court Ganapati Sitaram Balvalkar v. Waman Sipat Mage (since deceased) through LRs AIR 1960 SC 1956.
21. The cream of the submission of Mr. Roy is that a matter decided by 4 Judges of Supreme Court, the subsequent decision by 3 Judges even assuming to be point on dispute and discordant to the decision of 4 Judges cannot be taken into account. He has also relied on Baldev Bhai Natawarlal Barot v. State of Gujarat, 1982 Cri LJ 508 (Guj) to contend that power of the Court to grant anticipatory bail is not being circumscribed limitations imposed in Section 437(I). But it appears from the decision cited above that it leaves no room for doubt that it dealt with the limitation of Section 437(I) of the Code and are not to be read in Section 438 of the Code. The central question that arose for decision in the ruling under reference is as to whether an accused having committed a murder is entitled to an anticipatory bail under Section 438 of the Cr.P.C. where the Court held that the limitation of Section 437(I) are not be read in Section 438 of the Code.
22. Mr. Roy has cited a number of decisions to notch a significant win over the claim of the state about the persuasive value of precedents projecting on administration of justice. The main strand of the citations made by Mr. Roy verges on the sacred duty of the Court in following or obeying the decision on identical point flowing from a larger bench.
23. In the background of the above, we are not inclined to burden our judgment with all the citations when, in particular, the song sung by the citations is one and the same bears no discordant note.
24. A tall claim has been made by the learned Counsel for the parties that the decision and the law laid down in Abdul Samad (1996 Cri LJ 1368) is a judgment per inquirium which cannot have any binding force of law as it is contrary to modalities laid down by the apex Court in Gurbaksh Singh (1980 Cri LJ 1125).
25. We are invited to answer the question when we are addressed over the same by the learned Counsel for the parties.
26. Now we turn ourselves to the decision under criticism.
27. The first question that survives for our consideration, in the context, is as to whether there is any departure made by the law laid down in Abdul Samad from Gurbaksh Singh (1980 Cri LJ 1125). Does it really infringe or encroach upon the principle of law laid down by the apex Court in Gurbaksh Singh ?.A dispassionate reading of the decision will resolve the controversy. For better appreciation of the argument advanced by the learned Counsel for the parties, we render below the entire paragraph 42 of 1980 SCC (Cri) 465 corresponding to :-
There was some discussion before us on certain minor modalities regarding the passing of bail orders under Section 438(I). Can an order of bail be passed under the Section without notice to the Public Prosecutor ? It can be. But notice should issue to the Public Prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The ad interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage. Should the operation of an order passed under Section 438(I) be limited in point of time? Not necessarily. The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order. The application may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as. aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time.
28. The paragraph extracted above in our view poses a situation when the FIR has not been filed by the investigating agency for the expression used, "the Court may if there are reasons for doing so limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by an order".
29. In the context, there is no obscurity when their Lordships further clarified, "the applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of an FIR as aforesaid".
(Emphasis supplied by the Court).
30. There fore, there is no scope for argument that the imposition of outer limit is dehors the statutory provisions. The philosophy behind the fixation of outer limit becomes obvious, if we read through Section 438(2) of the Cr.P.C, where the legislature in its ample wisdom has incorporated the expression, "the High Court or the Court of Session may include such conditions in such directions in the light of the facts of a particular case as it may think fit in addition to conditions 438(2) (ix)(ii)(iii) (iv) of the Cr.P.C.". The fixation of the outer limit may, therefore, come within the fold of, "such conditions".
31. Thus, the fixation of outer limit is some form or the other for the foregoing reasons is not impermissible. The contention of the learned Counsel for the petitioners that the Bench of lesser strength gave a fractured verdict and is marked in contrast with the principle of law laid down in Gurbaksh Singh (1080 Cri LJ 425) is illusory.
32. In our view, if a harmonious construction is put on in respect of the above two decisions, it is not legitimate to hold that there is a fundamental nomenclature distinction and difference as between the two decisions and (sic) have made a mess of the whole show.
33. Fixation of outer limit in the anticipatory bail is not, therefore, a mole on Section 438 of the Cr.P.C. nor it suffers even the soft bite of constitutional or fundamental rights of an individual.
We may, in the state of submissions, legitimately observe that in the concept of geometry there must be a point to be accompanied by a position without being deprived of maginitude. It is the flesh and bone of it. But the point agitated in the instant matter on behalf of the petitioners is bereft of magnitude and position.
For the foregoing reasonings, we answer the interrogatories in the manner indicated below:-
Qs.:- Is the fixation of outer limit in an anticipatory bail impermissible ?
Ans.: No. In the premise, we conclude our research on the issue with the aid of the learned Counsel for the parties in the negative. Accordingly, the claim of the petitioners fails and the claim of the state succeeds. With the aforesaid findings we dispose of the matter, thus.
We, however, clarify that we have not expressed any view that in no case the Court cannot grant anticipatory bail for unlimited period, as the said point did not arise before us.
The office is directed to take note of this judgment and put up appropriate note in the files of all the anticipatory bail applications, which were directed to abide by the result of this case. The learned Registrar (A.S.) High Court, is directed to communicate this order to all the subordinate Courts, which have jurisdiction to entertain the applications under Section 438 of the Code of Criminal Procedure.