Gujarat High Court
Krishnakumar Guruvachan & vs State Of Gujarat on 3 March, 2017
Author: C.L.Soni
Bench: C.L. Soni
R/CR.MA/4930/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR MODIFICATION ORDERS)
NO. 4930 of 2017
In
CRIMINAL MISC.APPLICATION NO. 2231 of 2017
=========================================
KRISHNAKUMAR GURUVACHAN & 1
Versus
STATE OF GUJARAT
=========================================
Appearance:
MR SUBHASH JHA, ADVOCATE WITH MR SANDEEP R LIMBANI,
ADVOCATE for the Applicants
MR. MN MARFATIA, ADVOCATE for the Complainant
MR MITESH AMIN PUBLIC PROSECUTOR WITH MR RAKESH PATEL,
ADDL. PUBLIC PROSECUTOR for the Respondent
=========================================
CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 03/03/2017
ORAL ORDER
[1] The following are the prayers made in paragraph no.7 of the present application:
(a) that this Hon'ble Court may be pleased to dispense with and/or relax the condition of surrendering the passports of the applicants before the trial court within a week in view of the dictum of the Apex Court in the matter of Suresh Nanda Vs. CBI - (2008) 3 SCC 674;
(b) that this Hon'ble Court may be pleased to dispense with the observations made in para 6 of the order dated 31.01.2017 to the effect that the investigating agency shall not be divested to seek remand of the applicants, if required etc.;
(c) Pending the hearing and final disposal of this application, this Hon'ble Court may be pleased to stay the execution, implementation and/or effect of the order dated 31.01.2017 of this Hon'ble Court only to the limited extent of the direction of this Hon'ble Court to surrender the Page 1 of 29 HC-NIC Page 1 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER passports of the applicants before the trial Court within a week as well as observations made in para 6 of the order to the effect that the investigating agency shall not be divested to seek remand of the applicants, if required etc;
(d) interim and ad-interim relief in terms of prayer clause (c) above be granted;
(e) any other further order and/or direction be given as the nature and circumstances of the case may require;
[2] The present application which is titled as an application for modification of the condition no.5(f) and paragraph no.6 in the order dated 31.01.2017 passed by this Court in Criminal Misc. Application No.2231 of 2017. The condition no.5(f) and observations made in paragraph no.6 of the order dated 31.01.2017 read as under.
5(f) shall not leave India without the permission of the Court and, if having passports shall surrender the same before the Trial Court within a week.
6. This order shall not be construed to divest the Investigating Agency to ask for remand of the applicants if required. In such case, the applicants shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if ultimately granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicants, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.
[3] Learned advocate Mr.Subhash Jha appearing with learned advocate Mr.Sandeep Limbani for the applicants submitted that the direction / order to surrender passport, while granting anticipatory Page 2 of 29 HC-NIC Page 2 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER bail to an accused, would amount to impounding of his passport, which power, the Court does not have. He submitted that by imposing such condition, the Court has gone beyond the power available to it under Section 438 of the Criminal Procedure Code, 1973 ("the Code"). Mr.Jha submitted that the observation / condition imposed for the police remand in the order of anticipatory bail also runs counter to the scheme of Section 438 of the Code, especially when the bail granted in exercise of power under Section 438 of the Code is to enure till the trial is over. Mr.Jha submitted that after the Court grants bail, if the Investigating Agency finds some more material showing deeper complicity in the offences alleged, it is open to the State to apply for cancellation of the bail but allowing the police to have the custody of the accused will negate the order of bail. He submitted that the provisions of Section 438 of the Code do not permit imposition of condition for police remand after bail is granted. He submitted that permitting the police to take remand would amount to relegating the accused to the authority of the police and to the Court of Magistrate to decide faith of the accused though the highest Court of the State has in its discretion granted bail to the accused. Mr.Jha submitted that it is not permissible to infuse condition not intended by legislature as it would amount to unreasonable restriction on the liberty of the accused which would be violative of Article 21 of the Constitution.
[4] Learned Public Prosecutor Mr.Mitsh Amin with learned Additional Public Prosecutor Mr.Rakesh Patel for the respondent - State submitted that Section 438(2) of the Code permits the Court to impose different conditions including the condition that the accused shall not leave India without prior permission of the Court and the Court may also impose any other conditions as it considers necessary. Mr.Amin submitted that imposition of condition to deposit passport is, thus, permitted under Section 438 read with Section 437(3) of the Code and when Court imposes such condition while Page 3 of 29 HC-NIC Page 3 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER exercising the power under Section 438 of the Code or even under Section 439 of the Code, it cannot be said that the condition to deposit the passport would amount to impounding of a passport. Mr.Amin submitted that though the bail granted under Section 438 of the Code is to enure till the trial is over, however, the nature of powers exercised under Section 438 and different than the powers exercised under Section 439 of the Code. He submitted that for the cognizable and non-bailable offences, the police has got independent power to investigate and such power of investigation includes the power to ask for police remand. Mr.Amin submitted that even for the accused who is granted anticipatory bail, the police may require investigation to be carried out and for such purpose, the police may need custody of the accused. He submitted that Section 438 of the Code would not affect the powers of the police of to ask for the police custody through the judicial process under Section 167 of the Code. Mr.Amin submitted that the issue about the power of the police to get the custody of the accused who is granted anticipatory bail, is answered in affirmative by the Hon'ble Division Bench of this Court in its the order passed in Criminal Misc. Application No.17816 of 2014, and, therefore, the Court may not entertain the present application.
[5] Mr.M. N. Marfatia, who is permitted to address the Court for the informant submitted, while adopting the arguments canvassed by learned Public Prosecutor Mr.Amin, that the Court may not accept application in its present form. He submitted that the Court has not put any condition ordering the police to take remand of the applicants but the Court has just clarified that the order granting anticipatory bail is not to be construed to divest the Investigating Agency to ask for the police remand of the applicant - accused. He submitted that the police has got independent powers under the provisions of the Code to ask for remand of the accused, such powers cannot said to have been taken away the order of bail under Section 438 of the Code. He therefore urged to reject the application.
Page 4 of 29
HC-NIC Page 4 of 29 Created On Mon Aug 14 04:16:50 IST 2017
R/CR.MA/4930/2017 ORDER
[6] The Court having heard learned advocates for both the sides finds that not only tenor of the application, but the submissions made for the applicants are as if challenge is made to the conditions imposed by this Court while releasing the applicants on anticipatory bail. The applicants, if are aggrieved by any of the conditions imposed by this Court, are to ventilate their grievances before the higher forum and not before this Court by titling the application as an application for modification of the condition. Be that as it may, the condition of surrendering of passport is misconceively perceived by the applicants to be an order of impounding their passports. The Court when imposes condition for deposit of passport while exercising powers under Section 438 it is to ensure that the accused remains within the reach of police and may make himself available by not leaving the territory of India. When Section 438 of the Code permits the Court to impose condition to the accused not to leave India and also permits imposition of any other conditions it deems necessary, the Court would be justified in asking the accused to surrender his passport to ensure due compliance of the condition not to leave India. Mr.Jha would, however, rely on the decision in the case of Suresh Nanda Vs. Central Bureau of Investigation, reported in (2008) 3 SCC 674. In the said case, the police, while conducting search, seized the passport of the appellant therein and in the context of the powers of the police under the Code and the powers to impound the passport under the Passport Act, the Hon'ble Supreme Court has held and observed in paragraph nos.9, 10, 11, 12, 15 and 18 as under:
9. "Impound" means to keep in custody of the law. There must be some distinct action which will show that documents or things have been impounded. According to Oxford Dictionary "impound" means to take legal or formal possession. In the present case, the passport of the appellant is in possession of CBI right from the date it has been seized by CBI. When we read Section 104 CrPC and Section 10 of the Act together, under CrPC, the court is empowered to impound any document or thing produced Page 5 of 29 HC-NIC Page 5 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER before it whereas the Act speaks specifically of impounding of the passport.
10. Thus, the Act is a special Act relating to a matter of passport, whereas Section 104 CrPC authorises the court to impound document or thing produced before it. Where there is a special Act dealing with specific subject, resort should be had to that Act instead of general Act providing for the matter connected with the specific Act. As the Passports Act is a special Act, the rule that "general provision should yield to the specific provision" is to be applied. See Damji Valji Shah Vs. LIC of India, Gobind Sugar Mills Ltd.Vs. State of Bihar and Belsund Sugar Co. Ltd. Vs. State of Bihar.
11. The Act being a specific Act whereas Section 104 CrPC is a general provision for impounding any document or thing, it shall prevail over that section in CrPC as regards the passport. Thus, by necessary implication, the power of court to impound any document or thing produced before it would exclude passport.
12. In the present case, no steps have been taken under Section 10 of the Act which provides for variation, impounding and revocation of the passports and travel documents. Section 10-A of the Act which provides for an order to suspend with immediate effect any passport or travel document; such other appropriate order which may have the effect of rendering any passport or travel document invalid, for a period not exceeding four weeks, if the Central Government or any designated officer on its satisfaction holds that it is necessary in public interest to do without prejudice to the generality of the provisions contained in Section 10 by approaching the Central government or any designated officer. Therefore, it appears that the passport of the appellant cannot be impounded except by the Passport Authority in accordance with law. The retention of the passport by the respondent (CBI) has not been done in conformity with the provisions of law as there is no order of the Passport Authorities under Section 10(3)(e) or by the Central Government or any designated officer under Section 10-A of the Act to impound the passport by the respondent exercising the powers vested under the Act."
15. It may be mentioned that there is a difference between seizing of a document and impounding a document. A seizure is made at a particular moment when a person or authority takes into his possession some Page 6 of 29 HC-NIC Page 6 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER property which was earlier not in his possession. Thus, seizure is done at a particular moment of time. However, if after seizing of a property or document the said property or document is retained for some period of time, then such retention amounts to impounding of the property or document. In Law Lexicon by P. Ramanatha Aiyar (2nd Edn.), the word "impound" has been defined to mean, "to take possession of a document or the like for being held in custody in accordance with law"
Thus, the word "impounding" really means retention of possession of goods or a document which has been seized.
18. In our opinion, even the court cannot impound a passport. Though, no doubt, Section 104 CrPC states that the court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the court to impound any document or thing other than a passport. This is because impounding of a "passport" is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while CrPC is a general law. It is well settled that the special law prevails over the general law vide G.P. Sing's Principles of Statutory Interpretation (9th Edn, p.133). This principle is expressed in the maxim generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the court under Section 104 CrPC though it can impound any other document or thing."
[7] By this decision, it is nowhere held that the deposit of the passport with the Court by way of condition of bail would amount to impounding of a passport. In the said case, the action of the police of seizing the passport was found to be illegal. However, when the Court in exercise of powers under Section 438 or Section 439 of the Code imposes condition of deposit of passport it will be in furtherance of condition not to leave India, and such would not amount to impounding of the passport.
[8] As regards the grievance made against the observations made in paragraph no.6 of the order passed by this Court granting Page 7 of 29 HC-NIC Page 7 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER anticipatory bail to the applicants, the same is not the condition imposed that the police should take the remand of the applicants. Such observations are made in all orders of anticipatory bail as clarificatory note that the order of grant of anticipatory bail shall not be construed to divest the Investigating Agency to ask for remand of the accused - the applicants if required by the Investigating Agency. The phrase "if required" would suggest that it will be for the Investigating Agency to decide in the nature of the accusation made whether to seek custody which is called as police remand for proper investigation. Such observations are made as a matter of practice at the time of exercise of the powers under Section 438 of the Code as the powers are exercised at a pre-arrest stage in connection with the First Information Report for which either the investigation is not done or is at its primitive stage. The investigation has its own importance and the material / evidence collected during investigation may be helpful to prove the offences alleged because it may become possible to link or connect the broken chain of events for committing the offences and therefore it will be for the Investigating Agency to decide in what manner and in what direction the investigation to be carried out which might include even to ask for remand of the accused. The police in cognizable offences can always arrest the accused without warrant and but shall not detain him in custody beyond 24 hours without the order of Magistrate under Section 167 of the Code. If such powers are intercepted on accused getting anticipatory bail, the police may not have benefit of keeping the accused in custody. In absence of order of anticipatory bail, the police when arrests the accused, detains him and then produces him before the learned Magistrate, it can get further custody of the accused for maximum 15 days for investigation by the order of the learned Magistrate but if either learned Magistrate refuses to grant remand of the accused or after granting the remand for some days the accused is sent to judicial custody and, thereafter, released on bail, there will be no right available with the police to ask for the custody of the Page 8 of 29 HC-NIC Page 8 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER accused. However, when the bail is granted under Section 438 of the Code, the police, since, is required to immediately release the accused on his arrest as per the order of the Court granting anticipatory bail, the police would not have the custody of the accused either as permitted under Section 457 of the Code and unless remand is granted after arrest and production of the accused before the learned Magistrate. The powers of the police for remand of the accused are independently recognized in Section 167 of the Code. They are neither hedged nor controlled by the provisions of Section 438 of the Code. Section 167 provides that whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57 and there are grounds for believing that the accusation or information is well-founded, the police can produce the accused before the Magistrate and ask for remand. When order granting bail is made under Section 438 of the Code the police will be obliged to immediately release the accused after his arrest and, therefore, what is contended is to be accepted, Section 167 will become dead letter for the police in respect of those accused who are granted bail in exercise of powers under Section 438 of the Code. The legislature would have neither intended that the provisions made under Section 167 of the Code would remain dead letter for those accused who are granted anticipatory bail nor would Section 438 efface exercise of powers Section 167 of the Code. The powers of police to investigate into cognizable offences are found incorporated in Chapter XII of the Code and when such powers could be exercised in connection with FIR in respect of which the accused is released on anticipatory bail, they would include the powers even to ask for remand of the accused. Whether to grant remand or not is to be decided by the Magistrate in exercise of judicial powers and, therefore, there is no question of relegating the accused to the lower authority of the Court. In view of independent powers available to the police to ask for remand, this Court while granting anticipatory bail has been all Page 9 of 29 HC-NIC Page 9 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER throughout observing in orders that the order granting anticipatory bail in exercise of powers under Section 438 of the Code shall not be construed to divest the Investigating Agency to ask for the remand of the accused, if required. When the Court is conscious enough to add the words "if required", the observation made in paragraph no.6 of the order granting bail to the applicants could not have been taken as condition imposed by this Court for taking remand of the applicants.
[9] While answering the reference in affirmative to the question "whether the Investigating Agency has power to get police custody under section 167 of the Code, when an accused is already granted bail under the provision of section 438 of the Code" in Criminal Misc. Application No.17816 of 2014, Hon'ble Division Bench of this Court has held and observed in paragraph nos.31 to 40 of its order as under:
31. In light of the above exposition of principle of law, it can be said that the Court should be alive to the need of striking balance while granting personal liberty between right of individual freedom and right of uninterrupted or unhampered investigation.
32. The Apex Court in the case of Naresh Kumar Yadav v. Ravindra Kumar and others, reported in (2008) 1 SCC 632, has discussed section 46(1) of the Cr.P.C. and stated that it deals with the manner in which the arrest needs to be made. It further has held that it intends to confer additional immunity from touch as envisaged under section 46(1) of the Cr.P.C. or any confinement.
33. The Apex Court in the case of Narinderjit Singh Sahni and another v.
Union of India, reported in AIR 2001 SC 3810, held and observed that the object of section 438 of the Cr.P.C. Is to relieve a person from unnecessary harassment and it is granted when the Court is otherwise convinced that there is no likelihood of misuse of the liberty granted since the accused would neither abscond nor take such steps so as to avoid due process of law. It can be, thus, noticed from the provision of the Cr.P.C. That while safeguarding the personal liberty of a person apprehending his arrest in connection with any offence, the Court is required to grant such immunity Page 10 of 29 HC-NIC Page 10 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER at the pre-arrest stage imposing certain conditions as it may deem fit and necessary. The language used in subsection (2) of section 438 of the Cr.P.C. speaks of incorporating the conditions where the list is not exhaustive. In other words, the Court while directing release of the accused on bail in the event of the arrest on any application made by a person apprehending of his arrest, can issue directions, some of which as could be provided under subsection (2)(i), (ii), (iii) and (iv) of section 438 of the Cr.P.C. His availability for interrogation by the Police Officer as and when required includes the custodial interrogation. The word 'custody' since does not amount to arrest, under all circumstances, it is not a must to arrest a person for invoking section 167(1) of the Cr.P.C. as his appearance before the Court concerned can be sufficiently considered as his custody by his presence. The applicant is not challenging the power of the Court of issuance of directions at the time of grant of anticipatory bail, however, the manner of exercise of powers is under challenge. According to the applicant, the exercise of such powers shall have to be in a manner provided under the law and not otherwise. The cumulative reading of all the provisions and various authorities discussed hereinabove do not in any manner even indicate cancellation of bail before custodial interrogation is permitted to the police under section 167 of the Cr.P.C.
34. We need to specify at this stage that the decision of the Constitutional Bench rendered in the case of Gurbaksh Singh Sibbia (supra) is the best judgment, which has been highlighted to amplify the need of exercise of powers under section 438 of the Cr.P.C. in the case of Siddharam Satlingappa Mhetre (supra), where the Apex Court had gone to an extent of saying that the regular bail need not be applied for, once a person is enlarged on anticipatory bail, there is every reason why the conditions enlisted in subsection (2) of section 438 of the Cr.P.C. Require implementation more scrupulously. Once the Court grants anticipatory bail unlike in the earlier period, where the Sessions Court or the High Court had an opportunity of considering the entire material of investigation before grant of regular bail, unless some glaring aspects are brought to the notice of the Court, in absence of any requirement to move further application for regular bail, upholding the interpretation sought to be canvassed by the applicant of cancelling the bail prior to permitting the custodial interrogation would surely hamper the investigation unimaginably.
35. As noted above, the Constitutional Bench in the case of Gurbaksh Singh Sibbia (supra) was conscious and while progressively interpreting Page 11 of 29 HC-NIC Page 11 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER the provision of section 438 of the Cr.P.C., it had all along emphasized the need of incorporating conditions enumerated in section 438(2) of the Cr.P.C. so as to ensure uninterrupted investigation. The Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so. In other words, the judicial custody is permissible beyond the period of fifteen days, however, no Magistrate is authorised to detain the accused person in judicial custody for a total period exceeding 90 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; or 60 days, where the investigation relates to any other offence and on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail shall be deemed to be so released under the provision of Chapter XXXIII for the purposes of that Chapter.
36. The Court can also not be oblivious of the provision of section 167(2)
(b) of the Cr.P.C., which does not authorise the Magistrate the detention of the accused in the custody of the police under this section unless the accused is produced before him in person for the first time and subsequently, every time till the accused remains in the custody, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage.
37. It is being made specifically clear that this Court is not deciding the right of Investigating Agency to ask for the custodial remand in the present case as it would be left to the authority concerned to decide where both the sides would be a liberty to agitate all the contentions on merits and the Court concerned if is satisfied that adequate grounds exist for grant of such custody, it can so do it or it is within its right to deny the same. However, the purpose of deciding this neat question of law, it would be also relevant to touch some of the factual aspects to indicate as to why the submissions canvassed of cancelling the bail prior to grant of custodial remand would jeopardise and hamper the investigation in every serious matter.
38. In the present case, the order of grant of anticipatory bail along with imposition of certain conditions, at no point of time, had been challenged Page 12 of 29 HC-NIC Page 12 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER after having enjoyed the fruits of such order after though the summons had been issued to the applicant, to which he had responded, however, after the arrest when he was made to understand his requirement to remain present before the Court concerned, where the request was to be made for the custody of the accused under section 167(2) of the Cr.P.C., he has chosen not to sign such document and no Magistrate is authorised to detain the accused in custody of the police unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police as provided under subsection 2(b) of section 167 of the Cr.P.C. and the Investigating Agency has attempted to serve the accused a notice of their desire to seek police custody and in his physical absence before the concerned Magistrate, the Court was unable to decide the aspect of custody. Insistence for cancellation of bail would take a further long course of action as challenge to any such cancellation would be ordinarily taken right upto the Apex Court and that would surely defeat the very objective of incorporating the conditions which include directing the person to make himself available for interrogation by the police as and when required. It would also cause loss of material evidence as all the vital clues and evidence would possibly be lost in the legal entanglement.
39. The Court cannot uphold the contention of the learned Counsel that it is not the look out of the Court as to what could be the possible fall out or consequences of the order concerned as the holistic approach and sensitize response to the situation is what is required of the Court. The Court surely cannot be oblivious of the consequences that its order would generate, if such interpretation leads to defeat the very object or if it nullifies any of the provisions existing on the statute book.
Even otherwise, from the discussion held hereinabove, neither the grant of anticipatory bail would preclude the Court from granting the order of remand to the police custody if the Investigating Agency makes a request for the same under section 167 of the Code, nor the cancellation of order of anticipatory bail granted under section 438 of the Code is aprerequisite to direct remand to the police custody under section 167 of the Code.
It is clarified that the observations made hereinabove in this judgment may not have any bearing on the outcome of the Remand Application and the same be decided on its own merits in accordance with Page 13 of 29 HC-NIC Page 13 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER law.
40. For the foregoing reasons, we answer the Reference in affirmation.
40.1 Since a request was made by both the sides to decide the present application being Criminal Miscellaneous Application No.17816 of 2014 along with the Reference, without once again referring the matter back to the learned Single Judge, Criminal Miscellaneous Application No.17816 of 2014 is dismissed. Rule is discharged.
[10] Learned advocate Mr.Jha, would, however, rely on the observation made in following decisions.
(a) In the case of Shri Gurbaksh Singh Sibbia and others Vs. State of Punjab, reported in (1980) 2 SCC 565, the Hon'ble Supreme Court has held and observed in paragraph nos.7, 8, 12 and 26 as under:-
7. The facility which Section 438 affords is generally referred to as 'anticipatory bail', an expression which was used by the Law Commission in its 41st report. Neither the section nor its marginal note so describes it but, the expression 'anticipatory bail' is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest. Any order of bail can, of course, be effective only from the time of arrest because, to grant bail, as stated in Wharton's Law Lexicon, is to 'set at liberty a person arrested or imprisoned, on security being taken for his appearance'. Thus, bail is basically release from restraint, more particularly, release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial. Personal recognisance, suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself at the trial of offence or offences of which he is charged and for which he was arrested. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the Page 14 of 29 HC-NIC Page 14 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. Section 46(1) of the Code of Criminal Procedure which deals with how arrests are to be made, provides that in making the arrest, the police officer or other person making the arrest "shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action". A direction under section 438 is intended to confer conditional immunity from this 'touch' or confinement.
8. No one can accuse the police of possessing a healing touch nor indeed does anyone have misgivings in regard to constraints consequent upon confinement in police custody. But, society has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of sangfroid, in so far as the ordinary rut of criminal investigation is concerned. It is the normal day-to-day business of the police to investigate into charges brought before them and, broadly and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminals to needless harassment. But the crimes, the criminals and even the complainants can occasionally possess extra-ordinary features. When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism. The powerful processes of criminal law can then be perverted for achieving extraneous ends.
Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation. That can even take the form of the parading of a respectable person in handcuffs, apparently on way to a court of justice. The foul deed is done when an adversary is exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible. It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973.
12. We find ourselves unable to accept, in their totality, the submissions of the learned Additional Solicitor General or the constraints which the Full Page 15 of 29 HC-NIC Page 15 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER Bench of the High Court has engrafted on the power conferred by Section
438. Clause (1) of Section 438 is couched in terms, broad and unqualified. By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provisions which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep-grained in our Criminal Jurisprudence as the presumption of innocence. Though the right to apply for anticipatory bail was conferred for the first time by Section 438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, in so far as the right to apply for bail is concerned. It had before it two cognate provisions of the Code: Section 437 which deals with the power of courts other than the Court of Session and the High Court to grant bail in non-bailable cases and Section 439 which deals with the "special powers" of the High Court and the Court of Session regarding bail. The whole of Section 437 is riddled and hedged in by restrictions on the power of certain courts to grant bail. That section reads thus :
"437. When bail may be taken in case of non-bailable offence. (1) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life :
Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail :
Provided further that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.
Page 16 of 29
HC-NIC Page 16 of 29 Created On Mon Aug 14 04:16:50 IST 2017
R/CR.MA/4930/2017 ORDER
(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 accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him 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 under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary-
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
(c) otherwise in the interests of justice.
(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 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 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 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 otherwise directs.
(7) If, at any time after the conclusion of the trial of a person accused of
Page 17 of 29
HC-NIC Page 17 of 29 Created On Mon Aug 14 04:16:50 IST 2017
R/CR.MA/4930/2017 ORDER
an 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 such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered."
Section 439 (1) (a) incorporates the conditions mentioned in Section 437 (3) if the offence in respect of which the bail is sought is of the nature specified in that sub-section. Section 439 reads thus :
"439. Special powers of High Court or Court of Session regarding bail. (1) A High Court or Court of Session may direct-
(a) That any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified :
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give 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."
The provisions of Section 437 and 439 furnished a convenient model for the legislature to copy while enacting Section 438. If it has not done so and has departed from a pattern which could easily be adopted with the necessary modifications, it would be wrong to refuse to give to the departure its full effect by assuming that it was not intended to serve any particular or specific purpose. The departure, in our opinion, was made advisedly and purposefully : Advisedly, at least in part, because of the 41st Report of the Law Commission which, while pointing out the necessity of Page 18 of 29 HC-NIC Page 18 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER introducing a provision in the Code enabling the High Court and the Court of Session to grant anticipatory bail, said in paragraph 29.9 that it had "considered" carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted" but had come to the conclusion that the question of granting such bail should be left "to the discretion of the court" and ought not to be fettered by the statutory provision itself, since the discretion was being conferred upon superior courts which were expected to exercise it judicially. The legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. That is why, departing from the terms of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be released on bail. Sub-section (2) of Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail. It provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, "may include such conditions in such directions in the light of the facts of the particular case, as it may think fit", including the conditions which are set out in clauses (i) to (iv) of sub-section (2). The proof of legislative intent can best be found in the language which the legislature uses. Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairement of the freedom of the individual and the presumption of innocence. It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable offence asks for bail. In the latter situation, adequate data is available to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions Page 19 of 29 HC-NIC Page 19 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER mentioned in Section 437.
26. We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An overgenerous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficient provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not be found therein.
(b) In the case of Savitri Agarwal and others Vs. State of Mahararashtra and another reported in (2009) 8 SCC 325 the Hon'ble Supreme Court has held and observed in paragraph nos.14, 15 and 24 as under:
14. Section 438 of the Code confers on the High Court and the Court of Session, the power to grant 'anticipatory bail' if the applicant has 'reason to believe' that he may be arrested on accusation of having committed a non-bailable offence.
15. The expression `anticipatory bail' has not been defined in the Code.
But as observed in Balchand Jain Vs. State of M.P.3, 'anticipatory bail' means 'bail in anticipation of arrest'. The expression `anticipatory bail' is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. When a competent court grants `anticipatory bail', Page 20 of 29 HC-NIC Page 20 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER it makes an order that in the event of arrest, a person shall be released on bail. There is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative.
24. While cautioning against imposition of unnecessary restrictions on the scope of the Section, because, in its opinion, over generous infusion of constraints and conditions, which were not to be found in Section 438 of the Code, could make the provision constitutionally vulnerable, since the right of personal freedom, as enshrined in Article 21 of the Constitution, cannot be made to depend on compliance with unreasonable restrictions, the Constitution Bench laid down the following guidelines, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail:
i) Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise.
ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere "fear" is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-
bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section.
iii) The observations made in Balchand Jain's case (supra), regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be Page 21 of 29 HC-NIC Page 21 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER read into Section 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.
iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One such condition can even be that in the event of the police making out a case of a likely 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 recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.
v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.
vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.
vii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective Page 22 of 29 HC-NIC Page 22 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER 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.
ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but 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 FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR.
(c) In the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others reported in (2011) 1 SCC 694, the Hon'ble Supreme Court has held and observed in paragraph nos.107,108, 109, 112 and 115 as under:
107. The Apex Court in Salauddin's case (supra) held that anticipatory bail should be granted only for a limited period and on the expiry of that duration it should be left to the regular court to deal with the matter is not the correct view. The reasons quoted in the said judgment is that anticipatory bail is granted at a stage when an investigation is incomplete and the court is not informed about the nature of evidence against the alleged offender.The said reason would not be right as the restriction is not seen in the enactment and bail orders by the High Court and Sessions Court are granted under sections 437 and 439 also at such stages and they are granted till the trial.
108. The view expressed by this Court in all the above referred judgments have to be reviewed and once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused.
SCOPE AND AMBIT OF ANTICIPATORY BAIL:
109. A good deal of misunderstanding with regard to the ambit and scope Page 23 of 29 HC-NIC Page 23 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER of section 438 Cr.P.C. could have been avoided in case the Constitution Bench decision of this court in Sibbia's case (supra) was correctly understood, appreciated and applied. This Court in the Sibbia's case (supra) laid down the following principles with regard to anticipatory bail:
a) Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India.
b) Filing of FIR is not a condition precedent to exercise of power under section 438.
c) Order under section 438 would not affect the right of police to conduct investigation.
d) Conditions mentioned in section 437 cannot be read into section 438.
e) Although the power to release on anticipatory bail can be described as of an "extraordinary" character this would "not justify the conclusion that the power must be exercised in exceptional cases only." Powers are discretionary to be exercised in light of the circumstances of each case.
f) Initial order can be passed without notice to the Public Prosecutor.
Thereafter, notice must be issued forthwith and question ought to be reexamined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.
112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
Page 24 of 29
HC-NIC Page 24 of 29 Created On Mon Aug 14 04:16:50 IST 2017
R/CR.MA/4930/2017 ORDER
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
115. In Joginder Kumar's case (supra), a three Judge Bench of this Court has referred to the 3rd report of the National Police Commission, in which it is mentioned that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails.
(d) In the case of Satyajit Ballubhai Desai and others Vs. State of Gujarat reported in (2014) 14 SCC 434, the Hon'ble Supreme Court has held and observed in paragraph no.9 as under:
Page 25 of 29HC-NIC Page 25 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER
9. Having considered and deliberated over the issue involved herein in the light of the legal position and existing facts of the case, we find substance in the plea raised on behalf of the appellants that the grant of order for police remand should be an exception and not a rule and for that the investigating agency is required to make out a strong case and must satisfy the learned Magistrate that without the police custody it would be impossible for the police authorities to undertake further investigation and only in that event police custody would be justified as the authorities specially at the magisterial level would do well to remind themselves that detention in police custody is generally disfavoured by law. The provisions of law lay down that such detention/police remand can be allowed only in special circumstances granted by a magistrate for reasons judicially scrutinised and for such limited purposes only as the necessities of the case may require. The scheme of Section 167 of the Criminal Procedure Code, 1973 is unambiguous in this regard and is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers which at times may be at the instance of an interested party also. But it is also equally true that the police custody although is not the be-all and end-all of the whole investigation, yet it is one of its primary requisites particularly in the investigation of serious and heinous crimes. The Legislature also noticed this and, has therefore, permitted limited police custody.
(e) In the case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat and another reported in (2016) 1 SCC 152, the Hon'ble Supreme Court has held and observed in paragraph no.25.7 as under:
25.7 In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.
[11] Mr. Jha also relied on judgment of Punjab and Haryana High Court in the case of Manmohan Singh Vs. State of Punjab delivered in Criminal Misc. Application No.13098-M of 1998 to submit that as held by the Punjab and Haryana High Court, the powers of Section 167 of the Code cannot be introduced or read into the provisions of Section Page 26 of 29 HC-NIC Page 26 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER 438 of the Code and no strange condition could be infused in the order granting bail. As far as the judgment of the Punjab and Haryana High Court is concerned, the Court finds that the challenge was to the order of the lower Court especially against the following clarification in the order.
"It is also made clear that during the period of anticipatory bail, police remand of the accused can be obtained."
In the context of such challenge, the Punjab and Haryana High Court observed that if the order granting anticipatory bail is impregnated with such a condition, that would totally eclipse the order granting anticipatory bail. If during the currency of anticipatory bail, police is authorised to take the accused in custody and seek remand that would be negating the order granting anticipatory bail and that would amount to giving with one hand and to take away with the other and therefore, the condition incorporated in the order is uncalled for, unwarranted and not permissible under the law.
[12] Thus, in the said case Punjab and Haryana High Court construed the clarification made by the Court below as a condition imposed while granting anticipatory bail. Irrespective of such view taken by the Punjab and Haryana High Court, the said judgment would not bind this Court when this Court on construction of the provisions made in the Code finds that observations made by this Court in paragraph no.6 are on existence independent power of police to ask for remand during the investigation which is not truncated by the grant of anticipatory bail and such observation could not be construed as a part of conditions of order granting anticipatory bail. The Court finds that the reliance placed by learned advocate Mr.Jha on the observations made by the Hon'ble Supreme Court in different judgments as referred above would be of no help to arrive at the conclusion that grant of anticipatory bail would take away the powers Page 27 of 29 HC-NIC Page 27 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER of police to ask for police remand.
[13] In fact, as observed in Siddharam Mhatre (supra), one of the principles laid down in Shri Gurbaksh Singh Sibbia (supra), is that the order under Section 438 would not affect the right of the police to conduct investigation. Therefore when Section 438 of the Code does not affect the right of the police to conduct investigation and when police remand is part of the investigation, it could be said that the power to ask for police remand exists independently than the provisions of Section 438 of the Code and, therefore, the grant of anticipatory bail under Section 438 of the Code would not take away the powers available to the police to ask for the police remand.
[14] Learned advocate Mr.Jha, however, made serious grievance that even after release of the applicants on bail pursuant to the order made by this Court, the applicants are being repeatedly asked to appear before the police to take them to the Court of learned Magistrate for purpose of their remand. Learned Public Prosecutor Mr.Amin, however, submitted that the police remains apprehensive that the date of arrest pursuant to the order of the anticipatory bail may not be considered as the first day for the custody of the police for the purpose of total period available for police remand, the Investigating Officer asked the applicants remain present before the Court of Magistrate to ensure that their request for police remand could be dealt with at the earliest. The Court, however, finds that apprehension as voiced by the learned Public Prosecutor is totally ill- founded as the period of 15 days for police remand would start reckoning from the date the Magistrate passes the order for handing over the custody of the applicants to the police. The release of accused on bail pursuant to the order made by the Sessions Court or the High Court under Section 438 of the Code is immediately after his arrest and he will not be in custody of the police. He could be taken in the police custody only after the police remand is given by the order Page 28 of 29 HC-NIC Page 28 of 29 Created On Mon Aug 14 04:16:50 IST 2017 R/CR.MA/4930/2017 ORDER of the Magistrate and from such date of remand, the period of 15 days would start reckoning. Even learned advocate Mr.Jha fairly stated that the period of police remand would start after the custody of the accused is allowed by the learned Magistrate in exercise of power under Section 167 of the Code.
[15] In view of the above, the Court finds that no case is made out for entertaining the prayers made in the present application. The application stands rejected.
(C.L.SONI, J.) vijay Page 29 of 29 HC-NIC Page 29 of 29 Created On Mon Aug 14 04:16:50 IST 2017