Uttarakhand High Court
Mubarik & Another ....Petitioners vs State Of Uttarakhand & Others on 2 November, 2018
Bench: Rajiv Sharma, Manoj Kumar Tiwari
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Writ Petition No. 2059 of 2018
Mubarik & another ....Petitioners
Versus
State of Uttarakhand & others ....Respondents
Mr. Bhuwan Bhatt, Advocate for the petitioners.
Mr. Kuldeep S. Rawal, Brief Holder for the State.
Dated - 02.11.2018
Hon'ble Rajiv Sharma, J.
Hon'ble Manoj Kumar Tiwari, J.
Oral: Hon'ble Rajiv Sharma, J.
Learned Single Judge has referred to the Court a question of great public importance.
2. The core issue involved in the references is whether the High Court and the Court of Sessions exercises concurrent jurisdiction under Section 438 of Cr.P.C.
3. A learned Single Judge of this Court in Anticipatory Bail Application No.02 of 2018 has held that the provisions of Section 438 of Cr.P.C are guided by the principles of Regular Bail. He has also held that the provisions of Section 438 of Cr.P.C. are pari materia with Section 439.
4. Another Single Judge of this Court in Criminal Writ Petition No.2059 of 2018 has doubted the aforesaid view taken in Anticipatory Bail Application No.02 of 2018 and has referred the matter for consideration by a Larger Bench.
5. According to plain language of Section 438 (1) of Cr.P.C, any person who has reason to believe that he may be arrested on accusation of having committed a non- bailable offence, may apply to the High Court or the Court of Session.
26. The principles of Sections 438 and 439 of Cr.P.C. are not para materia.
7. Section 438 of Cr.P.C. is invoked by the accused who believes and is apprehending his arrest on accusation of committing a non-bailable offence.
8. Section 439 of Cr.P.C. enables the High Court or Court of Session to enlarge a person on bail who is accused of an offence and is in custody.
9. In AIR 1980 SC 1632, in the case of "Gurbaksh Singh Sibbia etc. vs. The State of Punjab", their Lordships of the Hon'ble Supreme Court have drawn the distinction between an ordinary order of bail and an order of anticipatory bail. Their Lordships have also held 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. Their Lordships have held 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 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 3 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."
"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 over-generous 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 beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi6, 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 to be found therein.
33. We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the ground that, after all, "the legislature in its wisdom" has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom. If they err, they are liable to be corrected."
10. The principles of anticipatory bail have also been dealt with by the Full Bench of Himachal Pradesh High Court in AIR 1980 Himachal Pradesh 36, in the case of "Mohan Lal & others vs. Prem Chand & others". The Full Bench has held that the applicant cannot be compelled to apply to Sessions Judge before approaching High Court. The Full Bench has held as under:-
"5. The new Code has made material changes in respect of the powers of revision of the Sessions Judge. While conferring concurrent 4 revisional jurisdiction on the High Court and the Court of Session, the right of a person to invoke the revisional jurisdiction of the High Court has been taken away in case he has already approached the Sessions Judge in revision. The relevant section is 397 and is in the following terms: --
"397 (1). The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record.
Explanation.-- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.
(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
The reason for such a restriction is that Section 399 confers on the Sessions Judge all the powers which the High Court can exercise. This section reads:--
"399 (1). In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401.
(2) Where any proceeding by way of revision is commenced before a Sessions Judge under Sub-section (1) the provisions of Sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.
(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court."
6. It will be noticed that Sub-section (3) of the aforementioned section prohibits a person from invoking the revisional jurisdiction of more than one courts. But an applicant is given liberty to choose the court. If he so desires he may straightway make an application to the High Court.
7. In view of the changes made by: the new Code, Rule 3 of Chapter I-A (b) of Vol. V of the High Court Rules and Orders so far as it requires an applicant to move the Sessions Judge before making an application before the High Court has become ultra vires. A rule cannot alter, amend or modify the statutory provisions. The right conferred by the new Code cannot be taken away by a rule framed by the High Court. The enforcement of this rule will result in preventing all persons to move the High Court in revision against all orders passed by a Magistrate. Once the statute has given a right to a person to choose between the High Court and the Court of Session it is for him to choose the Court. The Parliament having spoken we cannot be wiser.
59. We, therefore, hold that an applicant cannot be asked to apply to the Sessions Judge before making an application in the High Court.
11. A bare reading of the section shows that no restriction, unlike Sections 397 (3) and 399 (3), has been placed on a person wishing to move the High Court for anticipatory bail. A person is not required to move the Sessions Judge first. It is true that under the old Code wherever a concurrent jurisdiction was conferred on more than one court, the inferior Court was expected, as a matter of practice, to be approached first. However, in the case of anticipatory bail to force a person to move the Sessions Judge first may result in uncalled for curtailment of his right. For various reasons a person may like to move the High Court straightway and may not like to:
approach the Sessions Judge. Since the section relates to the liberty of a person, we would not like to impose any kind of restriction on his right to move thai High Court in the first instance.
13. We have given our earnest consideration to the reason given in Joginder Singh's case. We are afraid we cannot agree with that view. When a person makes an application for anticipatory bail in the High Court after a similar application of his has been rejected by the Sessions Judge, he does not invoke the revisional jurisdiction of the High Court but applies under Section 438. Assuming that revisional jurisdiction is invoked, we are not prepared to hold that Sessions Judge's order refusing anticipatory bail is an interlocutory order.
14. A learned single Judge of the Punjab and Haryana High Court in Chhajju Ram Godara v. State of Haryana held that normally the Court of Session should first be approached under Section 438 before approaching the High Court, though a party would be entitled to make out an adequate case for not approaching the Court of Session, We have perused this judgment. With all respects to the learned Judge we cannot agree with his view. No such restriction has been placed by law nor we would like to place any such restriction.
15. Our answers to the questions referred to the Full Bench are that persons can apply for revision or anticipatory bail to the High Court direct without first invoking the jurisdiction of the Sessions Judge."
11. In 1993 Cr.L.J. 3508, in the case of "Y.Chendrasekhara Rao & others vs. Y.V. Kamala Kumari & others", the Division Bench of Andhra Pradesh High Court has held that Section 438 confers power both on High Court and Court of Session to grant anticipatory bail. The denial of right of moving to High Court in first instance amounts to violation of Article 21 of the Constitution. The Division Bench has further held that it is not obligatory to file an application under Section 438 of Code before Court of Session in the first instance. The Division Bench has held as under:-
"24. Protection of life and personal liberty is a guaranteed fundamental right under Article 21 of the Constitution of India. It enjoins that no person shall be deprived of his life and personal liberty except according to the procedure established by law. The 6 protective umbrella of Article 21 comprehends many facets of personal liberty. As the Supreme Court recognised in Gurbaksh Singh's case (supra) denial of bail amounts to deprivation of personal liberty (paragraph 27 at page 1646). When the procedure incorporated under Section 438 in unequivocal language confers power both on the High Court and the Court of Session to grant anticipatory bail, denial of the right of move the High Court, in the first instance, clearly amounts to violation of the guaranteed fundamental right under Article 21 of the Constitution of India.
25. There is a little merit in the submission of the learned Public Prosecutor that, if the High Court entertains petitions under Section 438, in the first instance, without the Court of Session being moved earlier, this Court will be flooded with applications. The apprehension is clearly unfounded. If this Court has to exercise discretion, in the first instance, under Section 438, there is no warrant to predicate that the exercise of the discretion would result in large number of persons being granted relief under Section 438. In this context, we must clarify the legal position regarding the exercise of discretion under Section 438. Citing K. Dayanand Rao v. State of Andhra Pradesh, the learned Public Prosecutor says that, even if one does not have any material to believe that he may be arrested on an accusation of having committed a non-bailable offence, he can still move this Court and obtain anticipatory bail to ensure a possible future arrest. The aforesaid case does not warrant such an inference. After considering Gurubaksh Singh's case (supra), the Division Bench held that it is not a condition precedent for passing an order under Section 438, that there should be in existence of a crime number or FIR, against the person on whose behalf the petition is filed. From this it is not possible to infer that without any basis whatsoever any one can move this Court under Section 438 and obtain anticipatory bail. The Supreme Court in Gurubaksh Singh's case has ruled categorically at page 1141 (of Cri LJ) :
".... 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, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438, therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest ...."
These pertinent observations have been noticed by the Division Bench of this Court and, therefore, it is not possible to interpret the Division bench judgment as laying down the proposition that even in the absence of any material, relief can be granted under Section 438 by this Court. The words 'reason to believe' occurring in Section 438 obligate the existence of objective material for the subjective satisfaction of the person apprehending arrest. That objective material must be capable of being examined by the Court. Only then the Court, if satisfied, will grant relief under Section 438 but not otherwise.
26. When the words are plain in an enactment, reliance on usage for interpreting the same is forbidden. It is only when the provision of law is silent on some aspects but speaks on some other aspects, usage may well supply the defect. (See 'Craies On Statute Law', Seventh Edition page 153).
28. For the foregoing reasons we hold that it is not obligatory under Section 438 to move the Court of Session in the first instance. It is always open to this Court when an application is filed under Section 438, without first moving the Court of Session, to consider all the circumstances, and if the situation warrants, this Court can direct the party to move the Court of Session. Passing of such an order in consequence of exercise of discretion is different from insisting upon the party to move the Court of Session in the first instance as an inflexible rule of practice. The existing practice of the Registry in returning applications filed under Section 438 on the ground that 7 the Court of Session is not moved in the first instance, is clearly impermissible in law."
12. In 2004 Cr.L.J. 3427, in the case of "Balan vs. State of Kerala", the Division Bench of Kerala High Court has held that applicant seeking bail is not bound to approach Court of Sessions before he can move the High Court. The Division Bench has held as under:-
"11. In this context, it may also be noticed that even under Section 439, the Legislature has conferred power to grant bail on the High Court as well as the Court of Sessions. The two provisions do not even remotely suggest that the petition has to be filed before the Sessions Court first and then before the High Court. The power to grant bail has been conferred equally on both the Courts. It is clearly concurrent. The citizen has the opportunity to approach the Court of Sessions and then the High Court. It gives him a second chance to seek bail. However, in a case where he chooses to come directly to the High Court, he cannot be thrown out merely on the ground that he had failed to approach the Sessions Court. The petition is clearly maintainable. Equally. it cannot also be said that he must make out an 'exceptional' case before his petition for bail can be entertained. Acceptance of the view as laid down by the Court in Usman's case may result in defeating the right to liberty as guaranteed under the Constitution.
14. Thus, it is no surprise that the statute has given the applicant a choice. On a plain reading of the statutory provisions, it is clear that the right to choose the forum is with the person who is apprehending arrest or has been actually arrested. This right should not be curtailed by any self-imposed restraint. Such restrictions, as mentioned in the order. Can result in more harm than good and defeat the object with which the provision was introduced.
16. The counsel have brought to our notice various precedents. There is divergence of judicial opinion. In Onkar Nath v. State, 1979 Cri. LJ 1142 and Mohan Lal v. Prem Chand, AIR 1980 H.P. 36, the Full Benches of Allahabad and Himachal Pradesh High Courts have upheld the right of the applicant to choose the forum. Similarly, in Y Chendrasekhara Rao v. Y.N. Kamala Kumari, 1993 Crl. L.J. 3508, a Division Bench of the Andhra Pradesh High Court has upheld the right of the citizen. On the other hand, a restricted view has been taken in certain Single Bench decisions by the High Court of Rajastan, Punjab and Bombay. These cases are Hajialisher v. State of Rajasthan, 1976 Crl. L.J. 1658; Chhajju Ram Godara & Others v. State of Haryana & Another. 1978 Crl. L.J. 608, Jagannath v. State of Maharashtra 1981 Crl. L.J. 1808 and K.C. Iyya v. State of Karnataka 1985 Crl. L.J. 214. However, on consideration of the matter, the view taken by the two Full Benches and the Division Bench commends itself to us. We respectfully follow it.
17. In view of the above, we are of the opinion that the provisions of Sections 438 and 439 do not call for a restricted interpretation. The citizen has the right to choose. His application should be considered. Each case should be examined on its own merits. If it is found that the ground for grant of bail is not made out, the Court has the full jurisdiction to deny relief. Equally, if a case is made out the citizen's liberty should not be allowed to be curtailed. However, we do not find any ground to deny the citizen's right to choose the forum to approach the Court and to make a prayer. This is not warranted by the provision."
13. According to 2010 (1) SCC 679, in the case of "HDFC Bank Ltd. vs. J.J. Mannan @ J.M. John Paul & 8 another", their Lordships of the Hon'ble Supreme Court have held that the underlying principles of Section 438 of Cr.P.C. is that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. Their Lordships have held as under:-
"17. Having carefully considered the submissions made on behalf of the respective parties and the decisions referred to in support of their respective cases, we are of the view that the role of Respondent 1 in the entire episode did not entitle him to the relief of anticipatory bail, much less a blanket order of bail. However, that is now a closed chapter. But what is of relevance is whether the High Court should have worded its order in such a way that it could be interpreted to mean, as has been done by all concerned, that Respondent 1 was not required to even appear and surrender before the court during the entire investigation stage and the trial. Taking advantage of the same, Respondent 1 has successfully avoided the court from the very initial stage of investigation and even the trial. Such kind of an order is not contemplated under Section 438 CrPC as has been repeatedly explained by this Court. The said position has been clearly enunciated in Adri Dharan Das case.
18. Furthermore, it has also been consistently indicated that no blanket order could be passed under Section 438 CrPC to prevent the accused from being arrested at all in connection with the case. To avoid such an eventuality it was observed in Adri Dharan Das case1 that anticipatory bail is given for a limited duration to enable the accused to surrender and to obtain regular bail. The same view was reiterated in Salauddin case wherein it was, inter alia, observed that anticipatory bail should be of limited duration only and primarily on the expiry of that duration or extended duration, the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge- sheet is submitted.
19. The object of Section 438 CrPC has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of Section 438 CrPC cannot also be invoked to exempt the accused from surrendering to the court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of Section 438 CrPC, since even though a charge-sheet may be filed against an accused and charge is framed against him, he may still not appear before the court at all even during the trial.
20. Section 438 CrPC contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge-sheet, the accused has to surrender to the custody of the court and pray for regular bail. On the strength of an order granting anticipatory bail, an accused against whom charge has been framed, cannot avoid appearing before the trial court.
21. If what has been submitted on behalf of the appellant that Respondent 1 has never appeared before the trial court is to be accepted, it will lead to the absurd situation that charge was framed against the accused in his absence, which would defeat the very purpose of sub-section (2) of Section 240 CrPC.
22. Having regard to the above, the order of the High Court dated 3-7- 2006 is modified to the extent that Respondent 1 shall surrender before the trial court forthwith and pray for regular bail and the trial court 9 shall dispose of the same on merits, in accordance with law, before proceeding further with the trial."
14. Recently, in Supreme Today in 2014 (3) Supreme 285, their Lordships of the Hon'ble Supreme Court have held that the Session Court as well as the High Court exercises concurrent powers under Section 439 of Cr.P.C. Their Lordships have held as under:-
"26. In conclusion, therefore, we are of the opinion that the learned Single Judge erred in law in holding that he was devoid of jurisdiction so far as the application presented to him by the Appellant before us was concerned. Conceptually, he could have declined to accept the prayer to surrender to the Courts' custody, although, we are presently not aware of any reason for this option to be exercised. Once the prayer for surrender is accepted, the Appellant before us would come into the custody of the Court within the contemplation of Section 439 CrPC. The Sessions Court as well as the High Court, both of which exercised concurrent powers under Section 439, would then have to venture to the merits of the matter so as to decide whether the applicant/Appellant had shown sufficient reason or grounds for being enlarged on bail."
15. Similar view has been taken by their Lordships of the Hon'ble Supreme Court in 2018 (12) SCC 119, in the case of "Barun Chandra Thakur vs. Central Bureau of Investigation & others." Their Lordships have held as under:-
"15. Further, we cannot lose sight of the fact that this incident had received wide coverage in the media, both electronic and print. In fact, it can be said that there was a trial by media, therefore, when the private respondents have directly approached the High Court for grant of anticipatory/interim bail under Section 438 of the Code, that too when the High Court has concurrent jurisdiction, we cannot find any fault with the action of the private respondents."
16. In view of the aforesaid legal position, we have no hesitation in holding that the High Court and the Court of Session have concurrent jurisdiction under Section 438 of Cr.P.C. It is for the accused to choose the forum and the same cannot be restricted by construing the provision of Section 438 of Cr.P.C. narrowly.
17. We answer the reference accordingly.
18. In view of the above, the matter is remitted back to learned Single Judge who will proceed with the matter in accordance with law.
1019. Pending application, if any, also stands disposed of.
(Manoj Kumar Tiwari, J.) (Rajiv Sharma, J.) NISHANT