2015 (8) TMI 724 - SC - Indian Laws

Bail Application - Section 437 & 439 of the Code of Criminal Procedure - Jurisdiction of High Court to grant bail - Held that - It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. High Court is bereft or devoid of power to jurisdiction upon a petition which firstly pleads surrender and, thereafter, prays for bail. The High Court could have perfunctorily taken the Appellant into its custody and then proceeded with the perusal of the prayer for bail; in the event of its coming to the conclusion that sufficient grounds had not been disclosed for enlargement on bail, necessary orders for judicial or police custody could have been ordained. A Judge is expected to perform his onerous calling impervious of any public pressure that may be brought to bear on him. There are no provisions in the CrPC contemplating the committal of a case to the High Court, thereby logically leaving its powers untrammelled. There are no restrictions on the High Court to entertain an application for bail provided always the accused is in custody, and this position obtains as soon as the accused actually surrenders himself to the Court. - surrender may also be accomplished by the commencement of any hearing before the Judge, however brief, where the accused person is formally identified and plainly would overtly have subjected himself to the control of the Court. Incontrovertibly, at the material time the Appellant was corporeally present in the Bombay High Court making Evans applicable to the case of the Appellant rather than the case of the respondent. A further singularity of the present case is that the offence has already been committed to Sessions, albeit, the accused/Appellant could not have been brought before the Magistrate. - 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. - The impugned Order is, accordingly, set aside - Decided in favour of appellant.

Summary

Issues Involved:
1. Legality of the High Court's decision to decline regular bail under Section 439 CrPC.
2. Jurisdiction of the High Court and Sessions Court to entertain bail applications.
3. Meaning and implications of 'custody' in the context of Section 439 CrPC.
4. Role of public prosecutors and private counsel in prosecutions.
5. Impact of precedents and the rule of per incuriam.

Detailed Analysis:

1. Legality of the High Court's Decision to Decline Regular Bail:
The appellant's application for regular bail under Section 439 CrPC was declined by the High Court, which held that the Magistrate's jurisdiction must be invoked first. The Supreme Court found this conclusion incorrect, emphasizing that the High Court and Sessions Court have concurrent powers under Section 439 CrPC to entertain bail applications. The High Court erred in holding that it lacked jurisdiction to consider the appellant's plea for surrender and bail.

2. Jurisdiction of the High Court and Sessions Court:
The Supreme Court clarified that the High Court and Sessions Court have the authority to entertain bail applications even if the accused has not been committed to their custody by a Magistrate. Section 439 CrPC empowers these courts to grant bail if the accused is in custody, which includes situations where the accused surrenders before the court. The court noted that the legislative scheme does not explicitly prohibit these courts from granting bail, thus affirming their jurisdiction in such matters.

3. Meaning and Implications of 'Custody':
The term 'custody' was analyzed in detail, with the court referring to various dictionaries and legal precedents. It concluded that 'custody' implies control over a person's liberty, which can include physical presence in court and submission to its jurisdiction. The court reiterated the principle from Niranjan Singh vs Prabhakar Rajaram Kharote, stating that a person is in custody when they surrender before the court and submit to its directions. This interpretation was crucial in determining that the High Court had the jurisdiction to entertain the bail application once the appellant surrendered.

4. Role of Public Prosecutors and Private Counsel:
The court discussed the role of public prosecutors and the limited role of private counsel in prosecutions. It emphasized that the prosecution must be conducted by the public prosecutor to ensure fairness and impartiality. Private counsel can assist but should not overshadow the public prosecutor's role. The court highlighted that the complainant or informant does not have a vested right to conduct the prosecution but may be heard at critical junctures to ensure their interests are protected.

5. Impact of Precedents and the Rule of Per Incuriam:
The court addressed the issue of precedents and the rule of per incuriam, particularly in relation to the decision in Niranjan Singh. It criticized the High Court for incorrectly declaring Niranjan Singh as per incuriam based on an editorial error in a later judgment (Rashmi Rekha Thatoi vs State of Orissa). The court reaffirmed that Niranjan Singh remains good law and binding precedent, emphasizing the importance of judicial discipline and the correct application of the per incuriam rule. The court underscored that a decision can only be considered per incuriam if it contradicts a prior binding precedent or overlooks statutory provisions.

Conclusion:
The Supreme Court set aside the High Court's order, directing it to consider the appellant's plea for surrender and bail. The court emphasized the concurrent jurisdiction of the High Court and Sessions Court under Section 439 CrPC, the correct interpretation of 'custody,' the roles of public prosecutors and private counsel, and the proper application of judicial precedents. The appeal was allowed, and the High Court was instructed to decide on the appellant's application without undue influence from public or media pressure.