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TMI Blog2018 (2) TMI 1943X X X X Extracts X X X X X X X X Extracts X X X X ..... uation so demands. It is further relevant to note that the word used in Section 88 any person has to be given wide meaning, which may include persons, who are not even accused in a case and appeared as witnesses. The present is not a case where accused was a free agent whether to appear or not. He was already issued non-bailable warrant of arrest as well as proceeding of Sections 82 and 83 Cr.P.C. had been initiated. In this view of the matter he was not entitled to the benefit of Section 88. The word may used in Section 88 confers a discretion on the Court whether to accept a bond from an accused from a person appearing in the Court or not. The both Special Judge, C.B.I. as well as the High Court has given cogent reasons for not exercising the power under Section 88 Cr.P.C. - there is no infirmity in the view taken by the Special Judge, C.B.I. as well as the High Court in coming to the conclusion that accused was not entitled to be released on acceptance of bond under Section 88 Cr.P.C. We thus do not find any error in the impugned judgment of the High Court. There are two reasons due to which we are unable to accept the request of the appellant to consider the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst several accused including Yadav Singh and the appellant Pankaj Jain. The trial court took cognizance by order dated 29.03.2016 summoning accused for 29.04.2016 for appearance. The appellant filed an application under Section 482 Cr.P.C. in the Allahabad High Court being Application No. 31090 of 2016, praying for quashing the entire criminal proceeding of Special Case No. 10 of 2016 as well as summoning order dated 29.03.2016. The application was finally disposed off by the High Court vide order dated 17.10.2016 with a direction that if the applicant appears and surrenders before the Court below within two weeks and applies for bail, then his bail application shall be considered and decided. The appellant filed an Special Leave Petition (Crl.) No. 10191/2016 against the judgment of the High Court dated 17.10.2016, which was dismissed by this Court as withdrawn on 16.01.2017 with liberty to apply for regular bail. 4. A supplementary charge sheet was filed on 31.05.2017, on the basis of which a Cognizance Order dated 07.06.2017 was passed by the Special Judge, C.B.I. taking cognizance against the appellant and other accused under Sections 120B, 420, 468, 471 of I.P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It would be open to the petitioner to move an application under Section 88 Cr.P.C. or a bail application, as may be advised. It will also be open to the petitioner to rely upon the judgments in support of his contention as noted above. It is for the trial Court to go through the matter and take a view thereupon. Insofar as this Court is concerned, no opinion on merits is expressed. Mr. Mukul Rohatgi, learned senior counsel, submits that the petitioner, who is present in the Court today, shall surrender and appear before the trial Court tomorrow, 07.12.2017. This statement of the learned senior counsel is noted. The writ petition stands disposed of in the aforesaid terms. 6. After order of this Court dated 06.12.2017, the appellant appeared before Court of Special Judge, C.B.I. and submitted an application dated 07.12.2017. In the application, following prayer has been made:- a) That this Hon ble Court may be pleased to forthwith take up and dispose this application made by the Applicant Pankaj Jain, who is voluntarily present before this Hon ble Court, pursuant to the liberty granted by the Hon ble Supreme Court vide Order dated 6.12.2017 pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner at liberty by permitting him to furnish his Bonds under Section 88 of Cr.P.C. to the satisfaction of the said Trial Court in RC No. RC/DST/2015/A/0004/CBI/STF/DLI dated 30.07.2015. (c) Any further Order as may be in the interest of justice may also be passed by this Hon ble Court. 8. The writ petition has been dismissed by Division Bench of the High Court vide its judgment and order dated 21.12.2017, against which judgment this appeal has been filed. 9. We have heard Shri Mukul Rohtagi, learned senior counsel appearing for the appellant and Shri Maninder Singh, Additional Solicitor General of India for the respondent. 10. Shri Mukul Rohtagi, learned senior counsel appearing for the appellant submits that appellant having not been arrested during investigation when he appeared before the Special Judge, C.B.I., it was obligatory on the part of the Court to have accepted the bail bond under Section 88 of the Cr.P.C. and released the appellant forthwith. It is submitted that the Court of Special Judge committed error in rejecting the application under Section 88. It is further submitted that bail application was not filed by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested during investigation or the Court has rightly exercised its jurisdiction under Section 88 in rejecting the application filed by the appellant praying for release by accepting the bond under Section 88 Cr.P.C. 14. Section 88 Cr.P.C. is a provision which is contained in Chapter VI Processes to Compel Appearance of the Code of Criminal Procedure, 1973. Chapter VI is divided in four Sections A.-Summons; B.-Warrant of arrest; C.- Proclamation and Attachment and D.-Other rules regarding processes. Section 88 provides as follows:- 88. Power to take bond for appearance. -When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial. 15. We need to first consider as to what was the import of the words may used in Section 88. 16. Justice G.P. Singh in Principles of Statutory Interpretation , 14th Edition, while considering the enabling words may explained the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings (Administrative Tribunal) Rules, 1947. In the above regard, in Paragraph 8 following has been stated:- 8. Rule 4(2) deals with the class of gazetted government servants and gives them the right to make a request to the Governor that their cases should be referred to the Tribunal in respect of matters specified in clauses (a) to (d) of sub-rule (1). The question for our decision is whether like the word may in Rule 4(1) which confers the discretion on the Governor, the word may in sub-rule (2) confers the discretion on him, or does the word may in sub-rule (2) really mean shall or must ? There is no doubt that the word may generally does not mean must or shall . But it is well settled that the word may is capable of meaning must or shall in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word may which denotes discretion should be construed to mean a command. Sometimes, the legislature uses the word may out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. In the present case, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they may , or shall, if they think fit, or, shall have power, or that it shall be law-ful for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have - to say the least - a compulsory force. 21. This Court noticed that in the 1958 Act, certain tests as a guidance have been laid down for exercise of discretion by the Court. The Court rejected the submission that there is unfettered discretion in the Appellate Court in exercising power under Section 11. The above case was also a case where discretion given to the Court to be exercised under certain guidelines and tests, which was a case of discretion coupled with duty. 22. This Court in the case of State of Kerala Ors. Vs. Kandath Distilleries, (2013) 6 SCC 573 came to consider the use of expression may in Kerala Abkari Act, 1902. The Court held that the expression conferred dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Additional Solicitor General that power under Section 88 Cr.P.C., the word may used in Section 88 Cr.P.C. is not mandatory and is a matter of judicial discretion. Paras 20, 21 and 22 of the judgment are to the following effect:- 20. Learned Shri Ram Jethmalani and learned Shri K.T.S. Tulsi, Sr. Advocates appearing for accused Sanjay Chandra, learned Shri Mukul Rohtagi, Sr. Advocate appearing for accused Vinod Goenka, learned Shri Soli Sorabjee and learned Shri Ranjit Kumar, Sr. Advocates appearing for accused Gautam Doshi, learned Shri Rajiv Nayar, Sr. Advocate appearing for accused Hari Nair and learned Shri Neeraj Kishan Kaul, Sr. Advocate appearing for accused Surendra Pipara, at the outset, have contended that the order of learned Special Judge dated 20th April, 2011 rejecting the bail of the petitioners is violative of the mandate of Section 88 Cr.P.C. It is contended that admittedly the petitioners were neither arrested during investigation nor they were produced in custody along with the charge sheet as envisaged under Section 170 Cr.P.C. Therefore, the trial court was supposed to release the petitioners on bail by seeking bonds with or without sureties in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge refusing bail to the petitioners is illegal being violation of Section 88 Cr.P.C. 26. Another judgment which is relevant in this context is judgment of Patna High Court in Dr. Anand Deo Singh Vs. The State of Bihar Ors., 2000(2) Patna Law Journal Reports 686. The Patna High Court had occasion to consider Section 88 Cr.P.C. where in Para 18, following has been held:- 18. In my considered view, Section 88 of the Code is an enabling provision, which vests a discretion in the Magistrate to exercise power under said Section asking the person to execute a bond for appearance only in bailable cases or in trivial cases and it cannot be resorted to in a case of serious offences. Section 436 of the Code itself provides that bond may be asked for only in cases of bailable offences. 27. This Court had occasion to consider Section 91 of Cr.P.C. 1898, which was akin to present Section 88 of 1973 Act, in Madhu Limaye Anr. Vs. Ved Murti Ors., (1970) 3 SCC 739, following observations were made in context of Section 91:- .In fact Section 91 applies to a person who is present in Court and is free because it speaks of his being bound over, to appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended not on their own volition but on the volition of the person who had their custody....... Thus, in a situation like this where the accused were not arrested under section 19 of PMLA during investigations and were not produced in custody for taking cognizance, section 88 of Cr.P.C. shall apply upon appearance of the accused person on his own volition before the Trial Court to furnish bonds for further appearances. 29. The present is not a case where accused was a free agent whether to appear or not. He was already issued non-bailable warrant of arrest as well as proceeding of Sections 82 and 83 Cr.P.C. had been initiated. In this view of the matter he was not entitled to the benefit of Section 88. 30. In the Punjab Haryana case, the High Court has relied on judgment of this Court in Madhu Limaye Vs. Ved Murti (supra) and held that Section 88 shall be applicable since accused were not arrested under Section 19 of PMLA during investigation and were not taken into custody for taking cognizance. What the Punjab Haryana High Court missed, is that this Court in the same paragraph had observed that shows that the person must be a free agent whether to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. 33. In the facts of the aforesaid case, the Court held that the trial court as well as the High Court ought to have exercised the discretion in granting the bail to the appellant. This Court in above circumstances, granted the bail to the appellant of that case. There cannot be any dispute to the proposition as laid down by this Court with regard to grant or refusal of the bail, which are well settled. The discretion to grant bail has to be exercised judiciously and in a humane manner and compassionately as has been laid down by this Court in the above case. 34. Shri Mukul Rohtagi, learned senior counsel appearing for the appellant submits that since the appellant has made a request to set him on liberty by accepting the bond before the Special Judge, C.B.I. as well may release the appellant on bail. He further submits that appellant is a person with 60% disability. He further submits that the loss which was alleged in the First Inf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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