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TMI Blog2003 (4) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... n 438 of the Code of Criminal Procedure is at all maintainable at post cognizance stage of a case instituted on police report or complaint after the Court issued process like warrant of arrest for production of a person of having committed a non-bailable offence? -- this Special Bench was constituted. 2. In all the present applications, a prayer was made for anticipatory bail either after filing of the charge-sheet or after issuance of warrant of arrest by the Court in a particular proceeding or after process was issued by the Court after taking cognizance in complaint cases. 3. Such a question came up for consideration before a Division Bench of this Court in Sk. Alim and Ors. v. The State of West Bengal reported in 1993 C Cr. LR (Cal) 137 in which Their Lordships, referring to a decision of five Judges Bench of the Apex Court in Gurbux Singh v. State of Punjab reported in AIR 1980 SC 1632 held, inter alia, that prayer for anticipatory bail cannot be disallowed on the ground of submission of charge-sheet because it is not possible to import anything which is not in the section as thereby the liberty of a person may be jeopardized. It was also observed that such a course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he affirmative. On the other hand, Mr. Subhasish Ray, Mr. Sudipto Moitra, Additional Public Prosecutor and Mr. Kazi Safiullah, Public Prosecutor separately appearing on behalf of some of the O.P.s as well as of the State analysing different provisions of the Code of Criminal Procedure, as well as the decision of different High Court and the Apex Court contended that such an application for anticipatory bail under Section 438 of the Code is not maintainable at post cognizance stage of a case instituted on police report or in a complaint case after the Court issued process like warrant of arrest in a non-bailable offence. 8. Before entering into details, we deem it proper to reproduce Section 438 of the Cr.PC: 438. Direction for grant of bail to person apprehending arrest- (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court of the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imprisonment for a term of not less seven years, no final order shall be made on such application without giving the State not less than seven days notice to present its case. (c) If any person is arrested and detained in custody by an Officer-in-Charge of a Police Station before the disposal of the application of such person for a direction under this sub-section, the release of such person on bail by a Court having jurisdiction, pending such disposal, shall be subject to the provisions of Section 437. (1A) The provision of Sub-section (1) shall have effect notwithstanding anything to the contrary contained elsewhere in this Act or in any judgment, decree or order of any Court, Tribunal or other Authority. 10. In this connection it would be pertinent to mention that there was no provision relating to anticipatory bail in the Code earlier and it was introduced for the first time in the present Code of 1973 which came into force with effect from 1.4.1974 on the suggestion made in the 41st Report of Law Commission dated September 25, 1969 and the Joint Committee Report, the reason being ... where there are reasonable grounds for holding that a person accused of an off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1989. Their Lordships in paragraph 7 of this judgment took the view: ..... Article 21 enshrines the right to live with human dignity, a precious right to which every human being is entitled; those who have been for centuries, denied this right, more so. We find it difficult to accept the contention that Section 438 of the Cr.PC is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission in its 41st Report recommended introduction of a provision of grant of anticipatory bail. It observed: We agree that this would be a useful advantage. Though we must add that it in every exceptional cases that such power should be exercised. 14. In the light of this recommendation, Section 438 was incorporated, for the first time, in the Criminal Procedure Code of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of session of the High Court. Also anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, effective at the very moment of arrest. 19. In Bal Chand Jain's case (supra) the Apex Court initially took the view that granting of such anticipatory bail is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated or a frivolous case might be launched against him, or there are reasonable grounds for holding a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail such power is to be exercised. It is also viewed that this power being rather of an unusual nature, it is entrusted only to the higher echelons of the judiciary. It is a power exercisable in case of an anticipated accusation of non-bailable offence and there is no limitation as to the category of non-bailable offence in respect of which the power can be exercised. Of course, the view taken by the Apex Court in Bal Chand Jain's case (supra) as regards making out special case before granting an anticipatory bail was not approved by the Larger Bench of the Apex Court in Gur Baksh Singh's case (supra) and it was viewed that the applicant has undoubtedly to make out the case for an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nient 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 introducing a provision in the Code enabling the High Court and the Court of Session to grant anticipatory bail, said in para 39.9 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 antici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served: This is not to say that anticipatory bail if granted, must be granted without the imposition of any conditions. That will be plainly contrary to the very terms of Section 438. Though Sub-section (1) of that section says that the Court may, if it thinks fit issue the necessary direction for bail, Sub-section (2) confers on the Court the power to include such conditions in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in Clauses (i) to (iv) of that sub-section. The controversy therefore is not whether the Court has the power to impose conditions while granting anticipatory bail. It clearly and expressly has that power. The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute conditions which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General our answer clearly and emphatically, is in the negative. The H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of new situations. Life is never static and very situation has to be assessed in the content of the emerging concerns as and when it arisen. Therefore, even if we were to frame a 'Code for the grant of anticipatory bail' which really is the business of the legislature, it can at best furnish broad guidelines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the Court, by providing that it may grant ball 'if it thinks fit'. The concern of the Courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the Courts by law. 26. Mr. Dutta, Mr. Roy and Mr. Mukherjee accordingly tried to argue that the entire question posed before this Special Bench is required to be viewed on the basis of settled principle of law as was enunciated by the Apex Court and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the State that conceptually law of anticipatory bail is a law of conversion from non-bailability of offence to bailability and when such conversion takes place by the order of a Court under Section 438 of the Code, it overrides the non-bailability of the offence as mentioned in the schedule appended to the Code or as engrafted in the provision of any special or local law. There are modalities for effecting such conversion from non-bailability to bailability. It is argued that in respect of a case is pending investigation modalities are to call for the records of the investigation which are differently named at different States like case diary in West Bengal and special diary in some other States. On perusal of such case diaries the Court comes to a conclusion whether to grant or not to grant anticipatory bail when applied for. But if the provision of anticipatory bail applies in respect of a complaint case wherein warrant of arrest has been issued against the accused, it would not be possible on the part of the Court to follow some modality to consider the justifiability of the prayer by production of case diary or special diary as is done in the case of investigation by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the Code and hence, acting under this jurisdiction the High Court is debarred as the nature of power itself suggests, to exercise its appellate or revisional power in respect of the judicial proceeding or in respect of an order passed in course of a judicial proceeding. So it is submitted that structurally speaking application for grant of anticipatory bail in a complaint case is not possible. 32. It is also argued on behalf of the State that once a Magistrate takes cognizance on a complaint Sub-section (1) of Section 438 of the Code ceases to have any application. Functionaries under Section 438 Cr.PC are the High Court, Court of Sessions, Officer-in-Charge of a Police Station and the Magistrate under Section 438(3) of the Code of Criminal Procedure. Words employed in Section 438(3) of Cr.PC make it abundantly clear that the Magistrate who takes cognizance of the offence must synchronize issuance of warrant of arrest in conformity with the order of anticipatory bail previously granted by any of the Courts under Sub-section (1) of Section 438 Cr.PC. The Magistrate mentioned in Sub-section (3) of Section 438 Cr.PC can never be a Magistrate dealing with a complaint case. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stituting offence cannot be termed as accusation and as such accusation does not remain in the helm of even prima facie, tangible facts. Section 190(1)(a) read with Section 200 of the Code, which is necessary concomitant, unless the complainant is a public servant, in all complaint proceedings where Magistrate takes cognizance on complaint of facts and get the facts prima facie verified by evidence of the complainant and his witnesses, if any, under Section 200 of the Code substantive tangible material comes before Court which in fact and in law is much more than accusation . So it is argued that once material on the basis whereof reasonable belief to the formed by the person asking for anticipatory bail is beyond the province of accusation , the relief of anticipatory bail is not available to that person concerned. His reason to believe or reasonable belief must be and can only be based on accusation and not on substantive evidence adduced in Court. 34. It is also argued on behalf of the State that the Code or Criminal Procedure itself indicates that order must be passed in accordance with the procedure that has been prescribed and not otherwise. So when a warrant of arre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of judicial process and the administrative/executive assistance furnished to a Court for the proper continuation of a judicial proceeding i.e. in case where warrant of arrest is issued in such proceeding. These provisions of law are explicitly suggestion of harmonisation of the course of progress of a proceeding in Court with active participation of State regulated agency and it is immaterial whether such Court proceeding is instituted by the State or by an individual. So it has been concluded that the question posed before this Special Bench is to be answered in the negative. 37. It appears from the submissions of the learned counsels of both sides that they have argued at length analysing the scope as well as the principle of applicability of the provisions of Section 438 of the Code in general. But we are required to consider a case in which the process has been issued after taking cognizance in a case either instituted by police or on the basis of complaint. It is rightly argued on behalf of the petitioners before this Special Bench that in Gurbaksh Singh's case (supra) this question has not been dealt with. It has already been indicated that two Division Benches of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter charge-sheet has been filed in a case investigated by the police. So the learned counsels concluded that the question posed before this Special Bench is to be answered in affirmative. 40. It is to be noted that Section 438 of the Code does not indicate that an application under the said section is to be construed as an application for anticipatory bail. It is also to be noted that the Chapter XXXIII is titled provisions as to bail and bonds and thereafter the sections are arranged with the following heading: 436. In what cases bail to be taken. 437. When bail may be taken, in case of non-bailable offence. 438. Direction for grant of bail to person apprehending arrest. 439. Special powers of High Courts or Court of Sessions regarding bail. 41. The subsequent sections in the said chapter from Section 440 to 450 deal with the nature of the bonds how those are to be accepted, how the persons are to be released on execution of such bonds and what actions are required to be taken against the sureties failing to produce the persons released on bonds and so on. So under Section 436 whenever any person other than a person accused of non-bailable offence i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court or the Court of Session to release a person accused of an offence on bail. From this, it is clear that the High Court or the Court of Session may release a person on bail who is accused of a bailable or non-bailable offence at a post-arrest stage. It is to be noted that in respect of bailable offence if a person Is prepared at any time while in custody to give bail, such person shall be released on bail. If a Magistrate somehow does not grant bail to such person or if he cancels the bail under Section 436(2) of the Code, the High Court or the Court of Session can grant bail to such person under Section 439. 44. In Section 436 the words shall be released on bail have been used indicating that as soon as a person in custody in respect of bailable offence is prepared to give bail, he shall be released on bail. But in Section 437 the words used in such cases of custody are may be released on bail , while in Section 439 the High Court or Court of Session may direct that such person in custody be released on bail . In Section 438, however, the language used indicates that the High Court or the Court of Session may, if it thanks fit, direct that in the event of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olative of Article 21 of the Constitution of India. In West Bengal so long the right to apply before the High Court or the Court of Session under Section 438 is acknowledged by the amended West Bengal Act, 1990 (No. 25 of 1990) we fail to accept the argument of the opposite parties and the State that such an application is not maintainable after the filing of the charge-sheet or after the issuance of the process in a complaint case. When the statute has given the power to file an application under Section 438 that power cannot be taken away in the manner as argued on behalf of the opposite parties and the State. 46. As regards other aspects of maintainability of an application under Section 438 at a post cognizance stage, we like to point out that while passing an order under Section 438 the High Court or the Court of Session, wherever such an application is presented for consideration, is required to consider the application on merits, and in the order imposes conditions, in the light of the facts of a particular case, as may be thought fit and proper. In Section 438(2) it is further clarified that the conditions which could be imposed under Section 437(3) can also be imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h officer or the Court to act appropriately in conformity with the direction Issued under Sub-section (1). There is nothing in Sub-section (3) which prohibits the High Court or the Court of Session or the arresting officer or the Magistrate taking cognizance limiting the scope and ambit of Section 438. The Sub-section (3) of Section 438 is merely a guideline as regards action to be taken by the arresting officer or the Magistrate in respect of an order passed under Sub-section (1). So it cannot be said that in view of the Sub-section (3), it is required to be concluded that an application under Section 438 is not maintainable. 48. In this connection, it is further to be noticed from Section 438(2)(iv) that it is within the competence of the High Court or the Court of Session while passing an order under Section 438 to impose such other condition as may be imposed under Section 437(3) of the Code as if the bail were granted under that section. Under Section 437(3) a condition can be imposed in order to ensure that the applicant shall attend in accordance with the conditions of the bond executed under Chapter XXXIII. That inclusion of a condition to meet the investigating office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code. 49. It was argued on behalf of the State that in a police investigated case, the Public Prosecutor can produce the relevant records of investigation at the time of hearing of an application under Section 438. But such an action cannot be taken in respect of a case instituted on a complaint by a private individual. It is to be noted from the amended Sub-section (1) of Section 438 as applicable in West Bengal that a proviso has been added to Sub-section (1)(b) which is reproduced below: Provided that where the apprehended accusation relates to an offence punishable with death imprisonment for life or imprisonment for a term of not less than 7 years, no final order shall be made on such application without giving the State not less than 7 days notice to present its case. 50. This proviso indicates that in case of serious offences especially in respect of cases mainly triable by Court of Session, notice is required to be given to the State so that the State can present its case while the application under Section 438 of the Code is taken up for hearing. But there is nothing in the said proviso necessitating issuance of a notice to the State in respect of the offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was that if a warrant of arrest issued by a Court of Law after the filing of the charge-sheet or under Section 204 of the Code, the High Court or the Court of Session while exercising power under Section 438 is not competent to cancel the said warrant of arrest though there are other provisions on the basis of which such Courts can interfere with that order. But the provision of Section 70(2) also indicates that the Court issuing the warrant of arrest has the power to cancel it. So as soon as the issuing Court is apprised of the fact that an order under Section 438 in respect of the person against whom warrant of arrest has been issued is in force, it may cancel a non-bailable warrant or arrest or can convert it in a bailable warrant of arrest, the power of which is already given under Sub-section (3) of Section 438. Section 70(2) of the Code is also sufficient to indicate that as soon as the person against whom a warrant of arrest has been issued is arrested, it comes to an end, meaning that the warrant of arrest has been executed. So after arresting a person if it is detected that there is an order under Section 438, the arresting officer can proceed in accordance with Sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 437 or under Section 438 of the Code. It is desirable to keep in view the observations of the Law Commission and also of the Apex Court as regards the necessity of passing an order under Section 438 in these days when political vendetta and other factors rule the realm of police investigation of a case. We are not unmindful of a situation that in a complaint case a process can be issued relying on the statements of the witnesses examined under Section 200. But the person against whom those statements were made might be falsely implicated to satisfy political or personal vengeance and may be without his knowledge. 54. It is a settled principle of law that a man cannot be stated to be guilty unless his guilt is proved after adducing reliable evidence. Sending a person to custody after finding his guilt is a rule. But before finding the accused guilty, it is not always possible or permissible to conclude on the basis of the charge-sheet or on the basis of the process issued under Section 204 in a complaint case that custody of that person is necessary. The word bail has not been defined in the Code, the literal meaning of the word bail is to set free or liberate a person on s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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