ORDER
1. For the reasons recorded separately this Full Bench unanimously holds that in exercise of powers under Article 226 of the Constitution, while issuing direction and command to the Magistrate or the Court of Sessions as the case may be, to consider the bail application; time Schedule for concluding bail proceedings cannot be fixed. Consequently, decision rendered in Dr. Hidavat Hussain Khan v. State of U.P., (1992 Crl. LJ 3534) is overruled and the decision rendere.d in Writ Petition No. 919 of 1992, Noor Mohammad v. State of U.P. and Ors. is upheld.
2. Accordingly, all the three writ petitions are disposed of with the direction that if the petitioners are arrested and brought before the competent Court or voluntarily surrender before the competent Court, and apply for bail, their bail applications will be decided by the competent Court as expediously as possible in accordance with law.
B.M. Lal, J.
(2A) Following question is to be answered by this Full Bench :
"Whether while rejecting the writ petition filed for quashing First Information Report, this Court in exercise of its powers under Article 226 of the Constitution of India can issue a writ, order or direction in the nature of mandamus commanding the Magistrate or the Court of Session as the case may be, to consider bail application of the accused/ petitioner on the same day, in the event of failure to conclude hearing of the bail application same day, to release the accused/ petitioner on bail or on his personal bond same day, by granting interim bail pending disposal of the bail application ?
2(B) Divergent judicial views surfaced in this Court on this question. According to the view taken in_Dr. Hidavat Hussain Khan v. State of U.P. and Ors. (1992 Cri. LJ 3534), a Division Bench of this Court held that this Court can issue direction to consider bail same day and in the event of failure to do so to release the accused on interim bail or on his personal bond same day till disposal of the bail application.
3. Whereas according to another view taken in Writ Petition No 919 of 1992 (Noor Mohammad v. State of U.P. and Ors.), a Division Bench of this Court (Lucknow Bench) taking contrary view held that such directions fixing time limit to consider bail same day and in the event of failure to do so to release the accused on interim bail or personal bond cannot be issued.
4. Before resolving the controversy in issue, it appears necessary to state about the genesis of this Full Bench.
5. Vide section 9 of U.P. Act No./l 6 of 1976 State Legislature of Uttar Pradesh, repelled the operation of Section 438 of the Code of Criminal Procedure (hereinafter referred to as the Code) within territorial limits of Uttar Pradesh, with effect from 28-11-1975.
6. Upholding the validity of U.P. Act No. 16 of 1976 referred to above, this Court ruled that aforesaid repeal does not violate the mandates enshrined under Articles 14, 19 & 21 of the Constitution of India.
7. This view taken by this Court is recently affirmed by the apex Court vide paragraph 368 (15) of the judgment in Kartar Singh v. State of Punjab holding that deletion of Section 438 of the Code in the State of U.P. vide Section 9 of U.P. Amendment Act, 1976, does not offend either Article 14 or Article 19 or Article 21 of the Constitution, and the State Legislature is competent to delete that provision which is in respect of one of the matters enumerated in the Concurrent List (List-III) of the VIIth Schedule in the Constitution and such deletion is valid under Article 245(2), 345(2) of the Constitution.
8. Thus, aforesaid repeal of Section 438 of the Code resulted into opening of flood-gates for the petitions under Article 226 of the Constitution seeking directions to quash First Information Report as well as to consider the bail application on the same day, so that petitioner (accused) may not be required to go inside the Jail and in this way a device is invented to get over the absence of Section 439 of the Code.
9. Faced with the above referred two conflicting views, the instant petitions (Writ No. 3643 of 1992, Dr. Vinod Narain v. State of U.P., Writ No. 33799 of 1992, Smt. Sushila Pant v. S.H.O., P.S Srinagar and Ors., and Writ No. Nil of 1993, Smt. Bhagwan Devi and Ors. v. State of U.P. and Ors.) came to be listed before a Division Bench of this Court presided over by one of us (Hon'ble Palok Basu, J.) and considering the above-mentioned conflicting views on the issue, the Bench referred matter to Hon'ble the Chief Justice for constituting a larger Bench.
10. Accordingly, this Full Bench came to be constituted to consider the question formulated above.
11. At the outset it may be mentioned that following the view taken in Dr. Hidavat Hussain Khan's case 1992 Cri.LJ 3534 (All) (Supra), number of decisions have been rendered by this Court even directing the Magistrate to dispose of the bail application during early hours of the day on priority basis so as to enable the accused to move the Sessions Court same day in the event of dismissal of his baiI application by the Magistrate and further directing even the sessions court to decide bail application on the same day and in the event of failure to do so to release the accused on interim bail pending disposal of his bail application.
12. This Full Bench heard this matter at great length. Eminent lawyers of this Court addressed this Bench for the days and weeks together and enlightened us with their ingenious arguments. Sarvshri Tapan Ghosh and G.S. Chaturvedi appeared for the petitioners. Bar Association of the High Court of Judicature at Allahabad also moved an application requesting this Bench to hear learned Senior members of the Bar considering public importance of the issue involved in this case and nominated Sarvshri R.K. Jain, senior Advocate of this Court to advance arguments on behalf of the Bar Association, and accordingly he argued on behalf of the Bar Association. Considering importance of the matter in issue, this Bench also requested a Senior Advocate of this Court and former Solicitor-General of India Sarvshri A.D. Giri to argue as amicus curiae. Sarvshri D. S. Mishra and J.S. Sengar, learned Senior Advocates of this Court practising on criminal side were also requested to address this Bench.
13. Sri Rakesh Dwivedi, learned Additional Advocate General, U.P. addressed this Court on behalf of the respondent, State of U.P.
14. Supporting the view taken by Division Bench of this Court in Dr. Hidayat Hussain Khan's case 1992 Cri LJ 3534 (All) (supra), learned Counsel appearing for the petitioners and the learned Counsel appearing as amicus curiae, contended in nut-shell that besides the provisions of the Code, the provisions of Articles 21 & 22 of the Constitution of India confer valuable rights upon the citizen, and non-confirmance thereof is non-confirmance of the procedure established by law as the concept of the expression 'Life and Personal Liberty' occurring in Article 21 of the Constitution of India is developed by the Apex Court in catena of decisions and includes the right to live with human dignity which contains guarantee against torture and assault by the State, and the personal liberty has been put at the highest pedestal in the Constitution of India. Consequently the view taken in Dr. Hidavat Hussain Khan's case 1992 Cri LJ 3534 (All) (supra) be upheld, overruling the dictum laid down in Noor Mohammad's case (supra).
15. On the other hand, supporting the view taken by another Division Bench of this Court in Noor Mohammad's case (supra), Sri Rakesh Dwivedi, learned Additional Advocate General contended that in the absence of any specific provision in the Code enabling the Magistrate or the Court of Session to do so, no such direction to consider the bail same day can be issued by this Court while dismissing the writ petition. Issuance of such direction is not only contrary to law but also amounts to innovation of law by the Court under the garb of interpretation, which certainly is not the function of the Court, and therefore the view taken in Noor Mohammad's case (supra) be maintained overruling the dictum laid down in Dr. Hidayat Hussain Khan's case 1992 Cri LJ 3534 (All) (supra).
16. To meet the rival contentions referred to above, it is necessary to discuss relevant provisions of the Code appearing in Chapters V, VI, XII & XXXIII of the Code viz. the provisions of Section 41, 50, 57, 88, 154, 157, 167, 169, 303, 309 and 437 besides the provisions of Articles 21 and 22 of the Constitution of India, so as to find out whether the Code explicitly or impliedly gives power and jurisdiction to the Court to issue directions in the like nature as issued in Dr. Hidayat Hussain Khan's case 1992 Cri.LJ 3534 (All) (supra).
17. Provisions of Section 41 of the Code deal with a situation when police may arrest any person without warrant. It empowers the Police Officer to arrest any person without an order from Magistrate and without a warrant. Thus, arrest effected pursuant to investigation would be under the provisions of this Section.
18. The next pivot provision which has been incorporated under the Code is Section 50. It is analogous to the provisions of Sub-clause (1) of Article 22 of the Constitution of India. It envisages that the person arrested without warrant, be informed of the grounds of arrest and of right to bail, Thus, this Section 50 extends a valuable right in favour of the citizen in as much as if without assigning any ground, in disobedience of the provisions of Section 50 of the Code, the accused is arrested and put behind the bars, may be temporarily, such arrest would be illegal and violative of fundamental rights guaranteed under Article 21 of the Constitution.
19. This Section 50 of the Code, as observed above, is a new one and has been incorporated on the recommendations of the joint committee, and being analogous to the provisions of Article 22 of the Constitution, issue a constitutional mandate to the Investigating Officer to inform the arrestee in writing, the moment arrest is effected, about his right of bail and ground of arrest so that accused may avail of his remedy. This is not all. The scope of this provision is further expanded by the apex Court while interpreting this clause in Sheela Barse v. State of Maharashtra , the apex Court ruled that as soon as a person is arrested by the police officer, the duty cast upon such officer is to obtain name of any relation or friend from the arrestee, whom he would like to be informed about his arrest, and the police officer should get in touch with such relation or friend and inform him about the arrest.
20. Similar view is further reiterated by the apex Court in Joginder Kumar v. State of U.P. and Ors.,
21. The object evidently of such information to the relation or friend is, to secure "release of the person arrested. This is not all, the Apex Court further ruled that in view of Article 39-A of the Constitution, in the event of arrest by the police, if the arrestee is not having any relation or friend or he declines to disclose their addresses for any reason, the duty cast upon the police officer is to give intimation of such arrest to the nearest office of the Legal Aid Committee, and upon receiving such information the Legal Aid Committee has to take immediate steps for providing legal aid to the arrestee at the State cost, so as to fulfil the requirements of Section 304 of the Code. These safeguards have been provided because of constitutional mandateenshrined in Article 22 of the Constitution and Section 303 of the Code as the accused has a right to engage a counsel of his choice. Thus, no sooner arrest is effected, the arrestee becomes entitled to the benefit of Sub-clause (1) of Article 22 of the Constitution and Section 308 of the Code and aforesaid requirements enunciated in Sheela Barse's case (supra) and Joginder Kumar's case (1994 Cri LJ 1981 (SC)) (supra) in view of constitutional mandates of Article 22 of the Constitution and Section 50 of the Code must be observed.
22. Thus, by introducing Section 50 in the Code the Legislature has taken care of the principle that innocent person cannot be put to harassment unnecessarily without assigning any ground of arrest. Hence, this provision of Section 50 of the Code is material one which brings the provisions of the Code in conformity with the provisions of Article 22 of the Constitution of India, enabling the arrestee to move for his release, and thus it confers a valuable right. Accordingly, non-observance of this provision infringes valuable fundamental rights guaranteed to him under Chapter III of the Constitution making his detention unconstitutional, illegal, unjust and unfair, therefore, in the opinion of this Court, noncompliance of mandatory provisions of Section 50 of the Code amounts to non-compliance of the procedures established by law rendering the arrest and detention of the person concerned illegal.
23. The provisions of Section 57 of the Code are also analogous to the provisions of Article 22 of the Constitution as the person arrested is not to be detained for more than 24 hours. Immediately after the arrest, the arrestee is to be produced before a Magistrate under Section 167 of the Code. Thus at this stage, a duty cast upon the Magistrate is to verify the fact in respect of disclosure of grounds for arrest as required by Section 50 of the Code. Besides other grounds, if non-compliance of Section 50 of the Code appears to be convincing to the Magistrate, at that stage itself, this may be an additional ground for releasing the accused on bail.
24. The provisions of section 88 of the Code empower the Court to take bond for appearance. Giving reference of this provision, it is contended that under this provision a person who appears before the Court can be released on his personal bond. However, this provision will have no application to the facts of the present case as it applies only to a person who is present in the Court as witness etc. If a person appears in the Court for the purpose of bail in accordance with the provisions of Section 437(1) of the Code and surrenders, hen he becomes an accused and this provision does not apply to an accused. (See Madhu Limaye and Anr. v. Ved Murti and Ors. AIR 1971 SC 2481).
25. The provisions of Section 154 of the Code are also relevant his Section contemplates lodging of the First Information Report. The words 'First Information Report' are not mentioned in the Code, but these words are understood to mean, first information recorded under Section 154 of the Code where cognizable offence is committed and full particulars of the incident are lodged giving specific names of the accused if known to the informant or in any manner showing complicity of the accused in the crime. This information under Section 154 of the Code or any other reliable information which police agency believes to go in respect of commission, of offence gives rise to the police machinery to come into motion and proceed with the investigation.
26. In this context, the provisions of Section 157 of the Code are also relevant, which deal with the procedure for investigation. Consequent upon lodging of the F.I.R,, pursuant to the investigation, if complicity of the accused in the crime is found, it always depends upon the wisdom of the Investigating Officer to arrive at a conclusion regarding necessity of arrest considering the gravity of the offence. According to this provision, it is not imperative that in each and every cognizable offence, the accused must be arrested merely because F.I.R. is lodged against him. The Legislature has taken sufficient care by putting the words :
'If necessary to take measure for discovery and arrest of the offender' in Section 157 of the Code. Meaning thereby, if arrest is 'necessary', it is only then that the same may be effected. The clauses (a), (b) of the proviso to Section 157 are also important in as much as the police officer in charge of the Police Station, if comes to the conclusion that there is no sufficient ground for entering on an investigation, he shall not proceed to investigate the allegations made in the first information report, and in such a situation, under Sub-clause (2) of Section 157 of the Code, he shall inform accordingly to the informant. Thus, provision of Section 157 of the Code gives discretion to the Investigating Officer to arrest the accused if necessary.
27. This aspect of the matter has also been taken into consideration in King Empower v. Khwaza Nazir (1995 P.C. 18), R.P. Kapoor v. State of Punjab , S.N. Sharma v. Bipin Kumar Tiwari and Sohan Singh v. Delhi Administration wherein their Lordships have held that this proposition is not only based on sound logic but is also based on fundamental principles of justice as a person against whom no offence is disclosed cannot be put to any harassment by the process of investigation which is likely to put his personal liberty and also property which are considered sacred & sacrosanct, into peril and jeopardy, and in such cases where cognizable offence is not disclosed in the first information report prima facie and notwithstanding that in pursuance to the investigation of the alleged crime accused is likely to be arrested or arrested in such cases Courts do not lag behind to quash the first information report holding that the police has no jurisdiction to investigate into the offence.
28. Thus, in view of the foregoing discussions pertaining to the scope of Section 157 of the Code, it is not that in each and every cognizable matter merely by virtue of the first information report, police agency has been given a blank-chit to arrest the accused persons, rather the Legislature has taken care of considering all connected aspects apprehending that if blanket power is given, the same may be misused by the police agency, and that is why statutory restriction has been imposed under Section 157 of the Code, and the arrest is made discretionary. Besides this while exercising this discretion of arrest, it is expected of the police officer to take a realistic approach. Probably for this reason, in the Third Report of National Police Commission, at page 32, which has been referred to in para 20 of the Joginder Kumar's case (1994 Cri. LJ 1981) (SC) (supra) it has been suggested :
"Arrest during investigation of a cognizable offence may be considered justified in one or other of the following circumstances.
(a) case involved grave offence like murder; dacoity, robbery, rape etc. and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among terror stricken victim;
(b) accused is likely to abscond and evade process of law :
(c) accused is given to violent behaviour and is likely to commit further offence unless his movements are brought under restraint; and
(d) accused is a habitual offender and unless kept under custody he is likely to commit similar offences again."
29. Thus, considering the words if necessary to take measure for discovery and arrest of the offender reasons for making the arrest are required to be mentioned in the case diary. That is why in Joginder Kumar's case (1994 Cri. LJ 1981) (SC) (supra), Government is directed to issue departmental instructions in this regard to all the police officers. However, this word 'necessary' denotes to record in writing as to how the necessity for arrest is arrived at, and thus in the opinion of this Court since the Legislature itself has taken care hence while effecting the arrest recording of reasons therefore is implicit in the word 'necessary' and the Police Officer is duty bound to state the reasons in the case diary if the stage of arrest arrives at, so that if arrest is effected, the provisions of Section 50 of the Code are also complied with as discussed above, and the accused may make proper arrangements for getting legal aid of his counsel. In Nandini Satpathi's case (1978) 2 SCC 434 : 1978 Cri. LJ 968 it is ruled that the accused is entitled to engage his counsel during interrogation so as to avoid torture or beating in the lock-up which is generally carried on behind closed doors and no member of the public is permitted to be there.
30. Similarly the provisions of Section 167 as appearing in the amended form in the Code are also important. It deals with the procedure when investigation cannot be completed in twenty-four hours, Sub-section (2) of Section 167 of the Code and its proviso (a), gives indefeasible right to the accused to be enlarged on bail if the police fails to conclude the investigation and submit the challan as required under Section 173 of the Code within the stipulated period of 60 or 90 days as the case may be mentioned in this provision. As discussed above, it also gives jurisdiction to the Magistrate to enquire about the compliance of Section 50 of the Code, so that in the event of reaching at the conclusion that the provisions of Section 50 are not complied with, necessary benefit for non-compliancy may be extended to the accused person.
31. The provisions of Section 169 of the Code are also emphatic. According to this provision, if there is no sufficient evidence or reasonable ground for suspicion to justify forwarding of the accused to a Magistrate, suspect may be released on bond executed by him. Thus, this provision also gives ample discretion to the Investigating Officer to proceed with the case and in the event of reaching at the conclusion that no case is made out against the accused to release him forthwith.
32. The provisions of Section 303 of the Code are also relevant, which confers on the accused a right to be defended by a pleader of his choice.
33. The provisions of Section 309 of the Code are also relevant in the context that if enquiry is not concluded expeditiously, the Code empowers the Magistrate to postpone or adjourn the proceedings. This provision confers power to postpone or adjourn the proceedings. Sub-clause (2) of Section 309, empowers the Magistrate to postpone or adjourn the proceedings on such terms and conditions as it thinks fit. Thus, under this provision proceedings can be postponed if enquiry in respect of grant of bail is not concluded expeditiously on the ground of lapses on the part of prosecution, and appropriate orders may be passed by the Court in terms of clause (2) of Section 309 of the Code.
34. Section 437 of the Code deals with bail in non-bailable offences. Sub-section (1) of Section 437 provides that any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by any officer in charge of 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, certain riders have been put to the effect that such person shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life, and further such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or the accused had been previously convicted on two or more occasions of a non-bailable and cognizable offence.
35. Thus, the provisions of Sub-section (1) of Section 437, are controlled by three proviso added to it and these provisos are very significant. Under the first proviso, the Court may direct that accused referred to in clause (i) or clause (ii) of Section 437(1) be released on bail if such accused is under the age of 16 years of is a woman or is sick or infirm.
36. Under the second proviso to Section 437(1), the Court may also direct for release on bail if it is just and proper so to do for any other special reason.
37. The third proviso to Section 437(1) makes it clear that in pursuance of investigation if identification of the accused has not been completed that itself will not be a sufficient ground for refusing bail if the accused 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.
38. Thus, in the light of above referred three provisos of Section 437(1) of the Code, it has to be examined as up to which extent they empower the Magistrate to release accused on bail same day on failure to conclude hearing of his bail application on the same day. It is clear from clause (i) of Section 437(1) that when an accused is brought before the Magistrate with the allegations of offence punishable with death or imprisonment for life, he shall not be released on bail.
39. Similarly, it is clear from clause (ii) of Section 437(1) that if the offence is cognizable and the accused has been previously convicted of the offence punishable with death or imprisonment for life or imprisonment for seven years or more or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence, the Magistrate has ordinarily no option but to refuse bail subject to, however, the first proviso.
40. Thus, the words used in Sub-clause (1) of Section 437 of the Code are of very wide amplitude inasmuch as where the accused appears or is brought before the Court he will be released on bail, meaning thereby and as argued by the learned counsel appearing for the petitioner and amicus curiae giving much emphasis on the word ' appears', that when accused appears as per direction of this Court, Sub-clause (1) of Section 437 gives jurisdiction to the Court concerned to consider his bail application on the same day,
41. In this context, it is necessary to refer the provisions of Sections 437 & 438 of the Code. Before the repeal of Section 438, a person apprehending his arrest in the case of non-bailable offence could apply for his bail commonly known as anticipatory bail, but after repeal of section 438 in the State of U.P. even under Section 437 of the Code by virtue of its Sub-clause (1) indeed the accused person can appear before the Court offering himself in the custody of the Court amounting to 'arrest' for being released on bail on such terms and conditions as may be imposed by the Court.
42. After considering the relevant provisions of the Code referred to above by which the investigating agency or the Magistrate are empowered to release the accused on bail, it has to be seen whether these provisions explicitly or in any manner indicate that if consideration of bail application is not possible on the same day and in the event of adjournment of the case can the applicant be released on bail or on personal bond same day.
43. From the relevant provisions referred to and discussed above, it does not bear out that if enquiry is not possible same day, the accused be released the same day on bail. Thus in view of the discussions made above, in our opinion , the Code does not envisage disposal of the bail application same day and in that situation to release the accused on personal bond except Sub-clause (2) of Section 437 where the Magistrate if comes to the conclusion that charges levelled against the accused do not make out any non-bailable offence only in that event the accused certainly can be released on bail but that too after ascertaining and hearing the prosecution subject to availability of the record. As discussed above, the provisions of Section 437(1) & (2) of the Code are stringent provisions. The well settled principle of interpretation of Statute cannot be lost sight of that wherever a statute contains stringent provisions, it must be literally and strictly construed so as to promote the object of the statute. (See Madan Mohan vs. Kalavakunta Chandra Sekhra ).
44. Apart from above, learned counsel for the petitioners and learned counsel appearing as amicus curiae made much emphasis giving reference of Articles 21 and 22 of the Constitution and contended that despite the fact that under the Code there is no express provision to this effect that the bail application is to be considered same day, yet in view of the provisions of Article 21 of the Constitution, the Court is not lagging behind to release the applicant on bail same day if it is not possible to conclude enquiry on the same day. Developing further this argument, it is submitted that Articles 14, 21 and 22 appearing in Part III. of the Constitution of India confer fundamental rights though couched in negative language are relevant for consideration of the issue involved in this case. Reference of Add!. District Magistrate v. S. S. Shukla was given, wherein it has been ruled that most categories of fundamental rights are in negative as well as positive language. Thus, it is obvious that Article 21 though couched in negative language yet confers its fundamental rights to life and personal liberty.
45. In this regard, it is further argued that considering scope of Article 21 of the Constitution it is clear that fundamental right has texture of basic human rights. Reference of A.K. Gopalan's case , Maneka Gandhi v. Union of India , Kharag Singh v. State of U.P. was also given wherein the Apex Court observed that it is obvious that Article 21 though couched in negative language confers fundamental right to life and personal liberty in as much as no one shall be deprived of his personal liberty except by the procedure established by law.
46. Sri Rakesh Dwivedi, learned Additional Advocate General, Uttar Pradesh contended that except the cases falling within the purview of Sub-clause (2) of Section 437 of the Code, ,in the cases of heinous offences it cannot be possible for investigating agency to collect all relevant materials within twenty-four hours, such as in the cases punishable under Section 302 I.P.C.. postmortem and other expert reports are required to be collected which naturally take its own time. Similar is the position in other serious offences. Therefore, release on interim bail, of such accused under the directions of this Court in exercise of powers conferred by Article 226 of the Constitution, merely on account of non-availability of relevant material before the subordinate Court concerned, would have serious repercussions resulting into destruction of relevant evidence, obstruction in collection of evidence, pressurisation of witnesses and even loss of life of innocent witnesses in the hands of such accused persons, pending consideration of the bail application. Particularly in this State where crime graph in comparison to other States is too high, possibility of any eventuality cannot be ruled out.
47. Besides this he further contended that none of the provisions of the Code empower the Courts below to release the accused on the same day in the event of failure to dispose of the bail application that day. Sri Dwivedi strongly contended that the aid of Article 21 of the Constitution is available only to those accused who have been either arrested by the police or have voluntarily surrendered or have been produced before the Court but it is not available to those accused who have evaded the arrest. Both types of accused stand on different footings but the accused who has evaded the arrest somehow or the other by any stretch of i magination cannot be deemed to be on better footings. The mandate enshrined under Article 21 of the Constitution does not confer special guarantee to the accused who evades the arrest so as to give such accused preferential treatment as compared to other accused who have voluntarily surrendered or have been arrested or have been produced before the Court.
48. Sri Dwivedi further contended that such preferential treatment is violative of Article 14 of the Constitution of India. Moreover, while enacting the provisions of the Code of Criminal Procedure, the Legislature has taken care of all possible eventualities, and had there been any intention to grant preferential treatment to such accused who evade arrest, certainly the Legislature would have enacted provisions for the same, specially while repealing the provisions of Section 438 of the Code, Therefore, directions to release the accused who evaded the arrest, on interim bail in the event of a non-availability of relevant material before the Court is contrary to the will of Legislature, spirit of Article 14 and idea behind Article 21 of the Constitution.
49. In this respect we may point out that the principle of equality envisaged under Article 14 of the Constitution does not mean that the law must have universal application to all persons who are not in the same position by Nature or attainment or circumstances and the varying needs of different classes of persons often require separate treatment. If law deals equally with all members of a well defined class it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Article 14 confers equal treatment to similarly circumscribed persons belonging to one and the same class. A person who is confined in the jail and the person who is outside jail or in other words, a person whose personal liberty has been jeopardised and the person whose personal liberty is likely to be jeopardised, both certainly cannot be put in one strait jacket. Therefore, the arguments advanced by Sri Dwivedi are not acceptable. If his arguments are accepted then certainly the classes A, B & C in jails will also be hit by Article 14 of the Constitution but this issue has been thrashed out by the apex Court and it has been held that the classification in jails is not discriminatory.
50. Sri Dwivedi specifically submitted that the powers conferred are to be exercised in accordance with the procedure established by law, therefore, in the absence of specific provision in the Code for the purpose interim bail cannot be granted.
51. In this regard it is sufficient to say that the provision for grant of interim bail is implicit in the main provision which speaks of bail and that is why interim bails have been granted by the apex Court. Not only in the bail matters but also in maintenance and other matters on the same analogy, interim reliefs have been granted (see S.M.D. Kiran Pasha v. Government of Andhra Pradesh , Ghanshyam Das Jai v. State of U.P. , Mst. Tahira Begum v. B.B. Gujral , Miss Harsh Sawhney v. Union Territory (Chandigarh) (1978 Crl. LJ 774) (SC).
52. Thus, in view of well settled legal position any order or direction made by the Apex Court in aforesaid cases has got a binding effect on all Courts within the territory of India. (See Baver India Limited and Ors. v. State of Maharashtra, ).
53. As regards the argument based on Article 21 of Constitution, it may be stated that the object of Article 21 of the Constitution is to prevent encroachment in the personal liberty of citizen by Executive save in accordance with law and in conformity with the provisions thereof. Before a person is deprived of his personal liberty by executive save in accordance with law and in conformity with the provisions thereof and in accordance with the procedure established by law, the provisions of law must be strictly followed and must not be deviated from to the disadvantage of the person affected. The right to live with human dignity is a fundamental right of every citizen for pursuit of happiness and excellence. As discussed above, the provisions of section 157 read with Section 169 of the Code, envisage that in pursuance of F.I.R. in all cognizable offences, the arrest is not a must but it always depends upon the facts and circumstances of each case coupled with the sharp wisdom of the investigating officer so that he may be able to shift the grain from the chaff then and there eliminating harassment of innocent persons.
54. We may observe at this stage that Article 21 is indeed available where the action is not taken in accordance with the procedure established by law. In Maneka Gandhi's case (supra), apex Court while dealing with this subject "ruled that personal liberty includes variety of rights. Further in Kartar Singh v. State of Punjab apex Court observed that libverty cannot stand alone but must be paired with a companion virtue, liberty and morality, liberty and law, liberty and justice, liberty and common good, liberty and responsibility which are concomitants for orderly progress and social stability.
55. Right to speedy trial by taking aid of Article 21 of the Constitution covers all the stages of investigation including trial, enquiry and remand etc. and the Courts of law are expected to dispose of not only the trial but the bail applications as well expeditiously. However, this all depends upon the availability of material collected and placed before the Court at the time of considering the bail application. If there is a right, specially fundamental right guaranteed under the Constitution of India, there must be remedy for the same. Thus the submission made by learned counsel for the respondents that there is no provision under the Code, therefore, by taking aid of Article 21, in exercise of jurisdiction under Article 226 of the Constitution, no direction for consideration of bail application can be issued, has no force. Constitution of India is mother of laws. The law declared by the apex Court is also the law of land, therefore, for the enforcement of the mandate enshrined in Part III of the Constitution, direction can be issued in exercise of powers under Article 226 of the Constitution of India, irrespective of the fact that there is no provision to that effect in the Code.
56. No doubt, confinement to jail for indefinite period refusing bail for want of relevant material supply of which in the Court is mandatory for the investigating agency amounts to punishment and is contrary to the philosophy of criminal jurisprudence. According to the criminal jurisprudence, undertrials are supposed to be innocent till the guilt is established beyond all reasonable doubts. Therefore, suspects cannot be kept behind the bars for indefinite period, save in exceptional cases where the acquisition of charge is of serious nature and in the event of release on bail, there remains possibility of absconding and tampering with the prosecution witnesses by the accused.
57. Here we may point out that the bail is not merely a procedural right but is also a substantive right involving liberty of the person, therefore, it is expected of the Courts to dispose of bail petitions without any loss of time and when entire material is placed by the prosecution before the Court, the bail application must be disposed of on the same day by giving priority to it.
58. In this respect we may further observe that right of personal liberty originates not only from the provisions of law but it is inherent and flows from very existence of human being and, therefore, same cannot be taken away unless there is procedure of law for doing so and that too acting within the bounds of law.
59. Much have been argued by giving reference of Article 21 of the Constitution particularly referring the clause procedure established by law. Here the word 'law' refers to the law, not only enacted by the Legislature but also to the law declared by the apex Court within the meaning of Article 141 of the Constitution.
60. Without discussing much on the subject to avoid bulk of the judgment, we may observe that provisions of Article 226 of the Constitution give widest powers to the High Court to issue directions commanding the authorities to comply with the rights conferred by the Constitution. In this respect, not only the dictum laid down in Maneka Gandhi's case (supra) but also in Unnikrishnan J.P. and Ors. v. State of Andhra Pradesh, (1993 (1) J.T. 474 : (AIR 1993 SC 2178) and Olga Tellis and Ors. v. Bombay Municipal Corporation (AIR 1986 SC 180) (sic) Sunil Batra v. Delhi Administration and Ors. (1978) 4 SCC 494 : (1978 Cri. LJ 1741) cannot be lost sight of.
61. Considering the dictum laid down in above mentioned "cases it is clear that right to speedy trial includes the right to get bail application decided expeditiously and if possible the same day. The right to human treatment, as discussed in Sunil Batra's ease (1978 Cri LJ 1741) (supra) also cannot be lost sight of, Thus Article 21 of the Constitution mandates to the effect mentioned above. Even then if some difficulty arises, same can easily be resolved by adhering to the provisions of chapter XXXIII of the Code along with the provisions of Part III of the Constitution of India which deals with fundamental rights.
62. However, the argument of Sri Dwivedi, that it does not spell out from the provisions of the Code that the bail application is to be decided same day, has already been dealt with and it has been observed that the directions are issued under Article 226 of the Constitution to act in accordance with the provisions of Section 437 of the Code and in the event of any procedural difficulty the Courts may take recourse of external aid so as to discover the object of Legislature and the principle of modern statutory constitution as enunciated by the apex Court in the cases mentioned above, therefore, the provisions falling under Chapter XXXIII of the Code are to be read in this context considering their object.
63. In Union Carbide Corporation v. Union of India (AIR 1992 SC 246) and M.V. Elizabeth v. Harwan Investments Trading Co, Goa (AIR 1993 SC 1014), considering the scope of Article 21 of the Constitution and exercising wide powers for dispensing sovereign justice, necessary orders were passed by the apex Court. Learned counsel for petitioners, with reference to above two cases contended that similar orders can also be passed by the High Court exercising powers under Article 226 of the Constitution. Learned counsel for respondents, Sri Dwivedi, contended that the apex Court is vested with unfetterred powers and can pass any order with a view to do complete justice between the parties, but High Court is not vested with similar powers, therefore, High Court cannot pass similar orders under Article 226 of the Constitution. Learned counsel for petitioners contended that in this regard the language used in Sub-clause (1) of Article 226 of Constitution cannot be lost sight of. This clause is couched in a very comprehensive language and confers wide powers on the High Court for enforcement of any right conferred by Part III of the Constitution and for any other purpose. The words 'any other purpose' used under clause (1) of Article 226 of the Constitution have got significant meaning and are analogous to the words ' for doing complete justice' used in Article 142 of the Conslitution. Thus learned counsel for the petitioners urged that High Court should not lag behind in passing any reasonable order in conformity with the provisions of law for any other purpose covering Chapter XXXIII of the Code which deals about the bail.
64. For this purpose while construing any provision, the statement, object and reasons of the same be considered ignoring the mechanical approach. (See B. Prabhakar Rao v. Slate of Andhra Pradesh (AIR 1986 SC 210), State of Himachal Pradesh v. K.C. Mahajan (1992 (2) SCC (Supp) 351 : (AIR 1992 SC 1277) and Administrator Municipal Corporation Bilaspur v. Dattatraya Dhankar and Ors. (A.l.R. 1992 SC 1846). Thus in our opinion, if entire material collected against the accused or even sufficient material is available so as to adjudicate upon the bail application on the same day, then the Courts are expected to dispose of bail application expeditiously, if not impossible, the same day and this discretion is to be applied by the concerning Courts. To this effect there is no difficulty.
65. Thus considering total scheme of Chapter XII of the Code, pursuant to the F.I.R. or any relevant information, the police can investigate the i| crime and arrest the accused persons if necessary and as far as releasing accused person on bail is concerned, the procedure is prescribed and if the police machinery proceeds in accordance with the law established by the Court, certainly there will be no infringement of Article 21 of the Constitution.
66. There fore where under the garb of procedure prescribed by the Act action taken gives obnoxious smell, immediately mandate issued under Article 21 comes to rescue and the action of the prosecution becomes contrary to the provisions of Article 21 and it will be not only arbitrary, unreasonable and unfair but also be oppressive and that is what has been laid down in Maneka Gandhi's case (AIR 1978 SC 597) (supra). Hence it is not that the Chapter XII of the Code gives unfetterred licence to the police agency to arrest the accused pursuant to the F.I.R. in all cognizable cases, otherwise the mandate issued under Section 157 of the Code by putting the word 'necessary' would become redundant and that is why number of checks have been imposed not only , under the Constitution of India but under the Code itself .and that is why new provision of Section 50 of the Code has also been incorporated in the Code.
67. In Hussaina Khatoon v. Home Secretary Bihar (1980) 1 SCC 81 :(1979Cri LJ 1036) construing the provisions of Article 21 of the Constitution their Lordships of apex Court have ruled that no procedure which does not ensure reasonable, quick and fair trial can be regarded as fair or just and it will fall foul of Article 21 of the Constitution. There can be, therefore, no doubt that speedy trial meaning thereby reasonably expeditious trial is integral part of life and personal liberty enshrined under Article 21 of the Constitution. Therefore the question which would arise is as to what would be the consequence if an accused is denied speedy trial and is sought to be deprived of his liberty by long delayed trial in violation of his fundamental rights under Article 21 of the Constitution and would be entitled to be released unconditionally. Subilbatra's case (supra) (Sic), II decision in Hussainara Khatoon's case (1980) 1 SCC 98 : (1979 Cri. LJ 1045) III decision in Hussainara Khatoon's case (1980) 1 SCC 115: (1979 Cri. LJ 1134) and Kadra Pahadiya v. State of Bihar (1983) 2 SCC 104) are the relevant cases wherein apex Court emphasised time and again for the speedy trial which is one of the fundamental rights to life and liberty enshrined under Article 21 of the Constitution. Law must ensure reasonable, just and fair procedure.
68. Here we may also point out that framers of our Constitution were men of wisdom and had suffered loss of liberty under the colonial rule and after independence, Constituent Assembly was formed wherein discussions took place for years together amongst eminent personalities and present Constitution of India is the outcome of the same. Having suffered loss of liberty in the hands of cruel Britishers when those eminent personalities stood to frame the Constitution, it was fully thrashed out and resolved that fundamental rights of life and personal liberty must be conferred on the citizen and that is why while giving fundamental rights under Part III of the Constitution, taking into consideration the Constitution of Japan & America, important Articles have been mentioned in our Constitution including Articles 21 and 22 which are relevant for this case. As discussed above, no doubt, Article 21 is in negative form but its interpretation given by the apex Court, where personal liberty has been, construed to be the right to live with human dignity which is at the highest pedestal cannot be lost sight of. In G. Nasirulla v. Public Prosecutor Andhra Pradesh (AIR 1978 SC 429) it has been ruled that Article 21 makes deprivation of liberty a matter of grave concern and permissible only when the law authorises to do so. Thus Article 21 is not only available to the citizens but to non-citizen as well.
69. The recent two decisions in Unnikrishnan"s case (AIR 1993 SC 2178) (supra) and Joginder Kumar's case (supra), are eye openers in this regard. In former case, the word 'life' occurred in Article 21 has been interpreted and the same has been construed to be a life of dignity as a civilised human being and not just animal survival. In the later case, (vide para 20 of the judgment) it is ruled that no arrest can be made because it is lawful for the police officer to do so. The existence of power to arrest is one thing but justification for exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. The arrest and detention of particular person may cause incalculable harm to the reputation and self-esteem of a person.
70. Therefore, it would be prudent for a police officer in the interest of citizen's liberty and even in his own interest that no person be arrested without a reasonable satisfaction arrived at after some investigation as to the genuineness and bona fide of the complaint under a reasonable belief, both as to persons complicity and necessity to arrest. Denying a person of his personal liberty is a serious matter. Those decisions rendered by the apex Court in respect of personal liberty are not only the sermons but are delivered for being translated into action.
71. In this respect, we may further observe that these days it is being seen that political parties are not in a position to provide stable popular governments for the full term of five years, with the result the vested interests often misuse police powers to subserve their own purposes for personal vendetta and the police officials under pressure of vested interests deliberately rope their rival groups for oblique motives.
72. Therefore, considering the needs of the day, where ex facie illegal arrest is made without any rhyme or reason and in total abuse of the power, Courts are not lagging behind in awarding suitable monetary compensation and exemplary costs to the ultimate sufferers, as in such situations Courts are not supposed to remain silent spectators. In Bhim Singh v. State of J & K (1985) 4 SCC 677), the apex Court ruled that where it is shown that the petitioner was arrested and imprisoned with mischievous and malicious intent the Court shall have the power to compensate the sufferers by awarding suitable monetary compensation and exemplary costs. Thus, not only the person concerned of the police department if found guilty of jeopardising personal liberty of a citizen under the garb of Chapter XII of the Code be saddled with damages; but on the principle of vicarious liability, the State too be made responsible for having no check and control over such erring officers, holding both of them jointly and severally liable for paying compensation. Also see Smt. Nilabati Behera alias Lalita Behera v. State of Orissa and Ors. J.T. 1993 (2) SC 503 : (1993 Cri LJ 2899).
73. The submission made by Sri Dwivedi that no law can be innovated by the Court and the Court cannot usurp legislative powers of the State, might have had some force few decades back, but with the change in society if the law is not changed by enactments in accordance with the needs of the society, certainly this uphill task is to be taken by the Courts and the law Courts do not lag behind for want of power; authority or jurisdiction to declare the law, to apply the law and to give binding and authoritative decisions and to carry it out into effect.
74. In the historical case of Keshvanand Bharti (AIR 1973 SC 146), Justice Matthew observed that judicial function is like legislative, both creative and application of law. The judicial function is ordinarily determined by the general norms in both as to procedure and as to contents.
75. Thus, since the scope of life and personal liberty has been expanded and put at the highest pedestal by the apex Court vide judicial pronouncements referred to above by virtue of which personal liberty means to live with human dignity and in view of the settled legal position that the moment person is arrested and sent behind the bars his dignity is affected, hence in this context considering the widest amplitude of Article 21 of the Constitution, there is no difficulty in holding that with a view to preserve human dignity ingrained under Article 21, the bail petition may be considered the same day in suitable cases where sufficient material is made available to the Court by the prosecution.
76. Here we may observe that the law in respect of scope of Article 21 of the Constitution as developed by the Apex Court, may be applied in such cases where dignity of the citizen is at stake. Indeed, in appropriate cases, while considering bail applications under Section 437 of the Code, taking into account the attending circumstances narrated in the bail application and subject to availability of police papers to the satisfaction of the court, after hearing the prosecution and accused, if the Court is satisfied with the case, it may at its wisdom, pass necessary orders same day, or in the event of adjournment, in rarest of rare cases in extreme circumstances illustrations of which cannot be formulated may, after only recording cogent reasons therefor, grant interim bail to meet the ends of justice. This reasoning ' is also supported by the following cases where apex Court has also granted interim bail. See S.M.D. Kiran Pasha's case (1989) 4 JT 366 Ghanshyam Das Jai's case (1982) 3 SCC 389 (supra). Otherwise, the provisions of Article 21 of the Constitution and concerned provisions of the Code would become lifeless, absurd, srtultilying self defeating, jettisoned and a decorative piece of the Statute Book.
77. However, as directed in Dr. Hidayat Hussain Khan's case 1992 Cri LJ 3534 (supra), fixed time schedule for considering bail application cannot/be directed by this Court and maintaining judicial discipline & comity this Court is bound under Article 141 of the Constitution to respect and obey the pronouncement of the apex Court as the law declared by the apex Court is also the law of the land and it operates as judgment in rem, consequently the ratio laid down by the apex Court in Abdul Rehman Antulay etc. etc. v. R.S. Nayak and Anr. etc. etc. (AIR 1992 SC 1701) (vide para 51 of the judgment that 'time schedule for concluding criminal proceedings cannot be fixed ' is binding on us.
78. Therefore, notwithstanding the fact that 'speedy trial covered under Article 21 of the Constitution includes 'speedy disposal of bail application as well' we are of the considered opinion that in exercise of powers under Article 226 of the Constitution, while issuing direction and command to the Magistrate or the Court of Sessions as the case may be, to consider the bail application, time schedule for concluding bail proceedings cannot be fixed. This is our answer to the question referred to us.
79. Accordingly, the view taken in Dr. Hidayat Hussain Khan's case 1992 Cri. LJ 3534 (supra), to the extent it fixes outer limit for disposal of the bail application same day and directs for releasing the applicant on bail in the event of falilure to dispose of bail application the same day, stands overruled and the view taken in Noor Mohammad's case (supra) to the extent it is in conformity with the conclusion arrived at by us above is confirmed.
80. However, in view of latest pronouncement of apex Court in Karta Singh case (1994) 3 SCC 569 (supra), this Court itself, in exercise of jurisdiction under Article 226 of the Constitution, in rarest of rare cases in extreme situation where it ex facie finds that the proceedings initiated against the accused persons by the police agency amount to abuse of process of the Chapter XII of the Code, may in its discretion, consider to grant, bail.
81. In view of foregoing discussions, we direct that all the three petitions be placed before the appropriate Bench for disposal in the light of conclusions arrived at by this Full Bench.
82. Before parting with the case, we bring on record few words of appreciation to Sarvsri A.D. Giri, former Solicitor General of India and serior advocate of this Court, Rakesh Dwivedi, Additional Advocate General U.P. Tapan Ghosh, R.K. Jain, J.S. Sengar, D. S. Misra, and G.S. Chaturvedi, learned senior counsel of this Court. They all, by their ingenious arguments extended very valuable assistance to this Full Bench.
83. (Delivered by Hon. Kundan Singh, J.) I have had the privilege of reading the erudite views of esteemed brothers Hon. B.M.Lal and Hon. Palok Basu, JJ. on the points referred to our Full Bench. I do not want to enter into the facts of the writ petitions referred to us as they have been mentioned in the judgments of brother Hon. Lal and Hon. Basu, JJ.
84. I squarely agree with the view expressed by Hon. Palok Basu, J. but with profound respect want to add my view also.
85. During the arguments learned counsel for the petitiners, amicus curiae and the learned counsel appointed on behalf of the Bar Association emphasized on the fundamental right of the individual regarding life and personal liberty enshrined in Articles 21 and 22 of the Constitution of India and Sections 57, 167(1) and other provisions of the Code of Criminal Procedure on the assumption that Articles 226 and 227 of the Constitution fully empower High Court to issue mandamus directing the Courts below to consider and dispose of the bail applications on the same day when the accused surrender before the Magistrate. The contention of the learned counsel was that the normal practice in the Courts below is that when an accused surrenders before the Magistrate and moves for bail, the bail application is put up for hearing after three days. When the bail is refused by the Magistrate, the accused/suspect has to move application for bail before the Sessions Judge and that application conies up for hearing after about a week as notice is given to the State. In this way the accused has to remain in Jail for at least ten days and then his application is taken up for hearing and for that reason the accused has to face great inconvenience and harassment even in the case in which bail is ultimately granted by the Session Court or is likely to be enlarged on bail. As such the fundamental right of the personal liberty is curtailed and the accused is deprived of his personal liberty for no fault of his. The personal liberty includes reputation, dignity and honour of the individual, which can be saved and maintained if the Courts below are directed to hear and dispose of the bail application on the same day and in case the application is not possibly heard and disposed of on the same day, then the accused be released on interim bail till the disposal of his bail application particularly when there would be no harm or prejudice to the prosecution or any other person.
86. There are two sides of a coin. The first is the concept of personal liberty of an individual from an illegal or arbitrary arrest by the police or by some administrative act and the order is of protection of interest of the Society at large from terrorism and atrocities of the large and extensive activities of the criminals. The function of the Court is to place the needle of the scale at a right place so that the personal liberty of an individual can be maintained and the Society can be saved from extensive tendency of crime. Shri H.V. Kamath stated in the Constituent Assembly of India :
"No man can have absolute personal liberty if he wants to live within the social framework. If a man leaves the world and becomes an absolute sanyasi, not in the customary sense of the term but in the truest sense, the case is different. If any man has to live in society, his personal liberty must be restrained. Liberty without restraint will become license. The eternal problem of Government all over the world has been how to reconcile the liberty of the individual in society with the safety and security of the State, and thinkers have widely differed on this point. Some have tried to exalt the State above the individual making it a leviathan, making it a veritable supreme power, which can crush the individual without any compunction. There have been other thinkers who have sought to lay down the dictum that the State is for the individual, and not the individual for State. We will have to strike a balance between these two : the individual for the state and the State for the individual. We should bear in mind that the Stale has been formed, has been brought into being by individuals acting together, acting in unison, and we must provide that the State will not unjustly, unfairly over ride the claims of the individual to justice and liberty."
87. On the one hand if the social need that crime should be repressed, on the other is the social need that law is not flouted but is obeyed. The interest of the society or that of nation must prevail over the individual's rights. Under the provisions of the Article 21 the right of the individual conferred through fundamental rights which include right to live and right to personal liberty is always subject to exceptional procedure extablished by law. Under the provision of Article 22(1) of the Constitution every person who is arrested shall have to be disclosed grounds of his arrest as soon as may be. The arrestce has been given right to consult and be defended by a legal practitioner of his choice. Dr. B.R. Ambedkar has very aptly explained this while he was replying to one of the questions in the Constituent Assembly in the followings words :
"Our intention is that the words 'as soon as possible' really mean immediately after arrest if not before arrest."
The aforesaid observations have been followed by Hon'ble Supreme Court in a series of decisions and it is no more in dispute that the arrestee has to be told the grounds of arrest immediately after he has been put under arrest.
88. Simultaneously with the aforesaid provision in the Constitution there are other Sections in the Cr. P.C. where an arrest may be affected because of warrant executed by Courts outside the territorial jurisdiction where the proposed arrestee lives. In such cases and some other cases also the provisions contained in Section 88 of the Cr. P.C. may apply.
89. Therefore, if a comparative study of these provisions is made, it will be apparent that disclosure of grounds of arrest where a police officer exercises power under Section 41 Cr. P.C. has got to be disclosed to him in view of the mandatory provisions contained in Section 50 Cr. P.C. It further follows that grounds of arrest while issuing a warrant of arrest to some other Court cannot be disclosed unless the arrestee is taken to the Court issuing the said warrant. However, in cases where Sections 41 and 50 Cr. P.C. apply it will be a pure question of fact as to whether the grounds of arrest were disclosed to the arrestee or not. The allegation if made to the effect that grounds of arrest were not disclosed can well be negatived by the Police Officer if the arrestee has torn into pieces the recovery memo or thrown it away or damaged the same or managed its disappearance. Such reasons shall have to be incorporated in the case-diary or general diary as the case may be.
90. Though not very relevant for the present discussion yet it may be mentioned that in a given matter an arrestee can if he is put under trial, make a statement under Section 313 Cr. P.C. to the effect that the arrest was illegal because of the non-supply of grounds.
91. Enough safeguards exist in the provisions contained in Article 22(2) of the Constitution read with Section 57 of the Cr. P.C. which provide that a person arrested shall be produced before Magistrate within 24 hours excluding the time consumed in journey from the place of arrest to the Court.
92. The Supreme Court has ruled in the case Saptawana v. State of Assam (AIR 1971, SC 813) that custody of arrested person will not vitiate even if the person arrested was produced before the Magistrate after several days, if subsequently proper order of remand is passed by the Magistrate and there is accusation against him. The relevant observations are extracted below :
"The learned counsel for the petitioner says that the petitioner is entitled to be released on three grounds (1). The original date of arrest being January 10, 1968 and and the petitioner not having been produced before a Magistrate within 24 hours, the petitioner is entitled to be released; (2) The petitioner having been arrested in one case on January 24, 1968 and he having been discharged from that case; he is entitled to be released; and (3) as the, petitioner was not produced for obtaining remand, he is entitled to be released :
A similar case came before this Court from this very District V.L. Rohlua v. Dy. Commissioner Aijal District Writ Petition No. 238 of 1970 decided on 29-9-1970 (SC) reported in 1971 Crl. J. (N) 8 and the first point was answered by a Bench of Five Judges thus :
"If the matter had arisen while the petitioner was in custody of the Armed Forces a question might well have arisen that he was entitled to be released or at least made over to the Police. However, that question does not arise now because he is an undertrial prisoner."
It seems to us that even if the petitioner had been under illegal detention between January 10 to January 24, 1968- though we do not decide this point the detention becomes lawful on January 24, 1968 when he was arrested by the Civil Police and produced before the Magistrate on January 25,1968. He is now an undertrial prisoner and the fact that he was arrested is only one case which does not make any difference."
93. Next stage comes relating to remand of arrested person to custody till the submission of charge sheet. The Division Bench of this Court in the case of Noorul Huda v. Superintendent, Central Jail, Naini, Allahabad and Ors., reported in 1984 A.L..T. 561. When a valid order of remand is passed after submission of charge sheet all previous irregularities or illegalities occurring in connection with the orders of remand passed under Section 167 Cr. P.C. stand cured as the orders of remand would be governed by the provisions of Section 209 Cr. P.C. In such case the question of releasing a person from custody or detention authorised by any particular order of remand or detention order would not vitiate since the last order of remand directing the judicial custody is valid order. Then the stage comes about the custody of an accused before the inquiry and trial Court after the charge sheet is filed. According to the provisions of Section 209(b) Cr. P.C., the Magistrate will remand the accused to custody during and until conclusion of the trial if remand order in pursuance of the provisions of Section 209(b) Cr. P.C. is passed at the time when the case is committed to the Court of Session, any illegal or improper order of remand passed during pendency of the inquiry or trial his custody will not be vitiated due to that reason. In case any remand order is illegal at any stage and proper remand order under Section 309 Cr. P.C. is passed the custody will be lawful as observed by the Full Bench of this Court in the case Surjeet Singh v. State of Uttar Pradesh (1984 ACC 69)', (sic) which has observed as under :-
"In view of the normal meaning of the word custody' actual or physical imprisonment of a person both legal and illegal amounts to his being in custody.By restricting the meaning of the word 'custody' in Section 309(2) Cr. P.C. to only legal imprisonment the normal meaning if obviously curtailed. It is not at all necessary for the harmonious construction of the provisions of the Code of Criminal Procedure to restrict the meaning of the word 'custody' in Section 309(2) Cr. P.C. legal imprisonment only. In fact, grave consequences follow if this restriction is placed on the meaning of the word 'custody' for once the custody of the accused becomes illegal by his being confined in Jail without a valid order or warrant of remand due to mistake of the Court it would become powerless to remand the accused to custody under Section 309(2) Cr.P.C. and rectify its error. Even in cases where the accused is alleged to have committed a heinous offece and his being set at liberty is likely to lead to tampering of evidence or his absconding, the Court would be bound to set him at liberty which is not contemplated by the Code of Criminal Procedure. If, on the other hand, custody is given its normal meaning of physical imprisonment the Court will have the power to rectify its error and make the custody of the accused legal by a valid warrant of remand under Section 309(2) Cr.P.C. In all criminal cases the accused is either in prison or is on bail after his arrest during' the inquiry and trial. The word 'custody' in Section 309(2) Cr.P.C. in our opinion, therefore, means physical imprisonment as distinct from being on bail. Even it the accused is in prison after his arrest in a criminal case without an order or warrant of remand by a competent Court he is in custody as distinct from being on bail. The word 'custody' therefore embraces both legal imprisonment as well as illegal imprisonment."
94. The trend of the Courts is that criminals should not go scot-free because of the police blunder or mistake of the Court committed in passing the remand order for the custody, opportunity to Court is given to have the mistake corrected so that interest of the Society may be saved from the operation of the criminals.
95. I fully subscribe to the views of my. esteemed brothers that under Articles 226 and 227 of the Constitution this Court cannot direct the Courts below that the bail application of the writ petitioner may be heard the same day he surrendered for the reasons enumerated in their scholarly judgments.
96. So far as the second question relating to grant of interim bail by the Courts below if the bail application is not heard and disposed of the same day is concerned, I may with great respect invite attention to Section 389 of the Code of Criminal Procedure which envisages interim bail in the cases where the accused is convicted by the trial Court and is sentenced to a term of imprisonment not exceeding three years when accused intends to file an appeal before the appellate Court. Interim bail is nothing but anticipatory bail which has been taken away by U.P. Act No. 16 of 1976. The relief of bail including interim bail or short term bail cannot be granted unless bail application is heard and disposed of finally after giving opportunity to the prosecuting agency or the complainant to oppose and place the correct and complete material available before the Court becasue the law relating to anticipatory bail has been eliminated in the territory of Uttar Pradesh. Such powers cannot be exercised by catching nose indirectly on the assumption that the interim bail is nothing but part of the bail for which the Court is competent to pass order. If Magistrate is permitted to release accused person on interim bail during the pendency of his bail application and in similar way before the Session Judge after rejection of the bail application by the Session Judge the accused can pray before the Sessions Court for interim bail to move the High Court and he can also pray before the High Court to grant interim bail, till pendency of his' bail application in this Court. Such scheme has not been provided by the Statutes. In my view, no Magistrate, Sessions Judge or any other Court has jurisdiction to grant interim bail during the pendency of bail application in the Court.
97. Similarly, no Court can grant interim hail rot moving a bail application in a pending case except for the contingency contemplated by Section 389 Cr. P.C. referred to above. The fact that the accused wants his bail application to be considered must know that he must be in the custody. Nothing in the Cr.P.C. empowers much less anything in the Constitution on the basis of which an accused or a suspect can claim intrerim bail only for getting his bail application decided. It may be repeated that Section 397 Cr. P.C. is a self-contained Section and every bail application moved by a person in custody must be decided in accordance with the terms contained therein. There is no other alternative.
98. In view of the aforesaid additional reasonings as stated above, I fully agree with the view expressed by Hon. Palok Basu, J.
G.S.N. Tripathi, J.
99. I have had the unique privilege to be enlightened after going through the judgment prepared by our esteemed brothers Hon' ble Mr. Justice B.M.Lal, Hon'ble Mr. Justice Palok Basu, with whom Hon'ble Mr. Justice V.N. Mehrotra has concurred fully and also the opinion expressed by Hon'ble Mr. Justice Kundan Singh, who, after concurring with Hon'ble Mr. Justice Palok Basu's view, has expressed his views in few words in support of the same.
100. The following question was referred to this Full Bench :-
"Whether while rejecting the writ petition filed for quashing first information report, this Court, in exercise of its powers under Article 226 of the Constitutioon of india can issue a writ, order or direction in the nature of mandamus commanding the Magistrate or the Court of Sessions, as the case may be, to consider bail application of the accused/ petitioner on the same day, AND in the event of failure to conclude hearing of the bail application same day, to release the accused / petitioner on bail or on his personal bond same day, by granting interim bail pending disposal of the bail application ?
101. The occasion for constituting the Full Bench arose because of two conflicting judgments rendered by two Division Benches of this Court one Dr. Hidayat Hussain Khan v, State of U.P. and Ors. (1992 Cri. LJ 3534), commonly known as Allahabad judgment laying down the law that while hearing a petition under Article 226 of the Constitution, this Court can issue a direction to consider the bail on the same day and in the event of failure to do so, to relaese the accused on interim bail or on his personal bond on the same day till the disposal of the bail application. This applies both to the Court of Magistrate as well as Sessions judge, whereas, according to the case of Noor Mohd. v. State of U.P. and Ors. in Writ Petition No. 919/92, known as Lucknow case, a contrary view was taken that such directions fixing a time limit to consider the bail the same day and in the event of failure to do so to release the accused on interim bail or on personal bond cannot be issued.
102. While answering the question, Hon'ble Mr. Justice B.M. Lal at page 37 of his judgment has observed as follows :-
"The re fore, not with stanting the fact that 'speedy trial' covered under Article 21 of the Constitution includes' speedy disposal of bail application as well; we are of the considered opinion that in exercise of powers under Article 226 of the Constitution, while issuing direction and command to the Magistrate or the Court of Sessions as the case may be, to consider the bail application, time Schedule for concluding bail proceedings cannot be fixed. This is our answer to the question referred to us.
Accordingly, the view taken in Dr. Hidayat Hussain Khan's case (supra), to the extent it fixes outer limit for disposal of the bail application same day and direct for releasing the applicant on bail in the event of failure to dispose of bail application the same day, stands overruled and the view taken in Noor Mohammad's case (supra) to the extent it is in conformity with the conclusions arrived at by us above is confirmed."
103. However, he has added additionally as follows: -
"However, in view of latest pronouncement of apex Court in Karta Singh's case (1994) 3 SCC 569 (supra) this Court itself, in exercise of jurisdiction under Article 226 of the Constitution in rarest of rare cases in extreme situation where it ex facie finds that the proceedings initiated against the accused persons by the police agency amount to abuse of process of Chapter XII of the Code, may in its discretion, consider to grant bail."
In fact, to my view, this additional observation was not needed because this question was not referred to the Full Bench. However, since this observation is based on the Supreme Courts observations, it should be allowed to stand as it is.
104. While replying to the same question, Hon'ble Mr. Justice Palok Basu while concluding, observed at page 48 as follows:-
"In view of the aforesaid discussions the decision in the Allahabad case i.e., Dr. Hidayat Hussain Khan v. Slate of U.P. is overruled and the exposition of the legal position in the Lucknow case, i.e., Noor Mohd. v. State of U.P. and Ors. is upheld except that since no adminslralive directions appear necessary, the said paragraph is overruled.
For the aforesaid reasons, all the three writ petitions arc disposed of with the direction that if the petitioners are arrested and brought before the competent Court or voluntarily surrender before the competent Court and apply for bail, their bail applications will be decided in accordance with law by the competent Court as expeditiously as possible."
105. Thus the view expressed by all the Hon'ble Judges on the question referred to this Bench is the same. 1 respectfully agree with the view that the view taken by this Court in Hidayat Hussain Khan's case. (1992 Cri. LJ 3534) (supra), is not correct.
106. While supporting the aforesaid view, I would like to add few lines.
107. The liberty available to a citizen (accused) is not unbridled. But it can be taken away by a law established. There is no dispute to the fact that Code of Criminal Procedure is a law established and it contains the procedure that if a citizen's liberty has been taken or curtailed, the Court have to scrutinise the same at the lime of remand as well as bail. For that,.a specific Chapter has been enshrined in the Cr. P.C. containing the detailed procedure established by law.
108. Every person arrested or detained shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the Journey from the place of arrest to the Court of Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. This is how Article 22(2) of the Constitution has been worded. In clause (1) of Article 22, the grounds of detention have to be informed as soon as may be. It MEANS THAT IT IS ALWAYS left to the detaining authority in the circumstances of the case to determine as to how soon the grounds for arrest should be furnished. Of course, this discretion should be fair, just and not arbitrary in the circumstances of the case and this is further subject to judicial review by the Court of law.' The geographical conditions of a place, conveyance available and other local difficulties which may come in the production of the accused before a Magistrate are always bound to differ from case to case. That is why the Constitution makers as well as the framers of the Cr.P.C. were not regid and the Magistrate, of course, before whom the accused is produced, has to examine it. Thereafter, the Magistrate has to authorise detention and if necessary, he has to consider the bail application also. In case he chooses to remand the accused to custody, it is his discretion as to how long the accused has to be detained. Of course, with a rider that he shall not order detention for more than 15 days at a time. At the time of every remand, the material has to be considered. The remand becomes necessary only because all the materials have not been collected. Therefore, again the discretion of the Magistrate crops up. Whether the material is sufficient or not is left to the subjective satisfaction of the Magistrate. In many cases, materials might not have been collected or if collected, might not have been transmitted to the Magistrate or to the public prosecutor. Therefore when the bail application comes up the prosecution prays for lime to bring forth the entire material collected or likely to be collected before the bail may be considered. By any stretch of imagination, this request of the public prosecutor can be said to be unreasonable.
109. The authority given to the Magistrate flows from the Constitution (Article 22) and has been further conferred by the provisions of Cr. P.C. Hence this Court while sitting under Article 226 of the Constitution, cannot pass any direction as to in what way the Magistrate should act, and how should he deal with the bail matter and whether he should concede to the request of the public prosecutor or not. There can be no dispute that if the entire material is available, the Magistrate may always decide the bail application on that very day. But if the entire material is not available, as per averments made by the public prosecutor, it will not be proper for this High Court to encroach upon the subjective satisfaction of the Magistrate and it will not be just and proper in exercise of jurisdiction to direct the Magistrate or Sessions Judge to decide the bail application on the same day, and if it is not possible to release the accused on bail or on personal bond law does not contemplate any curtailment of powers of the discretion of the Magistrate.
110. There is further no dispute with the legal provisions that in rare cases, the High Court may itself grant bail under Article 226 of the Constitution. But to direct the Magistrate or Sessions Judge to decide the bail application on the same day is something altogether different, because it involves the curtailment and infringement of the rights vested in the Magistrate by law.
111. By drawing inspiration from Articles 21 and 22, it was urged by the learned counsel that the grounds for the detention are required to be provided forthwith. But it does not mean immediately. It has to be provided within a reasonable time and supposing before the lapse of this reasonable time (to be decided by the Magistrate/Sessions Judge) if an application for bail comes up and this Court issues a mandamus to decide the bail application on the same day on which it is moved, it amounts to interference in the jurisdiction exclusively vested in the Magistrate/Sessions Judge. Law does not permit such an interference.
112. Mr. Sengar, learned counsel, argued that the grounds available and material to be considered for bail, shall always be the same. With due respect to the learned counsel, I do not agree. Even on the existence of a prima facie evidence, the accused may be remanded to Jail. The grounds may be still in pipeline. Hence this contention is not accepted. Since the discretion is vested in the Magistrate/ Sessions Judge, when he directs the remand to the Jail custody, he does not violate the spirit of law and it cannot be argued that the custody becomes illegal. Even otherwise, unless the entire material is available, no counsel under Article 22 of the Constitution can do full justice by way of defending the accused on the one hand and rendering legal assistance to the Court on the other. Therefore Mr. Sengar's argument has no substance that the provisions of law should be interpreted with utmost rigidity. Everywhere the words used are " as soon as may be or within a reasonable time." So if the Magistrate remands the accused to Jail custody and fixed a date for consideration of the bail within a reasonable time, he very much acts within the jurisdiction vested on him by the Cr.P.C. and also legitmised by the Constitution.
113. The accused may have been named in the FIR in some cases, while in certain cases, he may not be named in the FIR. He might have been named under Section 161 Cr.P.C. All the culprits for interrogating him, may not be available by that time, except a strong suspicion existing against the accused. In that case, the Magistrate will be justified in sending the accused to Jail for a short period, not exceeding 15 days at a time. This time may be utilized by the prosecution for collecting the entire material. In these days where crime is not only local and national but also has international ramifications, it will not be possible in such cases for the police officers to conclude investigation within 24 hours. In many cases, assistance of inter-state police and INTERPOL becomes necessary. The accused might have taken shelter in some other state or country. Without adequate time, the investigating agency may not be in a position to collect the entire material against him and if by chance, he comes out of custody and for want of full material, he is granted bail or parole, he may not appear at all. So, this Court will not issue a mandamus to the Magistrate/ Sessions Judge to decide the bail application, in all cases, on the same day. Of course, the time schedule for completing the investigation prescribed in Section 167 Cr. P.C., i.e., 60 days/90 days shall have to be adhered to rigidly.
114. Under Section 437 Cr.P.C. if the accused is either produced or he voluntarily surrenders and in the latter case, he applies for being sent to jail, if needed, he applies for bail and raises questions regarding the detention, a legitimate answer may not be available on the spot. The entire material collected by the at time may not have been brought to the notice of the Court. So, the Magistrate will have to send the accused to Jail even on the basis of strong suspicion, i.e., may be even on the ground that he may be mentioned in the FIR or under Section 161 Cr.P.C. supposing the Magistrate is directed to decide the bail application on the same day, he is bound to allow it, or release the accused on Personal bond, as there will not be sufficient material, as there exists only a very weak type of evidence till that stage. If the accused is allowed bail in such matters, it is bound to have an adverse impact upon the society. The very purpose of the administration of justice will be frustrated. At the cost of repetition, I may stress that if there is adequate material available even at that stage, the Magistrate can decide the bail application always on that very day. But here also, the jurisdiction is exclusively of the Magistrate and it can neither be imposed nor curtailed by this Court, otherwise it will amount to infringement or interference with the authorities exclusively vested with the Magistrate/ Sessions Judge. Tacitly it may amount to compel the Magistrate to act in a mechanical manner, which will be neither in the interest of the accused nor in the interest of the society. Exercise of judicial authority should not be allowed to become a mechanical exercise in futility. It involves an application of judicial mind and the law requires that a judicial act should also be fair, just and not arbitrary. For that, a reasonable time and opportunity must be afforded to the Magistrate/ Sessions Judge. That is why, it should be left to the Magistrate whether to decide the bail application immediately or within a reasonable time thereafter with a view to do justice to the case without in any way being interfered by this Court.
115. Whether in'a given circumstance, the Magistrate grants temporary or short-term bail or not, is always in the discretion of the Magistrate. This point has been considered by Hon'ble Mr. Justice B.M.Lal at page 36 of his judgment and 1 agree with the observations made by his Lordship, to which, unfortunately, Hon'ble Mr. Justice Palok Basu does not subscribe. On the basis of detailed discussions made by Honjble Mr. Justice B.M.Lal, his conclusions appear to be justified. Of course, this was not a question referred to us and could have been avoided. But I agree with the observations made by Hon'ble Mr. Justice B.M.Lal at page 26 of his judgment. There is another difficulty. There are cases where the police may need the assistance of the accused to make recoveries under Section 27 of the Evidence Act and it is quite likely that on the basis of such recovery, a fool proof case may be made out against the accused. If this privilege is snatched from the police, grave injustice is likely to occur to the administration of justice itself. This provision, read with Section 157 Cr.P.C., is meant to safeguard the interest of the Society and, if necessary, under Section 157 Cr.P.C, the investigating Officer, may take necessary steps for recovery and arrest of the offenders. According to Hon'ble Mr. Justice Lal, the investigating officer is not bound in all cases to arrest the accused. He will do so only when he deems it necessary. I agree with the observations made by Hon'ble Mr. Justice Lal at page-33 of his judgment. With due respect to Hon'ble Mr. Justice Palok Basu, I think that it will not be possible to subscribe to his views expressed at page 35 towards the end in these words:-
"It is not possible to subscribe to the view that the word arrest is made discretionary."
Even this question was not res integra to the reference made to this Full Bench and any such comment could have been avoided. But since an interpretation to Section 157 Cr.P.C. has been put by our respected brother Hon'ble Mr. Justice Lal, I find that the interpretation by his Lordship is correct.
116. Under Section 41 Cr.P.C, the Police Officer may arrest without any order from the Magistrate and without any warrant, any person, even on the basis of "reasonable suspicion." If this suspicion is subjected to objective determination by the Magistrate at the time of granting remand, it may not stand the scrutiny of law because suspicion is no evidence although it empowers a police officer to act under Section 41 Cr.P.C. So, this material may not be sufficient for granting or refusing bail to the ac cused. But it will be sufficient for granting remand. Any interference by this Court by way of a direction to the Magistrate/ Sessions Judge to consider the bail on the same day, will put the prosecution always in ' jeopardy and the consequences will always remain hanging against it. This will not be an even-handed justice either. Nay it will amount to gross injustice in some cases. Not only this, it will not be possible to give a harmonious construction to Section 41 Cr.P.C. along with Section 437 Cr.P.C The Legislature in its wisdom has given powers to the police under Section 41 Cr.P.C. and the Courts cannot suspect the soundness to this wisdom by making provisions of Section 41 nugatory, ineffective and impotent. That is why, I do not agree with the arguments advanced by learned counsel Mr. Tapan Ghosh that even in such cases, the Magistrate/ Sessions Judge should be ordered to consider the bail on the same day. Accordingly, this contention is rejected. The arrest made under Section 41 Cr.P.C, is an "arrest" under the provisions of Cr.P.C. i.e. procedure established by law.
117. There is, however, one practical difficulty. In one crime number two persons are named as accused, i.e., A and B. The police goes to arrest both. A is arrested. B runs away. A is produced before the Magistrate. His bail application is put up for hearing on a date fixed. In case of rejection by the Magistrate, an approach is made to the Sessions Court, which also fixes a date for hearing of the bail matter. B approaches the High Court and gets an order under Article 226 of the Constitution in his favour, ordering the Magistrate/ Sessions Judge to consider his bail application on the same day. The Magistrate/ Sessions Judge is bound to obey this order and thus the bail application of B shall get precedence over the bail application of A. Indirectly it will be encouraging evasion of law and also flouting of legal procedure. Everybody will try to avoid arrest and approach the High Court. An interference by the High Court under Article 226 of the Constitution, will be putting B on a better footing than A. This argument was advanced by Sri Dwivedi, Addl. Advocate General and has been dealt with by Hon'ble Mr. Justice B.M. Lal at pages 22 and 23 of his judgment. Unfortunately, Hon'ble Mr. Justice Lal did not agree with this argument advanced by Sri Dwivedi. With due respect to our learned brother, I thinkthat his views do not appear to be sound. There is much force in the arguments advanced by Sri Dwivedi that any direction by the High Court under Articles 226 of the Constitution to consider the bail application of B on a priority basis, will place A in a jeopardised state. This is another reason why I think that the High Court should not pass any such order to consider the bail application on the same day.
118. There is another difficulty. The availability of time with the learned Magistrate on a date has not been taken into consideration by Mr. Tapan Ghosh, while advancing the argument. Supposing 20 applications have already been fixed on a particular day and 10 persons approach the Court on the same day with the order of the High Court and pray for consideration of their bail applications on the same day, the Magistrate may not find time to dispose of all those 10 bail applications. This way, he will have to adjourn the consideration of some bail applications to a future date. Even on that day 10 or 15 orders of the High Court may be filed and the Magistrate will be faced with the same difficulty. On the one hand, he violates the order of the High Court if he does not stick to the schedule of the High Court. On the other, he shall be failing in his duty towards other better-placed applicants, whose liberty has already been snatched a week or two earlier. I think the High Court should not encourage either disobedience of its own order or disregard towards imparting even-handed and legal justice to others at the cost of such better-previleged persons who have obtained orders of the High Court.
119. There is yet another apprehension. Many of the arrests are made during the course of investigation and so also the bail applications are considered at that very stage. Availability of the accused is very essential in many cases for coming to a correct conclusion. In many cases, accused is interrogated, which is also a part of investigation. By unduly interfering with the discretion vested in the Magistrate or ordering him to consider the bail application on the same day, this Court will not only be interfering with the discretion vested in the Magistrate but also in the investigation itself. It is not proper and desirable it should be avoided.
120. There is no dispute that this Court under Article 226 of the Constitution has unlimited jurisdiction. But the'courts have always imposed restrictions upon their own powers and existence of an alternative forum, for getting a particular relief, is one of those circumstances which induces this Court to refrain from acting under Article 226 of the Constitution. The existence of provisions of bail in the Cr.P.C. has provided a validly authored forum. Hence this Court should leave the matters in the hands of the judicial authorities created under the Code of Criminal Procedure. Of course, this Court may interfere when gross injustice is brought to its notice and quash the investigation, charge-sheet, arrest etc. whereas, the accused may press the normal Courts concerned to consider his bail application at the earliest. In the majority of the cases, he will get the desired relief.
121. It will not be proper to start with a presumption that prosecution always avoids arguing bail applications at the earliest. They may have genuine difficulties as well, which this Court cannot ignore. A crime is committed at place A. The post-mortem is done at place B. The Courts sit at place C. The moment an application for bail is moved, it is not always possible for the prosecution to have collected the entire information from all the places and get ready for full-dressed arguments. So, the accusation made by the learned counsel is not well-founded. The State is not interested in unduly detaining any innocent person. The State simply wants time in these changed times, where the field of crime has increased. In many cases, its dimension is inter-state or even international. Bomb blast cases, which took place recently in Bombay, Madras and Calcutta are shining examples. In many of the cases King pin of the crime escapes from the country and it becomes a Herculean task to arrest such persons. The existence of Extraditon Treaties becomes essential. Hence the entire material may not be available at the time when the bail application is pressed. At the same time, the Court cannot enlarge a culprit on parole or short-term bail, looking to the heinousness of the crime and its world-wide ramifications.
122. There is absolutely no force in the arguments of Mr. Tapan Ghosh that under Section 437 Cr.P.C, the State has no authority to be heard. This contention is rejected. The State represents the society. Every crime is an offence against the society. In what way the criminals should be dealt with, is a matter to be considered after looking into the pros and cons and the other side of the picture can only be shown by the State. So this desperate argument has no weight as the Society is based on natural justice. One of its ingredient is not to condemn a person without hearing. By granting an easy bail, indirectly, the State is condemned. Hence it has a right to be heard with all cases like bail unless in some exceptional cases which the Court considers it proper to exempt itself from this obligation.
123. I agree with the contention of the learned Advocate General that a short sojourn of an innocent person in Jail, is not likely to disturb the society as much as an order granting parole to a culprit. Because in the latter case, the society suffers a lot. This is not a case of winner or loser. Rather, it is a case where the State has to play an active part in discharging its legal and statutory obligation. That is why, full consideration after application of judicial mind, is a must even before granting a short-term bail or parole to the accused.
124. I do not subscribe to the view of Hon'ble Mr. Justice Kundan Singh that there is no provision for granting parole or short-term bail in the Code of Criminal Procedure except Under Section 389(2) Cr.P.C. This point has been dealt with by Hon'ble Mr. Justice B. M. Lal extensively in the body of his judgment. I respectfully agree with Hon. Mr. Justice B. M. Lal.
125. It was urged by Mr. R.K. Jain, another Senior Advocate and an intervener on behalf of the High Court Bar that the consideration of bail on the same day, is not prohibited by the Cr.P.C. Therefore, this Court can direct the Magistrate to consider it on the same day. There is no dispute so far as the first part of this contention is concerned. The only dispute is with regard to the second part, which cannot be entertained for the reasons noted above as it amounts to the curtailment of the powers vested in the Magistrate exclusively. We cannot start with a presumption that the Magistrate shall not act justly, fairly and un arbitrarily while deferring the consideration of bail matter for a short-while. As the Magistrate enjoys not only the legal authority but also a constitutional authority, he is expected to exercise the jurisdiction according to law.
126. In many cases brought to our notice, it was shown that even after finding that a petition under Article 226 of the Constitution for quashing the FIR, is dismissed on merits, this Court had ordered, at the same time, by way of grant of an ancillary relief to consider the bail application the same day. A serious objection was taken to this by the learned Advocate General. He urged that no ancillary relief can be granted when there is no matter pending before the Court or the main petition has been dismissed. This point has merit. I think that when the main petition is itself being rejected, ancillary relief should not be granted. With due respect to Hon'ble Judges, who have passed such orders, I wish to state that this is not a proper exercise of jurisdiction vested in the High Court under Article 226 of the Constitution.
127. Enunciation of doctrine by Mr. R.K. Jain that there cannot be a wrong without remedy, is not new. But unfortunately, it is not applicable in the present case. Remedy of bail has been provided at every stage in the Cr.P.C. including one under Section 167 Cr.P.C. There is a Chapter for bail specifically. So this doctrine is not invited as even adjournment of consideration of bail matter falls within the fourcorners of the jurisdiction vested in the Magistrate and it is not a wrongful exercise of power.
128. Learned Addl. Advocate General further urged that if a direction is given by this Court that the bail matter should be considered the same day, it may further be prayed that why not the Magistrate should be ordered to consider the bail application at the same moment when it is filed, because even a minutes loss of liberty of a person is to be avoided and the same may be repeated with the Sessions Court and High Court also under Section 439 Cr.P.C. I think that this sort of likely misuse should be avoided and that is another 'reason why the High Court should not pass any such direction while exercising powers under Article 226 of the Constitution.
129. The Lucknow case contemplates certain hardships and desires that some administrative directions may be issued by the High Court. Hon'ble Mr. Justice Palok Basu has rightly observed at page 48 of his judgment that this portion of the judgment should be ignored as no administrative direction appears necessary and the same paragraph should be overruled. I wholly subscribe to this valuable view of our esteemed brother. This does not mean that the High Court cannot exercise the rights of superintendency available to it under Articles 226/227 of the Constitution. But the administrative directions should not interfere with the exercise of the judicial discretion vested in a particular authority, i.e. Magistrate in this present case.
130. Mr. G.S. Chaturvedi argued that the Government servants stand as a class by themselves, inasmuch as they are likely to be suspended and lose their jobs in case they are kept in jail for more than 48 hours. Therefore, in that case, the Court can interfere. I do not subscribe to this view. If the Govt. servants are treated as a separate class, several such classes like unmarried ladies, whose marriage prospects are likely to be jeopardised in case they are sent to jail, aged and infirm persons, who may not get proper medical facilities in jail, Pardanashin ladies, whose right to use Parda is violated and several such difficulties may arise, may claim to be classed separately. So, I do not agree with this view. Of course, the Magistrate/Sessions Judge may himself consider their bail applications at the earliest taking into consideration these personal difficulties. But this Court should withdraw absolutely from passing such directions, and it should not arrogate to itself the powers of Sessions Court or Magistrate.
131. A serious anomaly is likely to arise in passing a blanket order to the Magistrate to consider the bail application on the same day of a particular individual or a class of individuals and specially, those who have come to the High Court by giving over riding precedence to them over others.
132. The High Court itself for its working has framed rules that the bail application shall be considered after notice to the prosecutor after a lapse of 10 working days. This is in order to facilitate the working of the Court. Therefore, the sub ordinate Court should also be allowed to work according to the circumstances of the case in a reasonable manner. No straight jacket mandamus should be issued,
133. We are conscious of the fact that the speedy justice is covered by Article 21 of the Constitution. But we cannot forget that the justice even of this sort should be according to law.
134. It was urged by Mr. Tapan Ghosh that a mild usurpation of the powers of the lower Court will enhance the glory and prestige of the High Court. I admire his lauuble objective. But I reject his contention and it should not be entertained as it amounts to violation of law.
135. Learned Addl. Advocate General cited some American cases in which the stress has been laid on the point that adequate hearing should be available to the parties including the State even at the stage of bail. Further, he urged that even in such an advanced society like U.S.A., the provision of authorization of jail custody at the hands of the Magistrate is provided. Therefore, I agree with the learned Addl. Advocate General that the squeezing of the hands of the Magistrate by issue of a mandamus by this Court will not only be putting undue strain on the Constitution, but also be against the spirit of procedural law contained in the Cr.P.C. Even the Legislature cannot take away the powers of a Magistrate conferred upon him by Article 22 of the Constitution, much less this Court.
136. Another unfortunate feature of the case is that while passing an order under Article 226 of the Constitution, while rejecting the main prayer for quashing the FIR, the entire case diary containing the materials is not available before this Court. Even then this Court ventures to exercise its arrogated powers even in respect of such matters. No judicial order should be passed without proper consideration of the entire material as it may amount strangulating the procedure contained in the Cr.P.C. Hasty justice spells doom.
137. In many cases it so happens specially, in communal riot cases that the police officer has to contain the riots, prevent future offences from being committed and get the offenders arrested, who have already committed offences and at the same time, he has to collect evidence too. All these things have to be done almost simultaneously by the police. Hence the entire material cannot be produced before the Magistrate at the time of consideration of short-term bail. Acting on the basis of such scanty material, is bound to result in injustice and further likely to hamper the equilibrium of the society.
138. I agree with the views expressed by Hon'ble Mr. Justice Lal as well as Hon'ble Mr. Justice Basu that fixing time schedule for consideration of bail application cannot be directed by this Court.
139. Hon' ble Mr. Justice Basu has rightly pointed out at page 44 of the judgment as follows :-
"Once the challan has been filed the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan.
140. Thus in my considered view, the opinion expressed by Hon'ble Mr. Justice Lal, Hon'ble Mr. Justice Basu and other two Hon'ble is in consonance with law. The answer to the question given by them is sound and I agree with the valuable views.
Palok Basu, J.
141. It was indeed a pleasure to go through the learned judgment of Hon'ble B. M. Lal, J. and respectfully concur with his Lordship's view:
"that in exercise of powers under Article 226 of the Constitution, while issuing directions and command to the Magistrate or the Court of Sessions, as the case may be, to consider the bail application, time schedule for concluding bail proceedings cannot be fixed."
but, some of the observations of my esteemed brother recorded in arriving at the said conclusion, with great respect, do not appear to be subscribable. Moreover, the aforesaid three petitions were referred to Larger Bench for decision. Hence, the question formulated by Hon'ble B. M. Lal, J. may be the central point of discussion but final decision in the petitions have to be passed even after an answer is given to the question so framed. Thus writing this opinion has become imperative. Discussion about those observations of my esteemed brother will be taken up after the factual and legal aspects which have been for decision are dealt with.
142. The aforesaid three writ petitions were referred by one of us to larger Bench to resolve the conflict arising out of two Division Bench decisions of this Court. The Hon'ble C. J. has constituted this five Judge Bench to consider the matters.
143. In the writ petition of Dr. Hidayat Hussain v. State, 1992 Cri LJ 3534 for short - the Allahabad case, while considering the prayer "for direction to consider bail application on the same day" the decisions of learned single Judges in Rajendra v. State, 1989 ACC 57 and Sipti v. State, 1991 ACC 178 thereby issuing general directions not to arrest an accused till his bail application shall have been disposed of by Court below, which practice should be universally followed by Sessions and Magistrates' Courts, were overruled and it was held that-
"Even without interfering with the first information report or with the investigation, High Court under Article 226 of the Constitution, has power subject to limitation created by Constituion, to enforce fundamental or legal rights and also to administer law with a view to give effect to law. Right to speedy trial flows from Article 21 of the Constitution encompassing all the stages, namely... stage of investigation, enquiry, trial, revision and retrial. The principle of speedy trial even includes the period of remand, pre-conviction detention. It should be as short as possible. Accused are not to be subjected to unnecessary and unduly long harassment prior to his conviction. Thus, a direction of the High Court in appropriate cases under Article 226 of the Constitution in respect of the consideration of the bail application speedily are implicit in its power to administer law. We also make it clear that while passing order for consideration of the bail application on the same day in exercise of power under Article 226 of the Constitution by the High Court, subordinate Courts cannot take a clue for exercising similar power indiscriminately or universally. It is also necessary to clarify when the High Court directs to consider a bail on the same day, subject to such terms incorporated in that order, it does not mean that the bail application should be allowed invariably. Such powers can be exercised by the Courts below for dismissing the bail applications also...."
However, having held thus, the Division Bench issued directions in the Allahabad Case to the effect that even during the period of short term release for 3 or 7 days if the accused keeps good conduct, that itself shall not be the sole ground for enlarging him on bail finally; and that the Court below shall be free to pass appropriate orders on the bail application as he deems fit on that date.
144. It is noticeable in the Allahabad Case that on 17-4-1992, on surrendering before the Sessions Judge, the accused was granted a "release order on personal bond of Rs. 5000/-" by the Sessions Judge which was posted for final orders on 18-5-1992. In the Allahabad Case, the order of the Sessions Judge in accepting surrender of an accused directly, in entertaining bail application directly and in ordering interim release on personal bond was thus fully countenanced, though prayer for quashing the F.I.R. and investigation was rejected.
145. In Civil Misc.Writ Petition Noor Mohd. v. State of U. P. (for short, the Lucknow case) a Division Bench of this Court dismissed the prayer for quashing the F.I.R. and has made the following observation;
"In view of the aforesaid discussion, we are of opinion that this Court cannot direct the trial Court to hear the bail application the same day. It cannot also direct the Court below not to arrest the person who surrenders himself and moves an application for bail and to direct the police not to arrest him. No direction can also be issued to release the applicant immediately after he surrenders on a personal bond without any other consideration and to hear again the application for bail on merits.
Each of those directions would, as discussed in detail above, violate the provisions of law and subvert the process inherent in the bail determination.
It is not that we are not equally concerned about the unnecessary deprivation of liberty of any individual. Yet we cannot persuade ourselves to bend the provisions of law relating to bail beyond the limit of elasticity and issue directions which would stretch them beyond the breaking point. However, in case this Court, in its administrative capacity considers simplification of this process of bail, the present harassment can substantially be reduced."
146. There is thus a direct conflict in the decisions in the Allahabad case and Lucknow case which has to be clarified and law has to be settled. This necessitates a look at the facts and the questions raised by petitioners in the matters under reference.
147. In the instant writ petition No. 3643 of 1992 filed by Dr. Vinod Narain the main prayer is that the first information report dated 20-12-1992 giving rise to case Crime No. 2747 of 1992, P.S. Kotwali, Bareilly lodged by Sri P. N. Tripathi registered under Section 279 and 304-A, IPC (420 IPC added in the diary) be quashed. In the alternative it was prayed during arguments that should the main prayer fail, the petitioner's bail application may be directed to be considered by the Court below on the day it is moved. After hearing the learned counsel, no case for quashing of the F.I.R. was made out and, therefore, the said prayer was rejected. While considering the ancillary prayer, the aforesaid conflict in the two decisions came to be noticed for which this refer' ence was made.
148. In the instant writ petition No. 3644 of 1993, Smt. Bhagwan Devi, Smt. Ichha Devi, Chhokhev Lal, Ramesh Chandra and Pappu have prayed for quashing the F.I.R. giving rise to case Crime No. 1808 of 1992 registered under Sections 498-A read with Section 304-B, IPC, P.S. Firozabad South. In the alternative it was prayed during arguments that should the main prayer fail, the petitioner's bail application may be directed to be considered by the Court below on the day it is moved. After hearing the learned counsel, the prayer for quashing of the F.I.R. was rejected. Chhokhev Lal, Ramesh Chandra and Pappu's bail applications were directed to be disposed of in accordance with law by the competent Court expeditiously. Considering the same prayer regarding the two women-accused the aforesaid conflict in the two decisions came to be noticed for which this reference was made.
149. In the instant Writ Petition No. 33799 of 1992 Dr. (Smt.) Sushila Pant has prayed that the first information report giving rise to case Crime No. 167 of 1992 registered under Section 304-A IPC read with Section 7 of the Prevention of Corruption Act at Police Station-Srinagar, Pauri-Garhwal be quashed. In the alternative it was prayed during arguments that should the main prayer fail, the petitioner's bail application may be directed to be considered by the Court below on the day it is moved. An additional argument In the case of this petitioner was advanced. It was said that if the petitioner surrenders before the competent Court and remains in custody for more than 48 hours she being a Govt. servant, will be deemed to be suspended under Section 49-C of the Civil Servants' Classification Control and Appeal Rules even without initiation of disciplinary proceeding. After hearing the learned counsel, the main prayer for quashing of the F.I.R. was rejected. While considering the ancillary prayer, the aforesaid conflict in the two Division Bench decisions was noticed for which this reference was made.
150. Before going into the various arguments raised, it would not be presumptuous to conclude that the principal controversies which are up for consideration in the instant petitions are perhaps the illegitimate progeny of an unwelcome alliance between a Central Act (Cr.P.C. Act II of 1974) enacting 'anticipatory-bail' provisions for the entire country in Section 438 thereof, and, a State Act (Criminal Law Amendment Act No. XVI of 1976), Section 9 of which "OMITTED" the said Section 438 Cr.P.C. is entire Uttar Pradesh. Unfortunately, the said alliance is' still persisting. That means that "pre-arrest" remedy available in rest of the country is denied to the citizens in Uttar Pradesh. If the anticipatory-bail provisions are restored in the State of Uttar Pradesh, no citizen may feel like approaching this Court for an order that his bail application be "directed to be heard the same day". This legal situation was criticised by the petitioners as anomalous, discriminatory and purposive. On behalf of the State it was argued that the experiment of bringing in provisions of anticipatory bail was discouraging not only in Uttar Pradesh but in the entire country and a rethinking about continuing those provisions has been initiated. Be that as it may, the legal crisis arising before this Bench owes its existence to deletion of Section 438 Cr.P.C. in Uttar Pradesh.
151. At the admission stage of these three petitions, conflicting views in Allahabad case and the Lucknow Case were noticed. In short, the Allahabad Case holds that High Court can issue directions for considering the bail application of accused in a non-cognizable offence "on the same day". The Lucknow case holds that the High Court Has no such power, much less the power to grant interim bail. In the orders making this reference it was said that the vires of State Act No. XVI of 1976 was perhaps under challenge in some writ petition pending in this Court. During argument, it transpired that such a matter was pending disposal in the Supreme Court in Ram Narain Singh 1981 (2) SCC 757 (Sic) wherein the Hon'ble Supreme Court has directed that "the question, however, remains whether or not the impugned Act could stand the scrutiny of Articles 14, 19 and 21 of the Constitution. We, therefore, direct that this case be placed before the Hon'ble the Chief Justice for being heard by a larger Bench, if not the Constitution Bench. Liberty to mention."
152. In this Court, the view of a Division Bench in Km. Parwati 1979 ALJ 972 has held the field since 1979 up to date. The State Act XVI of 1976 was declared valid in Km. Parwati as the assent of the President of India under Article 254 of the Constitution had been obtained. In Ram Narain Singh (sic) the observations are over and above the decision of the Division Bench in Km. Parwati. The Hon'ble Supreme Court wanted to check the vires of the provisions of the State Act with reference to Articles 14, 19 and 21 of the Constitution of India. In none of the instant petitions has the vires been challenged. However, on behalf of Bar Association-intervenor, an application was moved at the time when hearing was on, to permit amendment and hear arguments on the question of vires. This was strongly opposed by the State. Consequently, this Court was to refrain from examining the vires of the State Act No. XVI of 1976, for, the matter was specifically subjudice before the Hon'ble Supreme Court. However, in Kartar Singh v. State of Punjab 1994 (3) SCC 569 the constitutional validity of criminal law Amendment Act No. XVI of 1976 deleting Section 438 Cr.P.C. in the entire State of Uttar Pradesh, has been upheld. May be that the existence of Section 438 Cr.P.C. in the adjoining States or for that matter, perhaps in the rest of the country and its deletion only in the State of Uttar Pradesh has not been examined from the point of view of requiring uniformity in procedure in the administration of Criminal law throughout the country. None-the-less, while examining the provisions of TAD A which of course is applicable selectively in different parts of the country, the aforesaid State Act was examined and its validity has been upheld.
153. It would, therefore, not be permissible for the parties to advance arguments in this Court regarding the validity or otherwise of Uttar Pradesh Act No. XVI of 1976 omitting Section 438 Cr.P.C. in the State of Uttar Pradesh. It is not known whether a re-thinking about continuing with the provisions contained in Section 438 Cr.P.C. in other States, or restoring the provision in the State of Uttar Pradesh was going on or not, it sounds desirable that uniformity is brought regarding provisions of anticipatory bail throughout the country.
154. However, some of the observations of Hon'ble B.M. Lal, J. are acceptable for strongly pleading for enactment of a provision like Section 438 Cr.P.C. which stands repealed in our State. It may only be mentioned here that the Law Commission had given anxious consideration to the justification of enacting Section 438 Cr. P. C. because under the old Criminal Procedure Code (Cr.P.C. of 1898) there was no such provision. The right to move application for anticipatory bail is available to citizens of India in most of the States barring perhaps only our State. The Law Commission report had said;
"39.9 The suggestion for directing the release of a person on bail prior to his arrest (commonly known as anticipatory bail) was carefully considered by us. Though there is conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because some times influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding such a person accused of an offence is not likely to abscond, or otherwise misuse his liberty, while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail."
155. It may further be relevant to, mention here that the aforesaid Section 438 Cr.P.C. was incorporated in the Central Act because :-
"As recommended by the Commission, a new provision is being made enabling the superior Courts to grant anticipatory bail, i.e. a direction to release a person on bail issued even before the person is arrested. With a view to avoid the possibility of the person hampering the investigation, special provision is being made that the Court granting anticipatory bail may impose such conditions as it thinks fit...."
156. None-the-less, it is always open to the Central Government or the concerned State Government to delete Section 438, Cr. P.C. if exigencies in the country or exigencies peculiar to a concerned State so require. This is specifically within the domain of the legislature. The most that can be suggested is that the entire country deserves to be brought on similar lines so that equal opportunity in procedural law regarding anticipatory bail is available to all, which similarity exists for the purpose of bail matters. Care can be taken for making provisions for excepting such areas which are affected by terrorism or even serious threat of law and order.
157. The judgment was reserved in these cases after hearing fairly lengthy arguments. It has taken some more time to deliver judgment as the matters had to be examined in depth from various angles and several parleys and discussions were held amongst us. Since, however, the matters were of great importance, the High Court Bar Association was permitted to intervene. Some other eminent counsel of this Court were requested to assist the Court. Sri Tapan Ghosh, Sri Anup Ghosh, Sri G.S. Chaturvedi and Sri. A.K. Singh on behalf of the petitioners, Sri A.D. Giri, Sri J.S. Sengar, Sri R.K. Jain and Sri D.S. Misra as intervenors, and, Sri Rakesh Dwivedi, Addl. Advocate General, Sri P.K. Bisaria, A.G.A., for the State have argued the matter with ability, sincerity of purpose and with impartial objective. This Court is beholden to them for the help rendered in deciding these matters.
158. A comparative study of the provisions of Old Cr.P.C. relating to grant and reliance of the persons on bail and the relative provisions in the New Code no room for doubt that stringency with regard to grant of bail in matters which are punish able with death or imprisonment for life was clearly envisaged before enacting Sections 436, 437 and 439 of the Cr.P.C. in the New Code corresponding to Sections 496,497,498 and 499, Cr. P. C. of the Old Code.
159. In this connection it may be recalled that by Act No. XXVI of 1955 the old Code was drastically amended and by Sections 94, 95 and 96; some notable changes were brought about in the then existing Sections 497,498 and 499.
For ready reference the said Sections of the Amending Act are quoted below :-
"94. Amendment of Section 497, Act V of 1898 - In Section 497 of the Principal Act - (a) in Sub-section (1).
(i) after the words "accused of, the words "or suspected of the commission of "shall be inserted; and
(ii) for the word "transportation" the word "imprisonment" shall be substituted;
(b) after Sub-section (3), the following Sub-section shall be inserted, namely :-
"(3 A) 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 cases 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."
"95. Amendment of Section 498, Act V of 1898 -
Section 498 of the Principal Act shall be renumbered as Sub-section (1) thereof and after Sub-section (1) as so re-numbered, the following Sub-section shall be inserted, namely :-
"(2) A High Court or Court of Session may cause any person who has been admitted to bail under Sub-section (1) to be arrested and may commit him to custody."
"96. Amendment of Section 498, Act V of 1898-
In Section 499 of the Principal Act, after Sub- section (2), the following Sub-section shall be in-
"(3) For the purpose of determining whether the sureties are sufficient, the Court may, if it so thinks fit, accept affidavits in proof of the facts contained therein relating to the sufficiency of the sureties or may make such further inquiry as it deems necessary."
160. It appears necessary to refer to the 'objects and reasons' behind Sections 436 to 439 of the new Code so that distinction in exercising powers of granting bail between cases which are punishable with death or imprisonment for life and other cases may be noticed. But the objects and reasons regarding introducing provision for 'anticipatory bail' would be dealt with little later.
"39. A. The broad principles adopted in the Code in regard to bail are (1) bail is a matter of right, if the offence is bailable, (ii) bail is a matter of discretion, if the offence is non-bailable; (iii) bail shall not be granted by the Magistrate if the offence is punishable with death or imprisonment for life; but if the accused is a woman, or a minor under the age of 16 years, or a sick or infirm person, the Court has a discretion to grant bail; (iv) the Court of Session and the High Court have a wider discretion in granting bail, even in respect of offences punishable with death or imprisonment for life.
39.2. Under Section 496, the right to bail is absolute in case of bailable offences it has been suggested that where a person released on bail has absconded or has failed to appear before the Court on the date fixed, he shall not be entitled to bail, when brought to Court on-any subsequent date. We recommend the acceptance of this suggestion, and further-recommend that refusal of bail under such circumstances shall be without prejudice to any action that may be taken under Section 514 for forfeiture of the bail bonds."
161. It may be noticed that Sub-section (2) is added as per recommendation of the Commission. The "object and reasons" further proceeds to note as under:-
"With a view to make it more difficult for persons accused of grave offences to get released on bail by an ex parte order, and be in a position to hamper investigation, provision is being made that in every case where the offence is punishable with death or imprisonment for life, or is triable exclusively by a Court of Session, no Court shall grant bail except after giving notice in writing of the bail application to the Public Prosecutor, if this is not done, reasons for not giving such notice are to be recorded-in writing."
162. Having thus noticed the object and reasons, the actual provisions enacted may be examined so that the discussion following is easily appealable.
163. Section 436 Cr. P. C. makes the release on bail mandatory when an accused is produced before a Court or is detained without warrant by an Officer-in-Charge of a Police Station if such accused is prepared to give bond. The discretion of the said Police Officer or the Court to release such an accused on his executing a bond without sureties is made absolute by the first proviso to Sub-section (1) of Section 436, Cr. P. C. Sub-section (2) thereof empowers forfeiture of the bonds if the accused has failed to comply with the directions.
164. The provisions of Section 137, Cr. P.C., would be very relevant for the discussions following. It may be noted that by virtue of Sub-section (1) the power to grant bail has been extended to an officer or a Court (other than the High Court or the Court of Sessions) who or which has arrested and detained and accused in a non-bailable offence and before whom he appears or is brought. Sub-clause (1) is an absolute bar on such police-officer or Court to release the accused on bail if "there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life." Sub-clause (2) is yet another bar on the exercise of the said power by the Court or the Officer if the accused had been "previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more or he had been previously convicted on two or more occasions for a non-bailable and non-cognizance offence." After these two Sub-clauses there are three provisions. By the first proviso the Court is authorised to release even an accused covered by Clause (i) or Clause (ii) if the accused is under 16 years or is a woman or is sick or infirm The second proviso again creates an exception empowering the Court to grant bail even to those accused who are covered under Clause (ii) if the Court is satisfied that is just and proper so to do for any other special reason. The third proviso, however, indicates a guideline saying that mere pendency of an identification parade shall not be sufficient ground for refusing the bail.
165. Then came Sub-sections (2) and (3) respectively which are of vital importance for the discussions following. Sub-section (2) empowers 'such officer' or 'Court' at any stage of the investigation, enquiry or trial, as the case may be, to grant bail to an accused when it is found that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further enquiry into his guilt. The latter part of this Sub-section empowers such officer or Court to direct the release as mentioned in the first part thereof, on execution by him of a bond without sureties for his appearance subject to the provisions of Section 446-A so long as such an enquiry remains pending.
166. It appears that Sub-section (2) may be squarely applicable to cases where at the initial stage the said accused's complicity is not disclosed either through the allegations in the F.I.R. or the statement recorded by the Investigating Officer - be that of the informant or of some other witness, but there exists suspicion against him and, the case appears to be such where further enquiry into "his" guilt is necessary. This Sub-section is applicable to all non-bailable offences, In fact this is the only Sub-section where a suspect who is not an accused till that stage may come and claim bail on the ground that on the basis of the information and materials existing, there are no reasonable grounds for believing that he has committed a non-bailable offence. In other words, the applicability of this Sub-section would be out of question where such information and materials provide reasonable grounds for believing that the accused has committed a non-bailable offence.
167. Sub-section (3) contains provisions empowering only the Court (emphasis by the Court) to impose conditions if the accused is suspected of commission of an offence punishable with imprisonment which may extend to seven years or more or an offence under Chapter-VI, Chapter-XVI or Chapter XVII of the Indian Penal Code or abatement of, or conspiracy or attempt to commit any such offence.
168. Therefore, a combined reading of Sub-sections (1), (2) and (3) leave no room for doubt that the power of releasing an accused on bail under Sub-section (1) lies only with the Court. While exercising such powers it may impose those conditions which have been enumerated in Sub-section (3) regarding offences under Chapter-VI, XVI or XVII of the I.P.C. or their abatement, conspiracy or attempt. Let it be made clear at once that the moment a challan of an accused after arrest by a police officer is sent or forwarded to Court, the custody of the Court begins. Therefore, the right to hear bail application of such an accused is that of the Court alone and none else.
169. The Supreme Court has extensively dealt with the scope of Sections 437 and 439, Cr. P. C. in Gurcharan Singh, AIR 1978 SC 179. It may be mentioned here that Sub-section (1) of Section 437, Cr. P. C. was amended and reframed vide Cr. P. C. (Amendment) Act, 1980 (Central Act No. 63 of 1980) w.e.f. 23-9-1980, though the intendment of original Sub-section (1) was maintained. Slight . amendments were also made in Sub-section (2) and Sub-section (4) of Section 437, Cr. P. C. though the original intendment of those two Sub-sections was also maintained. Therefore, inspite of the amendments, the law laid down in Gurcharan remains as effective today as it was, when pronounced. Some invaluable observations in Gurcharan may be quoted here for cutting short the discussion :-
"...Under the new as well as the old Code an accused after being arrested is produced before the Court of Magistrate. There is no provision in the Code whereby the accused is for the first time produced after initial arrest before the Court of Session or before the High Court (Para-13).
"...Since the Sessions Judge or the High Court will be approached by an accused only after refusal of bail by the Magistrate, it is not possible to hold that the mandate of the law of bail under Section 437, Cr. P. C. for the Magistrate will be ignored by High Court or by the Sessions Judge. (Para-14) "...Whenever a person is arrested by the police for such an offence, there should be materials produced before the Court to come to a conclusion as to the nature of the case he is involved in or he is suspected of. If at that stage from the material available there appears reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life, the Court has no other option than to commit him to custody. (Para-21).
"...In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to Sub-section (3) of Section 437, Cr. P. C. if it deems it necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation or fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegatipn against him of an offence punishable with death or imprisonment for life, he has ordinarily no option but to refuse bail subject however, to the first proviso to Section 437(1), Cr. P. C. and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extra-ordinary occasion since there will be some materials at the stage of initial arrest for the accusation or for strong suspicion of commission by the person of such an offence."
170. By referring to the amendments brought about in the year 1955, the 'objects and reasons' in enacting bail provisions and Section 437 in the new Code and examining the provisions of entertaining bail application in detail, it is easily inferable that now the Magistrates have a broader power to consider favourably the plea for release on bail in all matters covered by Sub-section (3) of Section 437, Cr. P. C. Similarly, release even on personal bond is possible vis-a-vis an accused or suspect whose case may be covered by Sub-section (2) of Section 437, Cr. P. C.
171. In no other case have the Magistrates been empowerd to grant bail. The applicability of the bar created by Sub-section (1) of Section 437 is relaxable only to the extent of allowing "discretion" regarding those covered by the "first-proviso" which in practice, the Magistrates do and shall rightly leave open for the superior Courts to exercise under Section 439, Cr. P. C. Even the power to release on bail any accused or suspect who may be covered by Clause (i) of Sub-section (1) of Section 437, Cr. P. C. for any "special-reason" is not available to a Magistrate because the "Second-proviso" itself has restricted applicability of "special reasons" clause to those who may be covered only by Clause (ii) of Sub-section (1) of Section 437, Cr. P. C.
172. The discussion aforesaid relating to the provisions of bail contained in the Cr. P. C. shows that a person applying for bail shall either have been arrested or surrendered, i.e. appeared before the Court. To be in custody is the pre-condition for entertaining of an application for bail. The very word 'bail' and 'release' of a person on bail would-presuppose the person being in jail or judicial custody.
173. It may be useful to be reminded here that on arrest, a person has to be brought before the Magistrate for remand within twenty four hours. Likewise, if a person notices chances of being arrested in a given case, he may 'surrender' before the Magistrate concerned. Therefore, the use of the word "custody" in the context of Sections 437 and 439, Cr. P. C. is physical control i.e., physical presence of the accused in Court with submission to the jurisdiction and orders of the Court and, therefore, he can be said to be in custody not merely when the police arrests him, he can be said to be in judicial custody when he surrenders. See Niranjan Singh, AIR 1980 SC 785. If a case is registered against an offender and a follow-up investigation is initiated, or if an investigation has emanated qua the accusation levelled against the person appearing or surrendering or being brought before the Magistrate, the Magistrate in exercise of the powers conferred on him by Section 167(1), Cr. P. C. can keep that offender or person under judicial custody in case the Magistrate is not inclined to admit that offender or person to bail. See-Deepak Mahajan, AIR 1994 SC 1775. It is not in dispute that under the Cr. P. C. the "investigation" consists generally of the following steps :-
(i) Proceeding to the spot.
(ii) Ascertainment of the facts and circumstances of the case.
(iii) Discovery and arrest of the suspected offender.
(iv) Collection of evidence relating to the Commission of the offence.
(v) Formation of the opinion as to whether on the materials collected there is a case to place the accused before the Magistrate for trial and if so, taking necessary steps for the same for filing charge-sheet.
See H. N. Rishubd, AIR 1995 SC 196.
174. It will be relevant to mention here that in case of under trials charged with the commission of offence, the Court is generally called upon to decide whether to release him on bail or to commit him to jail. This decision has to be taken mainly in non-bailable cases having regard to the nature of the crime, the circumstances in which it was committed, the background of the case, the possibility of his jumping bail, the impact that his release may make on the prosecution witnesses, its impact on society and the possibility of retribution etc. See-B. Subbaro, AIR 1989 SC 2292. There is no hard and fast rule regarding the grant or refusal of bail, each case has to be decided and considered on merits. It may be necessary for the Courts to consider the further materials by the Investigating Agency by referring to the statements of the witnesses in the diary while considering prayer for bail. (See-A. C. Digey) 1990 (l)(JT)28 SC :(1990 Cri LJ 788).
175. It may now be useful to deal with the intervening matter relating to the grant of interim bail. In the Cr. P.C. the provision to grant bail for an interim period is contained in only one provision, i.e., Section 389(3), Cr. P. C. A convicted person can be granted bail by the trial Court for a fixed period (if the pre-conditions exist) to enable him to file appeal before the Appellate Court and obtain bail order from that Court in the appeal. There is and was no other similar provision in the Cr. P. C.
176. Let there be no confusion in what the expressions such as 'interim-bail' or 'temporary bail' or 'time-bound bail' or parole' or 'fixed term bail', etc. convey. These types of bail orders are often passed by competent Courts for "special reasons", for example, treatment of accused or his close relatives or appearing at an examination or interview, or performing marriage of son or daughter, or file nomination in some elective process, or the like. These "special-reasons" demand the physical presence of the accused somewhere outside the jail or custody. As noted above such "special-reasons" are traceable to the second-proviso to Sub-section (1) of Section 437, Cr. P. C. It is notable that even grant of bail under Section 167, Cr. P. C. is reviewable if cancellation thereof is prayed after filing of chargesheet. (See-Aslam B. Desai, AIR 1993 SC 1). Similarly, if bail has been granted during trial, it terminates on conviction and if bail has been granted pending appeal, it ceases on the dismissal of the appeal. Likewise, if a bail is granted to an accused for "special-reasons" for a fixed term or for achieving special purpose, the release on bail would end completion of that term or achieving of that purpose. It may be pointed out that "release on bail" necesssry ily connotes a period for which the bail would operate-may be, the period is fixed in the bail-order or is inferable from the stage of the case when the bail order is passed. Therefore, fixed term or short term bail orders can by no means be said to be "interim bails," i.e., bail granted by way of interim measure during pendency of bail application itself. Similarly, release on personal bond only or on personal bond plus surety bonds are only two different forms of being released on bail, the purpose of both being to secure the presence of the accused on future dates pending investigation, enquiry, trial or hearing of appeal, etc., as the case may be.
177. Therefore, while considering an application of an accused or suspect for granting bail, no court can overlook the statutory provisions contained in Sections 437 and 439, Cr. P. C. which alone are attracted when bail application is to be decided. Thus, a Court of Sessions or this Court, when exercising powers of bail as conferred by Section 439, Cr. P. C, shall have to adhere to the provisions contained in Section 439 and take the clue from provisions in Section 437, Cr. P. C. because the provisions in Section 437, Cr. P. C. are necessary preclude to the exercise of right of an accused praying for exercising power by Court of Sessions or High Court to consider such person's bail application. Therefore, the right to "appear" is available to an accused under Section 437, Cr. P. C. upon which he can be entitled to move a bail application after surrendering to Courts custody which for all practical purposes is equivalent to his "arrest" and production before the Court for remanding him to custody. Thus, in dealing with an application for release on bail the concerned Court has to hear the prosecution; 'and the State or the complainant has the right to place facts and circumstances before the Court in order to oppose the prayer for release on bail. Law does not permit any compromise on these mandatory provisions. The examination of facets and circumstances by the Court being thus pre-requisite for deciding a bail application, the release of an accused or suspect before facts and circumstances can be produced, by taking recourse to what is referred to as "interim-bail" would be without any legal sanction and thus not permissible.
178. It is undoubtedly true that speedy trial is one of the rights of an acccused which would encompass all stages such as investigation, enquiry, trial, appeal, revision or retrial. The period of remand and pre-conviction detention of an accused should be as little as possible that his worry and anxiety is minimised and his ability to defend himself is not diminished but even this right would not permit the accused to get an order of any Court much less of High Court to fix an outer limit for any of the different stages of the trial noted above. (See-Antuley (14) JT (6) SC 43 ] (sic). This means that an accused or suspect in custody has a right to get the bail application disposed of by competent Court as early as possible in accordance with law.
179. It has to be reiterated that provisions of bail are essentially part of the law of procedure and must be regulated by the law under which particular trial is held. The commission of an offence does not ipso facto carry, with it a right of bail. Such right is dependent on the provisions in the statute and the statute alone can be looked for any right which the offender may claim. (See Salig Ram, AIR 1943 All 26. In fact, the decision in Antulay (supra) (sic) reinforces the said view of the Full Bench of our Court in Salig Ram (supra).
180. This being the factual and legal position and 438 Cr. P. C. being not available, the counsel for the petitioners and other counsel espousing the petitioners' cause, fell back upon the provisions contained in Articles 21 and 22 of the Constitution of India in order to claim the right to file writ petition to seek a perior order of this Court for getting "bail application considered the same day" by the lower Courts when the accused surrenders before it and moves such an application. In this very connection it was argued that right to hear the prosecutor or the State while considering bail application under Section 437, Cr. P. C. is not imperative and, therefore, if the Court wants to know the materials or allegations against that accused, the Court should be asked to grant 'interim-bail' for the period such materials or allegations are placed. Only when and if, bail application is rejected on merits that the accused may be sent to jail and never before that. In order to justify the arguments regarding 'interim-bail' it was argued that since there was no specific provision prohibiting the grant of "interim-bail", such power exist in the Courts. It was further argued that in cases where bail cannot be granted by Magistrate, interim bail should be granted to enable the accused bail to apply for bail before the Sessions Court and that Court should be asked to follow the same procedure thereafter as noted above regarding offence in which the Magistrate in empowered to grant bail.
181. The principal objection on behalf of the State of U. P. was that once the anticipatory bail provisions have been deleted, Article 226 of the Constitution of India cannot be used by any accused as a substitute for Section 488, Cr. P. C. The argument proceeds that an order for bail application "to be decided the same day' can not be passed because the accused would neither be under arrest nor in judicial custody and it would amount to hearing an application for 'anticipatory-bail'. It was argued that the State is not interested in delaying any bail application but must be afforded sufficient opportunity to exercise its statutory right to oppose a prayer for bail. It was emphasised that the discretion to hear and decided an application for bail, of the Magistrate or the Sessions Judge, as the case may be, depending upon the gravity of the offence making it subjectmatter of Magisterial trial or Sessions trial, cannot be thwarted or interfered with in any manner by a superior Court. It was then argued that there being no provision for granting interim bail except perhaps the offences covered within Section 437(2), Cr. P. C, no accused can be directed by the subordinate Courts to be released on interim bail pending final decision of the bail application.
182. Now, the provisions of Cr. P. C. having been examinedin detail, all the arguments of learned counsel why 'bail-consideration-same-day' should be declared permissible to a citizen on the strength of Article 21 and 22 of the Constitution have also been noted. Hon'ble B. M. Lal, J. has referred practically to all the decisions relevant on Articles 21 and 22 and has so aptly highlighed the salutory objectives behind those provisions and those ruling which have to be respectfully concurred with.
183. But several other decisions which have the effect of balancing individuals rights vis-a-vis the rights of the society and the community have also to be noticed. Once it is permissible in law to impose reasonable restrictions in the exercise of individual's liberty, can any one bye-pass such laws and blow the trumpet of individual liberty at such a high pitch that voice of the said law is drowned completely ? Can both these instruments be prayed so loud as to deny either to have audience ? There is nothing more jarring to the ears than an ill measured and out of scale symphony; Strings of both instruments have to be tuned so melodiously that it helps to achieve sublimity and serenity all around in the society.
184. Simultaneously one will have to examine how far. would it be justified to frame always question regarding powers of Courts, totally ignoring the primary question of powers, i.e., rights of individuals ? Existence of a power but non exercise thereof e.g., powers to grant bail in Habeas Corpus petition stand so aptly laid down in Ram Balak, AIR 1966 SC 1441 :-
"...in dealing with Habeas Corpus petitions under Article 226 of the Constitution when orders of detention passed under Rule 30 of DIR are challenged, the High Court has jurisdiction to grant bail but the exercise of the said jurisdiction is invariably circumscribed by considerations which are special to such proceedings...."
185. One has not to be told that life without dignity may be dis-liked by all concerned and the observations of the Hon' ble Supreme Court must be held to connote that right to live with dignity has always been included within the fundamental right conferred by Article 21 and the like constitutional provisions. Those rulings do not add anything to those constitutional provisions but a broader interpretation of those provisions has so rightly been projected by the Hon'ble Apex Court.
186. It has to be noticed that rule of law constitutes the core of our Constitution and it is the essence of the Rule of law that the exercise of powers by the State, whether it be legislative or the executive or any other authority, should be within the constitutional limitations. (See D. C. Wadhwa, AIR 1987 SC 579.) Keeping in view this salutary principle, the Courts have always acted with restraint in defining its own powers though the very Courts have gone to any extent in using its powers under Article 226 of the Constitution of India in order to protect the fundamental rights of the citizens and uphold the rule of law. Arms of the High Courts are long enough, when they exercise prerogative discretionary powers under Article 226 of the Constitution, to reach injustice wherever it is found in the judicial or quasi judicial process of any Court or Tribunal or authority within their jurisdiction but it is hedged with self-imposed limitations. (See P.P. Sharma, AIR 1991 SC 1260.) The High Courts in our country are established under the Constitution. Under it, Article 225 of the Constitution of India preserves the jurisdiction, including enhanced jurisdiction, which existed on the date the Constitution came into force and Article 226 of the Constitution enlarged it by not only making it custodian of fundamental rights of a citizen but as repository of powers to reach its arms to do justice. (See M. V. Elizabeth, AIR 1993 SC 1014.
187. Interpretation of Constitutional provisions and statutory law is one of the primary duties of this Court. The purpose of such interpretation is to sustain law. The Court must interpret the words or the language in the statute to promote public good. Criminal law primarily concerns with social protection and prescribed rules of behaviour to be observed by all. Law punishes fol deviance, transgression, violation or omission. Liberty of the individual, and security and order in the society or public order, are delicate and yet paramount considerations. Under-emphasis on either would impede harmony and hamper public good as well disturb social weal and peace. To keep the weal balanced, must be primary duty of the judiciary. In other words, depriving one of his precious individual liberty can only be according to law. The intendment of Section 57, Cr. P. C. appears to be that investigation needs completion within twenty four hours. Some more time may have to be spent in detention than twenty four hours. (See Aslam, AIR 1993 SC 1.
188. The functions of the judiciary in the Course of investigation by the police should be complementary and full freedom should be accorded to the investigation to collect the evidence connecting the chain of events leading to the discovery of the truth viz. the proof of commission of the crime. Often individual liberty of a witness or an accused person is involved and inconvenience is inescapable and unavoidable. The Investigating Officer would conduct in depth investigation to discover truth while keeping in view the individual liberty with due observance of law. Investigation of a crime is not of a routine duty, in particular in tractable terrains of high places committed with dexterity and sophistication. The unfounded threats of mala fides or bias often deters a sincere and dedicated investigator to make indepth investigation causing catastrophic incursion on the effectivity to connect offender with crime which would serve the detector's purpose. (See P. P. Sharma-ibid), AIR 1991 SC 1260.
189. If the police-officer transgresses the circumscribed limit and improperly and illegally exercises his investigating powers in breach of any statutory provisions causing prejudice to the personal liberty and property of a citizen, the Courts on being approached by the person aggrieved for the redressal of any grievance, have to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the merely of police echelon. (See Bhajan Lal), AIR 1992 SC 604.
190. Even when a citizen is under threat of being arrested in connection with a preventive law the proposed detention on the basis of a detention order can be challenged even before the service of the said order on the would-be-detenu and in such a case claims of the State on the one hand and fundamental rights of the citizen said to be infringed on the other, have to be balanced by the Courts. (See N. K. Bapna v. Union of India, 1992 (3) SCC 512). Even if it be assumed that in a matter there are several questions of law to be deeply gone into and many aspects have to be examined in a criminal case registered against certain persons, those persons can raise such question and challenge the proceedings against them at the appropriate time before the proper forum. No third party at any lime convenient to him can be permitted to raise those questions at intermediary stages. In a matter under investigation, High Courts exercising suo motu power, cannot interfere with the investigation and thus assume jurisdiction to quash the F.I.R. and allied proceedings. (See Janta Dal, 1991 (3) SCC 756).
191. The functions of the police in investigating the matter are its statutory functions and the superintendence vests in the State Government. The High Court would not be justified normally to interferei with the same. The provisions contained in Sections 57 and 167, Cr. P. C. manifest the legislative anxiety that once a person's liberty has been interfered with by the police arresting without a Court's order or a warrant, investigation must be carried out with utmost urgency. (See Jayant Vitamins), AIR 1992 SC 1930. Even if a citizen is arrested under the provisions of Customs Act or Foreign Exchange Regulation Act though not an accused and yet called away from his house and is questioned by the authorities without assistance of his lawyer or friend, no violation of Article 21 of the Constitution of India can said to have been made. Refusal of lawyer's or friends' assistance to such persons is to be upheld even on applying the "just, fair and reasonable" test. (See-Pool Pandi, AIR 1992 SC 1795). An arrested person may get informed a friend or relative for his welfare on knowing that he is under arrest and this right of arrested person shall be conveyed to him by the police officer concerned regarding which an entry shall be made in their relevant diary and when the arrested person is produced before the Magistrate for remand, the Magistrate will have to satisfy himself that these requirements have been complied with (See Jogendra Kumar, AIR 1994 SC 1349).
192. There is no denying the fact that a lethargic and lack-a-daisical manner of investigation over a prolonged period makes an accused in a criminal proceeding to live every moment under extreme emotional and mental stress and strain and to remain always under a fear psychosis. While so, nonetheless, there may be crimes and offences of grave magnitude involving members of underworld with their tentacles spread over various parts of the country or even aborad, investigating which may involved considerable time for bringing the culprits to book. It may not be possible to fix rigid principles for speedy investigation or to stipulate any arbitrary period of limitation within which investigation in a criminal case should be completed. (See Pavithran).
193. It may now be mentioned that Hon. B. M. Lal, J. has referred to Articles 21 and 22 of the Constitution, decisions of the Supreme Court in sheela Warse, AIR 1983 SC 378 and Joginder Kumar, AIR 1994 SC 1349, King Emperor v. Khaja Nasir Hussain, AIR 1945 PC 18, R.P. Kapoor, AIR 1960 SC 866, S.N. Sharma, AIR 1970 SC 786 and Sohan Singh, AIR 1974 SC 1146 and then has observed :-
"...not that in each and every cognizable matter Police Agency has been given blank chit to arrest an accused and that is why statutory restriction has been imposed under Section 157 and arrest is made discretionary."
(Emphasis supplied) These observations have been repeated at pages 24 and 33.
194. About these observations it has to be clarified at once that no discretion in law is available to an investigating officer so as not to arrest one accused or suspect in one case and arrest another accused or suspect in another case. Once disclosure of cognizable offence is made, arrest of the accused or suspect is a "must", for there is no other known method by which he may be brought before the Court for trial. The words "if necessary" in Section 157 may at best make available a discretion to an investigating officer in a given case to defer arresting an accused or suspect if there is reasonable doubt about his identity. It is not possible to subscribe to the view that the words 'arrest is made discretionary' any other connotation may be extendable than what is noted in the preceding lines.
195. Then Hon'ble B. M. Lal, J. after referring to Nandini Satpathi, 1978 SCC (2) 424 and Sections 167, 173, 169, 303 and 309 and 437, Cr. P. C. has held as under :-
"It does not borne out if enquiry is not possible the same day, the accused be released same day on bail...Section 437 contains stringent provision, it must be literally and strictly construed."
196. With respect, this view is correct exposition of law and has to be concurred.
197. His Lordship after observing that the word 'law' has been held to be procedure established by law, and citing U. P. Unni Krishnan, 1993 (1) JT 474, Olga Tellis, AIR 1986 SC 180 (sic) and Sunil Batra, 1978 (4) SCC, has again rightly observed that:
"Considering the dictum laid down in above mentioned cases it is clear that speedy trial includes the right to get bail application decided expeditiously and if possible the same day...".
and then after nothing the ratio in Union Carbide, AIR 1992 SC 248, M. V. Elizabeth, AIR 1993 SC 1014, Admn. v. D. Dhankar, AIR 1992 SC 184, his Lordship has held as under :-
"...In our opinion if the entire material collected against the accused or even sufficient material is available so as to adjudicate upon the bail application on the same day, then the Courts are expected to dispose of bail applications expeditiously, if not impossible, the same day and this discretion is to be applied by the concerning Courts. To this effect there is no difficulty."
198. These observations of the Hon'ble Judge are respectfully concurred with. Thereafter, His Lordship observes:
"fixing the time schedule for considering the bail application cannot be directed by this Court...."
199. However, Hon'ble B. M. Lal, J. has then rejected the argument of the respondents that there is no provision for granting interim bail to an accused, and thereafter, His Lordship has made observations in three findings which are so very different from the aforesaid observations and findings which have respectfully been concurred with as noted above, that total disssociation with those observations has to be unhasitatingly recorded. Those observations are contained and shown in block letters in the findings quoted below;
(1) Last para at page 23-
"In this regard it is sufficient to say that THE PROVISION OF GRANT OF INTERIM BAIL IS IMPLICIT IN THE MAIN PROVISION WHICH, SPEAKS OF BAIL AND THAT IS WHY BAILS HAVE BEEN GRANTED BY THE APEX COURT. Not only in bail matters, but also in maintanance and other matters on the same analogy, interim reliefs have been granted. (See SMDK Pasha v. Government of Andhra Pradesh, (1989) 4 JT 366, Ghanshyam Das, (1982) 3 SCC 389, etc...".
(2) First para page 36:
"...Indeed, in appropriate cases, while considering bail applications under Section 437 of the Code, taking into account the attending circumstances narrated in the bail application and subject to availability of police papers to the satisfaction of the Court, after bearing the prosecution and accused, if the Court is satisfied with the case, it may at its wisdom, pass necessary orders same day, OR IN THE EVENT OF ADJOURNMENT, IN RAREST OF RARE CASE IN EXTREME CIRCUMSTANCES ILLUSTRATIONS OF WHICH CAN NOT BE FORMULATED, MAY, AFTER ONLY RECORDING COGENT REASONS THEREFORE, GRANT INTERIM BAIL TO MEET THE ENDS OF JUSTICE. Otherwise, the provisions of Article 21 of the Constitution and concerned provision of the Code, would become lifeless, absurd, stultifying, self defeating, jettisoned and a decorative piece of the statute book." (The words quoted in capital letters cannot be countenanced.
(3) Third parra at page 37;
"ACCORDINGLY, THE VIEW TAKEN IN DF. HIDAYAT HUSAIN KHAN'S CASE 1992 CRI LJ 3534 (SUPRA), TO THE EXTENT IT FIXES OUTER LIMIT FOR DISPOSAL OF BAIL APPLICATION SAME DAY AND DIRECTS FOR RELEASING THE APPLICANT ON BAIL IN THE EVENT OF FAILURE TO DISPOSE OF BAILAPPLICATIONTHESAMEDAY,STANDS OVERRULED AND THE VIEW TAKEN IN NOOR MOHAMMAD'S CASE (SUPRA) TO THE EXTENT IT IS IN CONFIRMITY WITH THE CONCLUSIONS ARRIVED AT BY US ABOVE, IS CONFIRMED.
200. It however appears that the four cases referred to by Hon'ble B. M. Lal, J. in order to come to the conclusion that an interim bail is implicit in the main provision which speaks of bail and that is why interim bails have been granted by the Apex Court, do not really lay down anything on the basis of which the said finding can be recorded. In Tahira Begum, (1982) 3 SCC 374 a writ petition under Article 32 of the Constitution of India was under consideration by the Hon'ble Supreme Court. It has been observed that "a perusal of the writ petition indicates that the (sic) has good prima-facie ground. It was further observed that adjournment was sought by the State. For these two reasons the Hon'ble Supreme Court directed provisional release on furnishing a surety in the sum of Rs. 10,000/- with two sureties. Likewise in Ghanshyam Das Jain Hon'ble Supreme Court was considering a writ petition filed under Article 32 of the Constitution of India in which the question of vires was thought not necessary to be decided and the petitioner was directed to be released on bail in the event of his arrest. In Miss Harsh Sawhnay, AIR 1978 SC 1016, the Hon'ble Supreme Court was considering an appeal against a judgment of the Delhi High Court. From the facts it transpires that perhaps her bail application, or, may be anticipatory bai1 applieation-which provision was applicable in Delhi-was rejected by the Delhi High Court and hence the Appeal was taken to the Hon' ble Supreme Court in which the appellant was directed to be released on bail. In S.M.D. Kiran Pasha, (1989) 4 JT 366, it was held that Article 226 of the Constitution of India empowers High Courts to issue any person or authority or Government writs for enforcement of rights conferred by Part-Ill of the Constitution. It was further observed that High Courts could pass interim orders of injunction, stay or any other manner for giving protection of life and personal liberty if Article 21 was being affected. These cases therefore, cannot be an authority for the proposition that power to grant interim bail exists because of the existence of the power to grant bail. As noted above during the relevant discussion, bail would always mean directing a person to come out of jail or remain out of custody. There can not be anything 'interim' in that regard because allowing or rejecting a bail application means that the applicant comes out on furnishing bonds or remains inside the jail.
201. In spite of sincere all our efforts, this humble self is not able to agree with the aforesaid observations of his estemed elder brother, because those observations do not appear to be in consonance with logical progression of thoughts beginning with His Lordship's earlier findings recorded in the paragraphs preceding. It is sincerely regretted that the aforesaid observations have to be specifically dissented from in view of the factual and legal position which have been quoted in this judgment earlier.
202. Further in the following lines, in last para at page-33, Hon'ble B. M. LAL, J. has expressed his Lordship's anguish which may have generated or become contributing factors for making the aforesaid observations:- .
"...In this context we may further observe that these days it is being seen that political parties are not in a position to provide stable popular Governments for the full term of five years, with the result the vesed interest often misuse police powers to subserve their own purposes for personal vendetta and the police officials under pressure of vested interests deliberately rope their rival group for oblique motives."
203. With greatest respect to the esteemed brother, the undersigned feels that in about 47 years of democratic Governments in our country the said form of political system has nearly matured itself. Perhaps untimely changes in some Governments may be due to the fact that polarization of forces may be taking place. However, all these and allied questions may be examined appropriately by political scientists. Neverthless, there has been no dearth of honest police officials who have sacrificed their lives in resisting pressure from any corner-political, official or personal in investigating matters entrusted to them. Likewise, there have been officers who for very shabby and insignificantly ephimiral reasons, have flouted their official position and misused the powers conferred on them by law by wrongly arresting individuals. It appears that such types of personal aberrations on the part of individual Investigating Officials or for that matter, any officer, would always exist in every form of society and in every form of Governmental system. Law must therefore be judged from what the intention of the Legislature in enacting particular provisions appear to be. No legal provision should be interpreted in a manner so as to extend its field of operation in spheres where it is not intended to operate if normal meaning of the words are taken into account.
204. In view of the ever vigilant eves of this Court, no honest, peace-loving and respectable citizen of our motherland needs to be afraid of any infringement of his individual liberty, dignity or even privacy. If ever any action calculated to impair any of the three rights by any police officer, or executive authority or any unscrupulous politician is brought to its notice, this Court shall pass orders and issue directions so as to reach the ends of justice and protect those rights. Being the Court of record and the custodian of Constitutional rights of citizens, never has this Court shirked that responsibility which has been entrusted to it by the Constitution itself through Articles 225, 226 and 227 thereof. (See Swapan Kumar), AIR 1965 SC 949 (sic). It may be interesting to note here that the Americans, who claim to be great protagonists of human rights and liberty, which claim is disputed by many for the black and white racial discrimination dominating the Americal society, have authorised pre-trial custody but have regulated it by their Bail Reform Act of 1984. One Montalvo Murillo, a suspect held in pre-trial custody on criminal charges, posted a risk of flight and a danger to the community. Because no condition of release could give reasonable assurance. against these contingencies detention was required by Bail Reforms Act, 1984. The Courts below directed release of Montalvo because there had been a failure to observe the Act's directions for timely hearing. On this matter being taken up the U.S. Supreme Court directed that "the Act does not require release" and so reversed the decision of the subordinate Courts. Montalvo had in the meantime turned fugitive. Therefore, their Lordships further directed that "if and when he is rearrested,...the Government may detain at once upon his rearrest without first seeking revocation of the existing release order." (See - United States v. Mantal vo Murillo, (1990) 495 US 711).
205. Kartar Singh v. State of Punjab, (1994) 2 SCC 569 (supra), is to provide more than enough safeguard that if contingencies appear so demanding, High Courts may in exercise of powers under Article 226 of the Constitution, may direct release on bail. These observations of-course, were made on the hypothesis that should such an extreme case come, the citizen's safety rests fully secure.
206. In Sanjay Dutt, (JT) 1994 (5) SC 540, this matter has been considered on brass facts. The famed actor is presently in jail under TADA Act though he was granted bail when challan had not come within time but was taken into custody after filing of the challan. The unanimous verdict of the Constitution Bench of the Supreme Court expressed through the articulate language of Hon'ble Mr. Justice J.S. VERMA, is :-
"A purposive construction promoting the object of the enactment but not extending its sweep beyond the frontiers within which it was intended to operate must be adopted keeping in view that a construction which exempts a person from its operation must be preferred to the one which includes him in it in view of the penal nature of the statute....
"One of the modification made in Section 167 of the Code by Section 20(4) of the TADA Act is to require the investigation in any offence under the TADA Act to be completed within a period of 180 days with the further proviso that the Designated Court is empowered to extend that period up to one year....This gives rise to the right of the accused to be released on bail on expiry of the said period of 180 days or the extended period....
"We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(b) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challans have been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure....If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order."
207. The few lines which have been emphasised by the undersigned are indicative that where an accused or suspect is in jail/custody, the bail matter HAS TO BE TACKLED WITHIN THE PROVISIONS REGARDING GRANT OF BAIL I.E. 167 OR 437/439, CR. P. C.
208. In view of the decision of the Hon'ble Supreme Court, there perhaps now remains no ambiguity at all on the points raised in these three petitions and regular legal procedure must be permitted to be followed when a citizen is an accused or suspect in a case registered as a non-cognizable offence at a Police-Station.
209. Having thus discussed the entire matter in pith and substance and in all possible details, final conclusions have to be drawn. In the cradle of experiences in these adolescent years of our independent Nation, the citizens have learnt so many things. We have to learn to develop our motherland into a body of individuals of healthy body, mind and vision. The process of learning for we the citizens, in whatever capacity we may be serving our nation, is a continuous process. In this connection Abraham Lincon's letter to his son's teacher, which has become a legacy for the sheer sincerity of the contents, may be usefully remembered by all, particularly, those who are important functionaries, only to remind what has to be learnt:
"He will have to learn, I know, that all men are not just, all men are not true. But teach him also that for every scoundrel there is a hero, that for every selfish politician, there is a dedicated leader. Teach him that for every enemy there is a friend, it will take time, I know, but teach him, if you can, that a dollar earned is of far more value than five found. Teach him to learn to lose and also to enjoy winning....
"Try to give my son the strength not to follow the crowd when everyone is getting on the band wagon. Teach him to listen to all men...but teach him also to filter all he hears on a screen of truth, and take only the good that comes through....
"Let him have the courage to be impatient, let him have the patience to be brave. Teach him always lo have sublime faith in himself because then he will always have sublime faith in marking."...
210. Swami Vivekanand, the adorable-heavenly personality whose life and teachings have made us feel proud of being Indian, has beckoned the countrymen by His clarion call:
"Arise, awake and stop not till the goal is reached.
...Awake from this hypnotism of weakness. None is really weak, the soul is infinite, omnipotent, and omniscient. Stand up, assert yourself, proclaim the God within you....Teach yourselves, teach everyone his real nature, call upon the sleeping soul and see how it awakes. Power will come, glory will come, goodness will come, purity will come, and everything that is excellent will come when the sleeping soul is roused to self-conscious activity....
At another place -
"This is the motherland of philosophy, of spirituality and of ethics, of sweetness, gentleness and love. These still exist, and my experience of the world leads me to stand on firm ground and make the bold statement that India is still the first and foremost of all the nations of the world in these respects.
"Did you ever hear of a country where the greatest kinds tried to trace their descent not to kings, not to robber-barons living in old castles who plundered poor travellers, but to semi-naked sages who lived in the forest ? Did you ever hear of such a land ? ....
"It is the same India which has withstood the shocks of centuries, of hundreds of foreign invasions, of hundreds of upheavals of manners and customs. It is the same land which stands firmer than any rock the the world, with its undying vigour, indestructible life. Its life is of the same nature as the soul, without beginning and without end, immortal; and we are the children of such a country."
211. Thus, there is no reason to be despondent a positive and optimistic outlook not only of law but towards our national heritage is bound to bring about equality amongst citizens in every respect. Let the law be interpreted normally, let law take its course: No distinction between man and man is possible and hence no special benefits can be extended to any accused who happens to be a Government servant.
212. In view of the aforesaid discussions, the decision in the Allahabad case, 1992 Cri LJ 3534 i.e., Dr. Hidavat Hussain Khan v. State of U. P. is overruled and the exposition of the legal position in the Lucknow case, i.e. Noor Mohd. v. State of U. P., is upheld except that since no administrative directions appear necessary, the said paragraph is overruled.
213. For the aforesaid reasons, all the three writ petitions are disposed of with the direction that if the petitioners are arrested and brought before the competent Court or voluntarily surrender before the competent Court, and apply for bail, their bail applications will be decided in accordance with law by the competent Court as expeditiously as possible.