TMI Blog2015 (8) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... d in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. High Court is bereft or devoid of power to jurisdiction upon a petition which firstly pleads surrender and, thereafter, prays for bail. The High Court could have perfunctorily taken the Appellant into its custody and then proceeded with the perusal of the prayer for bail; in the event of its coming to the conclusion that sufficient grounds had not been disclosed for enlargement on bail, necessary orders for judicial or police custody could have been ordained. A Judge is expected to perform his onerous calling impervious of any public pressure that may be brought to bear on him. There are no provisions in the CrPC contemplating the committal of a case to the High Court, thereby logically leaving its powers untrammelled. There are no restrictions on the High Court to entertain an application for bail provided always the accused is in custody, and this position obtains as soon as the accused actually surrenders himself to the Court. - surrender may also be accomplished by the commencement of any hearing before the Judge, however brief, where the accused person is forma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him on regular bail under Section 439 of the Code, on such terms and conditions as may be deemed fit and proper. 3. In the impugned Judgment, the learned Single Judge has opined that when the Appellant s plea to surrender before the Court is accepted and he is assumed to be in its custody, the police would be deprived of getting his custody, which is not contemplated by law, and thus, the Appellant is required to be arrested or otherwise he has to surrender before the Court which can send him to remand either to the police custody or to the Magisterial custody and this can only be done under Section 167 of CrPC by the Magistrate and that order cannot be passed at the High Court level. Learned Senior Counsel for the Appellant have fervidly assailed the legal correctness of this opinion. It is contended that the Magistrate is not empowered to grant bail to the Appellant, since he can be punished with imprisonment for life, as statutorily stipulated in Section 437(1) CrPC; CR No.290 of 2013 stands registered with P.S. Mahim for offences punishable under Sections 288, 304, 308, 336, 388 read with 34 and Section 120-B of IPC. Learned Senior Counsel further contends that since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail may be taken in case of non- bailable offence.- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a 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, but (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) 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 he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years: Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on bail under sub- section (1) or sub- section (2), shall record in writing his or its reasons or special reasons for so doing. (5) Any Court which has released a person on bail under sub- section (1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. (6) 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 case, 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. (7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered. 439. Special powers of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an accused being brought before a Court , the present provision postulates the accused being brought before a Court other than the High Court or a Court of Session in respect of the commission of any non-bailable offence. As observed in Gurcharan Singh vs State (1978) 1 SCC 118, there is no provision in the CrPC dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these Courts. The Legislature could have easily enunciated, by use of exclusionary or exclusive terminology, that the superior Courts of Sessions and High Court are bereft of this jurisdiction or if they were so empowered under the Old Code now stood denuded thereof. Our understanding is in conformity with Gurcharan Singh, as perforce it must. The scheme of the CrPC plainly provides that bail will not be extended to a person accused of the commission of a non-bailable offence punishable with death or imprisonment for life, unless it is apparent to such a Court that it is incredible or beyond the realm of reasonable doubt that the accused is guilty. The enq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be incorporated into law. Some salient features of these provisions are that whilst Section 437 contemplates that a person has to be accused or suspect of a non-bailable offence and consequently arrested or detained without warrant, Section 439 empowers the Session Court or High Court to grant bail if such a person is in custody. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word custody the same or closely similar meaning and content as arrest or detention. Furthermore, while Section 437 severally curtails the power of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher Courts have only the procedural requirement of giving notice of the Bail application to the Public Prosecutor, which requirement is also ignorable if circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. Also the detainer of a man s person by virtue of lawful process or authority. The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession. Term custody within statute requiring that petitioner be in custody to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty. U. S. ex rel. Wirtz v. Sheehan, D.C.Wis, 319 F.Supp. 146, 147. Accordingly, persons on probation or released on own recognizance have been held to be in custody for purposes of habeas corpus proceedings. 10. A perusal of the dictionaries thus discloses that the concept that is created is the controlling of a person s liberty in the course of a criminal investigation, or curtailing in a substantial or significant manner a person s freedom of action. Our attention has been drawn, in the course of Rejoinder arguments to the judgment of the Full Bench of the High Court of Madras in Roshan B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transpired only upon the interaction having the consequence of a significant deprivation of liberty. Further, in Berkemer vs McCarty 468 U.S. 420 (1984), a roadside questioning of a motorist detained pursuant to a routine traffic stop was not seen as analogous to custodial interrogation requiring adherence to Miranda rules. 12. It appears to us from the above analysis that custody, detention and arrest are sequentially cognate concepts. On the occurrence of a crime, the police is likely to carry out the investigative interrogation of a person, in the course of which the liberty of that individual is not impaired, suspects are then preferred by the police to undergo custodial interrogation during which their liberty is impeded and encroached upon. If grave suspicion against a suspect emerges, he may be detained in which event his liberty is seriously impaired. Where the investigative agency is of the opinion that the detainee or person in custody is guilty of the commission of a crime, he is charged of it and thereupon arrested. In Roshan Beevi, the Full Bench of the High Court of Madras, speaking through S. Ratnavel Pandian J, held that the terms custody and arrest are not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J spoke for the 2-Judge Benches, namely (a) Nirmal Jeet Kaur vs State of M.P. (2004) 7 SCC 558 and (b) Sunita Devi vs State of Bihar (2005) 1 SCC 608, and (c) Adri Dharan Das vs State of West Bengal, (2005) 4 SCC 303, where the Co-equal Bench has opined that since an accused has to be present in Court on the moving of a bail petition under Section 437, his physical appearance before the Magistrate tantamounts to surrender. The view of Niranjan Singh (see extracted para 49 infra) has been followed in State of Haryana vs Dinesh Kumar (2008) 3 SCC 222. We can only fervently hope that member of Bar will desist from citing several cases when all that is required for their purposes is to draw attention to the precedent that holds the field, which in the case in hand, we reiterate is Niranjan Singh. Rule of Precedent Per Incuriam: 13. The Constitution Bench in Union of India vs Raghubir Singh, 1989 (2) SCC 754, has come to the conclusion extracted below: 27. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller number of Judges? There is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence made by the two-Judge Bench based on the doctrine of binding precedent. 15. It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted as Balkrishna Dhondu Rani vs Manik Motiram Jagtap 2005 (Supp.) Bom C.R.(Cri) 270 which applied Niranjan Singh; the second is by a different Single Bench, which correctly applied the first. In the common law system, the purpose of precedents is to impart predictability to law, regrettably the judicial indiscipline displayed in the impugned Judgment, defeats it. If the learned Single Judge who had authored the impugned Judgment irrepressibly held divergent opinion and found it unpalatable, all that he could have done was to draft a reference to the Hon ble Chief Justice for the purpose of constituting a larger Bench; whether or not to accede to this request remains within the discretion of the Chief Justice. However, in the case in hand, this avenue could also not have been traversed since Niranjan Singh binds not only Co-equal Benches of the Supreme Court but certainly every Bench of any High Court of India. Far from being per incuriam, Niranjan Singh has metamorphosed into the structure of stare decisis, owing to it having endured over two score years of consideration, leading to the position that even Larger Benches of this Court should hesitate to remodel its ratio. 18. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... released on bail. In the appeal in hand this issue is not in focus; the kernel of the conundrum before us is the meaning to be ascribed to the concept of custody in Section 439 CrPC, and a careful scrutiny of Rashmi Rekha will disclose that it does not even purport to or tangentially intend to declare Niranjan Singh as per incuriam. Any remaining doubt would be dispelled on a perusal of Ranjit Singh vs State of M.P, where our esteemed Brother Dipak Misra has clarified that Rashmi Rekha concerned itself only with anticipatory bail. The impugned Order had therefore to remain in complete consonance with Niranjan Singh. It needs to be clarified that paragraph 14 of Sunita Devi vs State of Bihar (2005) 1 SCC 608, extracts verbatim paragraph 7 of Niranjan Singh, without mentioning so. The annals of the litigation in Niranjan Singh are that pursuant to a private complaint under Section 202 CrPC, the concerned Magistrate issued non-bailable warrants in respect of the accused, and subsequently while refusing bail to them had neglected to contemporaneously cause them to be taken into custody. In that interregnum or hiatus, the accused moved the Sessions Court which granted them bail albeit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions. In the present case, the police officers applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and maybe, enabled the accused persons to circumvent the principle of Section 439 CrPC. We might have taken a serious view of such a course, indifferent to mandatory provisions, by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail. The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused had submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigating agency. 20. In this analysis, the opinion in the impugned Judgment incorrectly concludes that the High Court is bereft or devoid of power to jurisdiction upon a petition which firstly pleads surrender and, thereafter, prays for bail. The High Court could have perfunctorily taken the Appellant into its custody and then proceeded with the perusal of the prayer for bail; in the event of its coming to the conclusion that sufficient grounds had not been disclosed for enlargement on bail, necessary orders for judicial or police custody could have been ordained. A Judge is expected to perform his onerous calling impervious of any public pressure that may be brought to bear on him. The Conundrum of Cognizance, Committal Bail 21. We have already noted in para 8 the creation by the CrPC of a hiatus between the cognizance of an offence by the Magistrate and the committal by him of that offence to the Court of Session. Section 190 contemplates the cognizance of an offence by a Magistrate in any of the following four circumstances: (i) upon receiving a complaint of facts; or (ii) upon a police report of such facts; or (iii) upon information received from any person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 93 which also only prohibits it from taking cognizance of an offence as a Court of original jurisdiction. This embargo does not prohibit the Court of Session from adjudicating upon a plea for bail. It appears to us that till the committal of case to the Court of Session, Section 439 can be invoked for the purpose of pleading for bail. If administrative difficulties are encountered, such as, where there are several Additional Session Judges, they can be overcome by enabling the accused to move the Sessions Judge, or by further empowering the Additional Sessions Judge hearing other Bail Applications whether post committal or as the Appellate Court, to also entertain Bail Applications at the pre-committal stage. Since the Magistrate is completely barred from granting bail to a person accused even of an offence punishable by death or imprisonment for life, a superior Court such as Court of Session, should not be incapacitated from considering a bail application especially keeping in perspective that its powers are comparatively unfettered under Section 439 of the CrPC. 22. In the case in hand, we need not dwell further on this question since the Appellant has filed an application pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a subordinate Court. Learned State counsel submits that the High Court in exercise of powers under Section 482 can convert the nature of custody from police custody to judicial custody and vice versa, but cannot pass an Order of first remanding to custody. Therefore, the only avenue open to the accused is to appear before the Magistrate who is empowered under Section 167 CrPC. Thereupon, the Magistrate can order for police custody or judicial custody or enlarge him on bail. On behalf of the State, it is contended that if accused persons are permitted to surrender to the High Court, it is capable of having, if not a disastrous, certainly a deleterious effect on investigations and shall open up the flood gates for accused persons to make strategies by keeping themselves away from the investigating agencies for months on end. The argument continues that in this manner absconding accused in several sensitive cases, affecting the security of the nation or the economy of the country, would take advantage of such an interpretation of law and get away from the clutches of the investigating officer. We are not impressed by the arguments articulated by learned Senior Counsel for the Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless such person is the informant who has lodged the First Information Report. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report Thereafter, in Shiv Kumar vs Hukam Chand (1999) 7 SCC 467, the question that was posed before another Three Judge Bench was whether an aggrieved has a right to engage its own counsel to conduct the prosecution despite the presence of the Public Prosecutor. This Court duly noted that the role of the Public Prosecutor was upholding the law and putting together a sound prosecution; and that the presence of a private lawyer would inexorably undermine the fairness and impartiality which must be the hallmark, attribute and distinction of every proper prosecution. In that case the advocate appointed by the aggrieved party ventured to conduct the cross-examination of the witness which was allowed by the Trial Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is likely to end in its dismissal, it would be salutary to allow a hearing to the Complainant at the earliest; and, in the case of a Sessions trial, by permitting the filing of Written Arguments. 25. The upshot of this analysis is that no vested right is granted to a complainant or informant or aggrieved party to directly conduct a prosecution. So far as the Magistrate is concerned, comparative latitude is given to him but he must always bear in mind that while the prosecution must remain being robust and comprehensive and effective it should not abandon the need to be free, fair and diligent. So far as the Sessions Court is concerned, it is the Public Prosecutor who must at all times remain in control of the prosecution and a counsel of a private party can only assist the Public Prosecutor in discharging its responsibility. The complainant or informant or aggrieved party may, however, be heard at a crucial and critical juncture of the Trial so that his interests in the prosecution are not prejudiced or jeopardized. It seems to us that constant or even frequent interference in the prosecution should not be encouraged as it will have a deleterious impact on its impartiality. If ..... X X X X Extracts X X X X X X X X Extracts X X X X
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