TMI Blog1992 (5) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... f that report that he required the Block Development Officer to lodge a first information report. 4. It does, therefore, appear as a fact that an inquiry was conducted. However, even if it was not, it would not be a reason to believe that the allegations made in the first information report were false. 5. It is not disputed that there are specific allegations which if found correct would make out an offence. In these circumstances, there is ho reason to quash the first information report or to stop the investigation. 6. It was then urged on behalf of petitioner that direction be issued to the Court below to dispose of the application for bail when moved by the petitioner on the same day on which the application is moved. He also sought a further direction that in case bail application cannot be disposed of the same day, the Magistrate may be directed to release the petitioner on his personal bond till such time as the application for bail can be disposed of or in alternative to require the Magistrate to issue a direction to the police not to arrest the petitioner till such time as the bail application has been disposed of. 7. On behalf of State issuance of any of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... road the area of discretion under Art. 226 of the Constitution may be it cannot be totally unfettered-for then discretion will degenerate into arbitrariness. Disregard of law by this Court in issuing directions would hit at the very root of the principle of rule of law, the basic tenet which sustains this polity. The Courts of law including this Court are meant to enforce the law and not to supplant it. 12. We are clearly of the opinion that no direction can ever be issued by High Court as may require violation of any provision of law. 13. The first direction sought by the petitioner is that the bail application should be decided by the Court on the very day on which it is moved. 14. This direction once issued by High Court will have to be complied with by the trial Courts in all the cases irrespective of the individual situations. 15. For this it will be necessary to acquaint ourselves with the provisions which govern the determination of bail applications, as contained in Sections 437(1) and 439(1), Cr. P.C 437. When bail 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Public Prosecutor before the bail application is decided unless, for reasons to be recorded in writing the Court is of the opinion that it is not practicable to give such notice. The offence in the present case is punishable with imprisonment for life. 17. Under Section 437 and even for the bails in respect of the offences not covered by the aforesaid proviso, there is no specific provision explicitly requiring the giving of the notice to the prosecution. However, the Court has to record its reasons in writing while releasing any person on bail under Sec. 437, Cr. P.C 18. Thus it would be seen that in some cases it is statutorily required to give notice to the public prosecutor before a bail application is heard and decided. 19. The purpose of the bail is to relieve a person of the arrest and detention pending investigation or trial. The purpose of such detention is primarily to ensure a fair trial and, therefore, some of the essential considerations in the grant of bails are: (a) the availability of the accused for the trial. (b) the likelihood of the accused tampering with evidence, intimidating witness or victim. (c) the previous history of the accused with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after this notice has been given, a number of adjournments are granted to the prosecution to obtain instructions and it is so where the material has already been collected and placed before the Courts below. Validity of Rule 18 was upheld in the case of Ramesh Chandra Kapil, 1984 All Cri C (SOC) 58 : (1984 Cri LJ 1156). 25. To expect the prosecution in the trial Courts to collect all the material within an hour or two after having been given the bail applications even from the police station situate far away and also considering the fact that/investigating officers would be available during those precise hours sitting in the police stations in spite of the exigencies of their service, would be expecting almost impossible and will be frustrative of just decision in bail. 26. Giving of a notice is not a sheer formality. The discussion above would show that giving of such a notice has a specific purpose, of affording the prosecution an opportunity to collect and place the material before the Court. It cannot be said that the; mere showing of an application for bail to the public prosecutor would be a sufficient compliance of the provisions of law and after showing the bail appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive to restrict the liberty of an individual to protect the similar liberty of other persons and to create an order in the society. It is well established that liberty of a person may be interfered with in accordance with procedure which is provided by a statute, which is reasonable, just and fair and is operated within the permissible limits. In the case of A.K Gopalan v. State Of Madras., AIR 1950 SC 27, at page 108, Das J. defined liberty as a right to do as one pleases within the law. I say within the law because liberty is not unbridled licence, but a regulated freedom. He went on to quote Webster in his works Vol. II page 393. Liberty is the creation of law essentially different from the authorised licentiousness that trespasses on right. It is a legal and refined idea, the offspring of high civilization, which the savage never understand, and never can understand Liberty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have. It is an error to suppose that liberty consists in a paucity of laws The working of our complex system, full of checks and restraints on legislative, executive and judicial power fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case can be arrested and detained pending the decision of an application for bail under valid statutes such detention cannot be said to violate the provisions of Art. 21 of the Constitution. 38. In respect of the cognizable effence a person may be arrested by the police when there is a reasonable complaint, a credible information or a reasonable suspicion about his having been concerned in the commission of such an offence, under Section 41(1)(a) of Cr. P.C A Magistrate can also arrest a person under S. 44(2), Cr. P.C though such arrests are usually made when a person himself appears before a Court and surrenders. 39. A person so arrested may be remanded to custody during investigation under Sections 167 and 167-A, Cr. P.C or may be released on bail under Sections 437 and 439, Cr. P.C 40. In case the investigation has concluded, Sections 309 and 209, Cr. P.C provide for remand during trial. 41. The validity of any one of these provisions has not been challenged before this Court. 42. Thus they constitute the procedure established by law, capable of overriding the right of liberty of an individual, if used in just and fair manner. 43. As has been discussed in detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sking the magistrate to direct the police not to arrest the accused during investigation, this Court shall be directing a Magistrate to do something which it itself cannot do because of the law laid down in the aforesaid case. If even this Court which in addition to all the powers it has as a Court under the Cr. P.C has inherent powers under Section 482, Cr. P.C cannot stay the arrest, directing the Magistrate to pass that order would amount to getting that act done which cannot be ordered by this Court, by proxy. Such a direction, would patently be against the provisions of law. 49. By directing the Magistrate to immediately release a person on personal Bond, this Court would be innovating a procedure not provided by law. 50. The Code of Criminal Procedure is exhaustive in respect of matters specifically provided by it. (Gokul, (1902) 29 Ind App 196). 51. The Criminal Procedure Code specifically provides for the manner in which person can be released on bail in provisions contained in Sec. 436, Section 437 and 439 Cr. P.C 52. As has been discussed above, there are well accepted considerations for passing of an order under either of these two provisions in granting of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention of the Legislature which enacted the legislation. It is hot for the Court to reframe the legislation for very good reason that the powers to legislate have not been conferred on the Court. 58. It was so laid down in the, case of State of Kerala v. Mathai Varghese, (1986) 4 SCC 746 : AIR 1987 SC 33. 59. Even where the Court finds that something ought to have been provided in the law but has not been so provided, it cannot supply the provisions only in interpreting the law. There is no scope for imperting into the statute words which are not there. Such importation would be not to construe, but to amend the statute. Even if there be casus omissus, the defect can be remedied only by legislation and not by judicial interpretation. (Tarulate Syam v. Income-tax Commissioner, (1977) 3 SCC 305 : AIR 1977 SC 1802). 60. This Court cannot, therefore, ignore the statutory provisions and convert the process of bail in the trial Courts into a two stage process by directing necessary release of a person on a personal bond without consid ering the relevant determinents or permitting them to be considered by the Courts below, and then again to require the hearing of the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere issued following the decision in the aforesaid cases of Rajendra (1989 All LJ 223) and Brahmanand Singh (1991 UP Cri R 285) (supra) without assigning any reason. 69. It may be pointed out that mere directions do not amount to precedents. It is the ratio and the principle laid down which constitutes the binding precedent. (See Shamarao v. Union Territory of Pondicherry, AIR 1967 SC 1480. 70. Merely requiring the bail to be con sidered the same day without any reasons being given specially in finding whether such a direction is permissible under the existing provisions of law would not have any precedential value. Learned single judge in the case of Sipti (1991 UP Cri R 303) (supra) has merely assumed that it is possible to get the report the same day. This assumption is one of fact and does not respond to the ground of working conditions. It may not be possible for any Court to get a report from any out-station police station the same day as there are no specific persons assigned to do only this job and even the persons who come from the police station do not have vehicle and use only cycles or public conveyance. Even the journey to and from the police station even if a ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng administratively can consider doing away with moving of a bail application before a Magistrate when a person seeks bail in a situation where the bail cannot be granted by the Magistrate. 76. The Court can also reduce the hardship or persons who are unnecessarily taken into custody and kept in jail till the prosecution is able to get instructions, by providing that a party who wants to surrender and move for bail can give a notice to the District Government Counsel or the Public Prosecutor, indicating also the day on which he would surrender and move for bail. The minimum period between the giving of the notice and the date of surrender can be fixed by the High Court by rules or by administrative directions. The prosecution can then have no reason not to be prepared to argue on the application for bail on the date on which the application for bail is actually moved. In case the bail application is to be moved before the sessions Judge, the applicant can surrender before the Magistrate, the Magistrate alone being empowered to arrest under the Cr. P.C and move the bail application before the sessions judge for him to hear the application and decide it the same day after due noti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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