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Sec.439 I.P.C. – arrest / surrender before court – once the surrender is accepted, the court has to look on the merits of granting bail ? – the appellant filed a bail application under sec.439 and also surrender petition – High court held 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.” – Apex court held that the learned Single Judge erred in law in holding that he was devoid of jurisdiction so far as the application presented to him by the Appellant before us was concerned. Conceptually, he could have declined to accept the prayer to surrender to the Courts’ custody, although, we are presently not aware of any reason for this option to be exercised. Once the prayer for surrender is accepted, the Appellant before us would come into the custody of the Court within the contemplation of Section 439 CrPC. The Sessions Court as well as the High Court, both of which exercised concurrent powers under Section 439, would then have to venture to the merits of the matter so as to decide whether the applicant/Appellant had shown sufficient reason or grounds for being enlarged on bail. = SUNDEEP KUMAR BAFNA ….APPELLANT vs STATE OF MAHARASHTRA & ANR. …..RESPONDENT(S) = 2014 (March. Part ) judis.nic.in/supremecourt/filename=41343

Sec.439 I.P.C. – arrest / surrender before court – once the surrender is accepted, the court has to look on the merits of granting bail ? – the appellant filed a bail application under sec.439 and also surrender petition – High court held 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.” – Apex court held that  the  learned Single Judge erred in law in holding that he was devoid of jurisdiction   so far as the application presented to him  by  the  Appellant  before  us  was concerned.   Conceptually, he could have declined to accept  the  prayer  to surrender to the Courts’ custody, although, we are presently  not  aware  of any reason for this option to be exercised.   Once the prayer for  surrender is accepted, the Appellant before us would come  into  the  custody  of  the Court within the contemplation of Section 439 CrPC.   The Sessions Court  as well as the High Court, both of  which  exercised  concurrent  powers  under Section 439, would then have to venture to the merits of the  matter  so  as to decide whether the applicant/Appellant had  shown  sufficient  reason  or grounds for being enlarged on bail. =

 

A neat  legal  nodus  of  ubiquitous  manifestation  and  gravity  has

arisen before us.   

It partakes the character of a general principle of  law

with significance sans systems and States.  The futility of the  Appellant’s

endeavours to secure anticipatory bail  having  attained  finality,  he  had

once again knocked at the  portals  of  the  High  Court  of  Judicature  at

Bombay, this time around for regular bail under Section 439 of the  Code  of

Criminal Procedure (CrPC), which was declined with the observations that  it

is the Magistrate whose jurisdiction has necessarily to be invoked  and  not

of the High Court or even  the  Sessions  Judge.     

The  legality  of  this

conclusion is the gravemen of the appeal before  us.    While  declining  to

grant anticipatory bail to the Appellant, this Court  had  extended  to  him

transient insulation from arrest for a period of four weeks  to  enable  him

to apply for regular bail,   even in  the  face  of  the  rejection  of  his

Special Leave Petition on 28.1.2014.    

This course was courted by  him,  in

the event again in vain, as the bail  application  preferred  by  him  under

Section 439 CrPC has been dismissed by  the  High  Court  in  terms  of  the

impugned Order dated 6.2.2014.   

His supplications to the Bombay High  Court

were twofold; 

that the High Court may permit the petitioner to surrender  to

its jurisdiction and 

secondly, to enlarge 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.” =

 

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; =

The pandect providing for bail is Chapter  XXXIII  comprises  Sections

436 to 450 of the  CrPC,  of  which  Sections  437  and  439  are  currently

critical.    Suffice  it  to  state  that  Section  438  which  deals   with

directions for grant  of  bail  to  persons  apprehending  arrest  does  not

mandate either the presence of the applicant in Court or for  his  being  in

custody.    Section 437, inter alia, provides that  if  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

if such person appears or is brought before a  Court  other  than  the  High

Court  or  Court  of  Session,  he  may  be  released  on  bail  in  certain

circumstances.=

In conclusion, therefore, we are  of  the  opinion  that  the  learned

Single Judge erred in law in holding that he was devoid of jurisdiction   so

far as the application presented to him  by  the  Appellant  before  us  was

concerned.   Conceptually, he could have declined to accept  the  prayer  to

surrender to the Courts’ custody, although, we are presently  not  aware  of

any reason for this option to be exercised.   Once the prayer for  surrender

is accepted, the Appellant before us would come  into  the  custody  of  the

Court within the contemplation of Section 439 CrPC.   The Sessions Court  as

well as the High Court, both of  which  exercised  concurrent  powers  under

Section 439, would then have to venture to the merits of the  matter  so  as

to decide whether the applicant/Appellant had  shown  sufficient  reason  or

grounds for being enlarged on bail.

 

The impugned Order is, accordingly, set aside.    

The  Learned  Single

Judge shall consider the Appellant’s plea for surrendering to the Court  and

dependent on that decision, the  Learned  Single  Judge  shall,  thereafter,

consider the Appellant’s plea for his being granted  bail.    

The  Appellant

shall not be arrested for a period of two weeks or till the  final  disposal

of the said application, whichever is later.   

We expect  that  the  learned

Single Judge shall remain impervious to any pressure that may be brought  to

bear upon him either from the public or  from  the  media  as  this  is  the

fundamental and onerous duty cast on every Judge.

28.   The appeal is allowed in the above terms. 

2014 (March. Part ) judis.nic.in/supremecourt/filename=41343

 

K.S. RADHAKRISHNAN, VIKRAMAJIT SEN

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 689 OF 2014
[Arising out of SLP (Crl.)No.1348 of 2014]
SUNDEEP KUMAR BAFNA ….APPELLANT
vs
STATE OF MAHARASHTRA & ANR. …..RESPONDENT(S)

 
J U D G M E N T

 
VIKRAMAJIT SEN,J.

 

1. Leave granted.
2. A neat legal nodus of ubiquitous manifestation and gravity has
arisen before us. It partakes the character of a general principle of law
with significance sans systems and States. The futility of the Appellant’s
endeavours to secure anticipatory bail having attained finality, he had
once again knocked at the portals of the High Court of Judicature at
Bombay, this time around for regular bail under Section 439 of the Code of
Criminal Procedure (CrPC), which was declined with the observations that it
is the Magistrate whose jurisdiction has necessarily to be invoked and not
of the High Court or even the Sessions Judge. The legality of this
conclusion is the gravemen of the appeal before us. While declining to
grant anticipatory bail to the Appellant, this Court had extended to him
transient insulation from arrest for a period of four weeks to enable him
to apply for regular bail, even in the face of the rejection of his
Special Leave Petition on 28.1.2014. This course was courted by him, in
the event again in vain, as the bail application preferred by him under
Section 439 CrPC has been dismissed by the High Court in terms of the
impugned Order dated 6.2.2014. His supplications to the Bombay High Court
were twofold; that the High Court may permit the petitioner to surrender to
its jurisdiction and secondly, to enlarge 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 matter stands
committed to Sessions, the Magistrate is denuded of all powers in respect
of the said matter, for the reason that law envisages the commitment of a
case and not of an individual accused.
4. While accepting the Preliminary Objection, the dialectic articulated
in the impugned order is that law postulates that a person seeking regular
bail must perforce languish in the custody of the concerned Magistrate
under Section 167 CrPC. The Petitioner had not responded to the
notices/summons issued by the concerned Magistrate leading to the issuance
of non-bailable warrants against him, and when even these steps proved
ineffectual in bringing him before the Court, measures were set in motion
for declaring him as a proclaimed offender under Section 82 CrPC. Since
this was not the position obtaining in the case, i.e. it was assumed by the
High Court that the Petitioner was not in custody, the application for bail
under Section 439 of CrPC was held to be not maintainable. This
conclusion was reached even though the petitioner was present in Court and
had pleaded in writing that he be permitted to surrender to the
jurisdiction of the High Court. We shall abjure from narrating in minute
detail the factual matrix of the case as it is not essential to do so for
deciding the issues that have arisen in the present Appeal.
Relevant Provisions in the CrPC Pertaining to Regular Bail:
5. The pandect providing for bail is Chapter XXXIII comprises Sections
436 to 450 of the CrPC, of which Sections 437 and 439 are currently
critical. Suffice it to state that Section 438 which deals with
directions for grant of bail to persons apprehending arrest does not
mandate either the presence of the applicant in Court or for his being in
custody. Section 437, inter alia, provides that if 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
if such person appears or is brought before a Court other than the High
Court or Court of Session, he may be released on bail in certain
circumstances.
6. For facility of reference, Sections 437 and 439, both covering the
grant of regular bail in non-bailable offences are reproduced hereunder.
Section 438 has been ignored because it is the composite provision dealing
only with the grant of anticipatory bail.
“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 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 clause (ii) be released on bail if it is satisfied
that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be
required for being identified by witnesses during investigation
shall not be sufficient ground for refusing to grant bail if he 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:
Provided also that no person shall, if the offence alleged to
have been committed by him is punishable with death, imprisonment
for life, or imprisonment for seven years or more, be released on
bail by the Court under this sub-section without giving an
opportunity of hearing to the Public Prosecutor.
(2)  If it appears to such officer or Court at any stage of the
investigation, inquiry or trial, as the case may be, that there are
not reasonable grounds for believing that the accused has committed
a non-bailable offence, but that there are sufficient grounds for
further inquiry into his guilt, the accused shall, subject to the
provisions of section 446A and pending such inquiry, be released on
bail, or at the discretion of such officer or Court, on the
execution by him of a bond without sureties for his appearance as
hereinafter provided.
(3)  When a person accused or suspected of the commission of an
offence punishable with imprisonment which may extend to seven years
or more or of an offence under Chapter VI, Chapter XVI or Chapter
XVII of the Indian Penal Code (45 of 1860) or abetment of, or
conspiracy or attempt to commit, any such offence, is released on
bail under sub- section (1) – the Court shall impose the conditions

(a)  that such person shall attend in accordance with the
conditions of the bond executed under this Chapter,
(b)  that such person shall not commit an offence similar to
the offence of which he is accused, or suspected, of the commission
of which he is suspected, and
(c) that such person shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade him from disclosing such facts
to the Court or to any police officer or tamper with the evidence,
and may also impose, in the interests of justice, such other
conditions as it considers necessary.
(4)  An officer or a Court releasing any person 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 High Court or Court of Session regarding
bail –
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody
be released on bail, and if the offence is of the nature specified
in sub-section (3) of section 437, may impose any condition which it
considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when
releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall,
before granting bail to a person who is accused of an offence which
is triable exclusively by the Court of Session or which, though not
so triable, is punishable with imprisonment for life, give notice of
the application for bail to the Public Prosecutor unless it is, for
reasons to be recorded in writing, of the opinion that it is not
practicable to give such notice.
(2) A High Court or Court of Session may direct that any
person who has been released on bail under this Chapter be arrested
and commit him to custody.”
7. Article 21 of the Constitution states that no person shall be
deprived of his life or personal liberty except according to procedure
established by law. We are immediately reminded of three sentences from
the Constitution Bench decision in P.S.R. Sadhanantham vs Arunachalam
(1980) 3 SCC 141, which we appreciate as poetry in prose – “Article 21, in
its sublime brevity, guards human liberty by insisting on the prescription
of procedure established by law, not fiat as sine qua non for deprivation
of personal freedom. And those procedures so established must be fair, not
fanciful, nor formal nor flimsy, as laid down in Maneka Gandhi case. So,
it is axiomatic that our Constitutional jurisprudence mandates the State
not to deprive a person of his personal liberty without adherence to fair
procedure laid down by law”. Therefore, it seems to us that constriction
or curtailment of personal liberty cannot be justified by a conjectural
dialectic. The only restriction allowed as a general principle of law
common to all legal systems is the period of 24 hours post-arrest on the
expiry of which an accused must mandatorily be produced in a Court so that
his remand or bail can be judicially considered.
8. Some poignant particulars of Section 437 CrPC may be pinpointed.
First, whilst Section 497(1) of the old Code alluded 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 enquiry of the Magistrate placed in this position would be
akin to what is envisaged in State of Haryana vs Bhajan Lal, 1992 (Supp)1
SCC 335, that is, the alleged complicity of the accused should, on the
factual matrix then presented or prevailing, lead to the overwhelming,
incontrovertible and clear conclusion of his innocence. The CrPC severely
curtails the powers of the Magistrate while leaving that of the Court of
Session and the High Court untouched and unfettered. It appears to us
that this is the only logical conclusion that can be arrived at on a
conjoint consideration of Sections 437 and 439 of the CrPC. Obviously, in
order to complete the picture so far as concerns the powers and limitations
thereto of the Court of Session and the High Court, Section 439 would have
to be carefully considered. And when this is done, it will at once be
evident that the CrPC has placed an embargo against granting relief to an
accused, (couched by us in the negative), if he is not in custody. It
seems to us that any persisting ambivalence or doubt stands dispelled by
the proviso to this Section, which mandates only that the Public Prosecutor
should be put on notice. We have not found any provision in the CrPC or
elsewhere, nor have any been brought to our ken, curtailing the power of
either of the superior Courts to entertain and decide pleas for bail.
Furthermore, it is incongruent that in the face of the Magistrate being
virtually disempowered to grant bail in the event of detention or arrest
without warrant of any person accused of or suspected of the commission of
any non-bailable offence punishable by death or imprisonment for life, no
Court is enabled to extend him succour. Like the science of physics,
law also abhors the existence of a vacuum, as is adequately adumbrated by
the common law maxim, viz. ‘where there is a right there is a remedy’.
The universal right of personal liberty emblazened by Article 21 of our
Constitution, being fundamental to the very existence of not only to a
citizen of India but to every person, cannot be trifled with merely on a
presumptive plane. We should also keep in perspective the fact that
Parliament has carried out amendments to this pandect comprising Sections
437 to 439, and, therefore, predicates on the well established principles
of interpretation of statutes that what is not plainly evident from their
reading, was never intended 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 conundrum of
‘Committal of cases to the Court of Session’ because of a possible hiatus
created by the CrPC.
Meaning of Custody:
9. Unfortunately, the terms ‘custody’, ‘detention’ or ‘arrest’ have not
been defined in the CrPC, and we must resort to few dictionaries to
appreciate their contours in ordinary and legal parlance. The Oxford
Dictionary (online) defines custody as imprisonment, detention,
confinement, incarceration, internment, captivity; remand, duress, and
durance. The Cambridge Dictionary (online) explains ‘custody’ as the
state of being  kept in prison,  especially while waiting to go
to court for trial. Longman Dictionary (online) defines ‘custody’ as ‘when
someone is kept in prison until they go to court, because the police think
they have committed a crime’. Chambers Dictionary (online) clarifies that
custody is ‘the condition of being held by the police; arrest or
imprisonment; to take someone into custody to arrest them’.  Chambers’
Thesaurus supplies several synonyms, such as detention, confinement,
imprisonment, captivity, arrest, formal incarceration. The Collins Cobuild
English Dictionary for Advance Learners states in terms of that someone who
is in custody or has been taken into custody or has been arrested and is
being kept in prison until they get tried in a court or if someone is being
held in a particular type of custody, they are being kept in a place that
is similar to a prison. The Shorter Oxford English Dictionary
postulates the presence of confinement, imprisonment, durance and this
feature is totally absent in the factual matrix before us. The Corpus
Juris Secundum under the topic of ‘Escape & Related Offenses; Rescue’
adumbrates that ‘Custody, within the meaning of statutes defining the
crime, consists of the detention or restraint of a person against his or
her will, or of the exercise of control over another to confine the other
person within certain physical limits or a restriction of ability or
freedom of movement.’ This is how ‘Custody’ is dealt with in Black’s Law
Dictionary, (9th ed. 2009):-
“Custody- The care and control of a thing or person. The
keeping, guarding, care, watch, inspection, preservation or security
of a thing, carrying with it the idea of the thing being within the
immediate personal care and control of the person to whose custody
it is subjected. Immediate charge and control, and not the final,
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 Beevi vs Joint Secretary 1984(15) ELT 289
(Mad), as also to the decision of the Court in Directorate of Enforcement
vs Deepak Mahajan (1994) 3 SCC 440; in view of the composition of both the
Benches, reference to the former is otiose. Had we been called upon to
peruse Deepak Mahajan earlier, we may not have considered it necessary to
undertake a study of several Dictionaries, since it is a convenient and
comprehensive compendium on the meaning of arrest, detention and custody.
11. Courts in Australia, Canada, U.K. and U.S. have predicated in great
measure, their decisions on paragraph 99 from Vol. II Halsbury’s Laws of
England (4th Edition) which states that – “Arrest consists of the actual
seizure or touching of a person’s body with a view to his detention. The
mere pronouncing of words of arrest is not an arrest, unless the person
sought to be arrested submits to the process and goes with the arresting
officer”. The US Supreme Court has been called upon to explicate the
concept of custody on a number of occasions, where, coincidentally, the
plea that was proffered was the failure of the police to administer the
Miranda caution, i.e. of apprising the detainee of his Constitutional
rights. In Miranda vs Arizona 384 US 436 (1966), custodial interrogation
has been said to mean “questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way”. In Minnesota vs Murphy 465 US
420 (1984), it was opined by the U.S. Supreme Court that since “no formal
arrest or restraint on freedom of movement of the degree associated with
formal arrest” had transpired, the Miranda doctrine had not become
operative. In R. vs Whitfield 1969 CareswellOnt 138, the Supreme Court of
Canada was called upon to decide whether the police officer, who directed
the accused therein to stop the car and while seizing him by the shirt said
“you are under arrest:”, could be said to have been “custodially arrested”
when the accused managed to sped away. The plurality of the Supreme Court
declined to draw any distinction between an arrest amounting to custody and
a mere or bare arrest and held that the accused was not arrested and thus
could not have been guilty of “escaping from lawful custody”. More
recently, the Supreme Court of Canada has clarified in R. vs Suberu [2009]
S.C.J.No.33 that detention 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
synonymous even though in every arrest there is a deprivation of liberty is
custody but not vice versa. This thesis is reiterated by Pandian J in
Deepak Mahajan by deriving support from Niranjan Singh vs Prabhakar Rajaram
Kharote (1980) 2 SCC 559. The following passages from Deepak Mahajan are
worthy of extraction:-
“48. Thus the Code gives power of arrest not only to a police
officer and a Magistrate but also under certain circumstances or given
situations to private persons. Further, when an accused person appears
before a Magistrate or surrenders voluntarily, the Magistrate is
empowered to take that accused person into custody and deal with him
according to law. Needless to emphasize that the arrest of a person
is a condition precedent for taking him into judicial custody thereof.
To put it differently, the taking of the person into judicial custody
is followed after the arrest of the person concerned by the Magistrate
on appearance or surrender. It will be appropriate, at this stage, to
note that in every arrest, there is custody but not vice versa and
that both the words ‘custody’ and ‘arrest’ are not synonymous terms.
Though ‘custody’ may amount to an arrest in certain circumstances but
not under all circumstances. If these two terms are interpreted as
synonymous, it is nothing but an ultra legalist interpretation which
if under all circumstances accepted and adopted, would lead to a
startling anomaly resulting in serious consequences, vide Roshan
Beevi.
49. While interpreting the expression ‘in custody’ within the
meaning of Section 439 CrPC, Krishna Iyer, J. speaking for the Bench
in Niranjan Singh v. Prabhakar Rajaram Kharote observed that: (SCC p.
563, para 9)
“He can be in custody not 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.” (emphasis
added)
If the third sentence of para 48 is discordant to Niranjan Singh, the view
of the coordinate Bench of earlier vintage must prevail, and this
discipline demands and constrains us also to adhere to Niranjan Singh;
ergo, we reiterate that a person is in custody no sooner he surrenders
before the police or before the appropriate Court. This enunciation of
the law is also available in three decisions in which Arijit Pasayat 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 constitutional or statutory prescription in
the matter, and the point is governed entirely by the practice in
India of the courts sanctified by repeated affirmation over a
century of time. It cannot be doubted that in order to promote
consistency and certainty in the law laid down by a superior Court,
the ideal condition would be that the entire Court should sit in all
cases to decide questions of law, and for that reason the Supreme
Court of the United States does so. But having regard to the volume
of work demanding the attention of the Court, it has been found
necessary in India as a general rule of practice and convenience
that the Court should sit in Divisions, each Division being
constituted of Judges whose number may be determined by the
exigencies of judicial need, by the nature of the case including any
statutory mandate relative thereto, and by such other considerations
which the Chief Justice, in whom such authority devolves by
convention, may find most appropriate. It is in order to guard
against the possibility of inconsistent decisions on points of law
by different Division Benches that the Rule has been evolved, in
order to promote consistency and certainty in the development of the
law and its contemporary status, that the statement of the law by a
Division Bench is considered binding on a Division Bench of the same
or lesser number of Judges. This principle has been followed in
India by several generations of Judges. …”

14. This ratio of Raghubir Singh was applied once again by the
Constitution Bench in Chandra Prakash v. State of U.P.: AIR 2002 SC 1652.
We think it instructive to extract the paragraph 22 from Chandra Prakash in
order to underscore that there is a consistent and constant judicial
opinion, spanning across decades, on this aspect of jurisprudence:
“Almost similar is the view expressed by a recent judgment of a
five-Judge Bench of this Court in Parija’s case (supra). In that
case, a Bench of two learned Judges doubted the correctness of the
decision a Bench of three learned Judges, hence, directly referred the
matter to a Bench of five learned Judges for reconsideration. In
such a situation, the five-Judge Bench held that judicial discipline
and propriety demanded that a Bench of two learned Judges should
follow the decision of a Bench of three learned Judges. On this
basis, the five-Judge Bench found fault with the reference 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.
Validation of Ratio in Niranjan Singh:
16. We must now discuss in detail the decision of a Two-Judge Bench in
Rashmi Rekha Thatoi vs State of Orissa, (2012) 5 SCC 690, for the reason
that in the impugned Order the Single Judge of the High Court has
proclaimed, which word we used intentionally, that Niranjan Singh is per
incuriam. The ‘chronology of cases’ mentioned in Rashmi Rekha elucidates
that there is only one judgment anterior to Niranjan Singh, namely,
Balchand Jain vs State of M.P. (1976) 4 SCC 572, which along with the
Constitution Bench decision in Gurbaksh Singh Sibbia, intrinsically
concerned itself only with anticipatory bail. It is necessary to give a
salutary clarion caution to all Courts, including High Courts, to be
extremely careful and circumspect in concluding a judgment of the Supreme
Court to be per incuriam. In the present case, in the impugned Order the
learned Single Judge appears to have blindly followed the incorrect and
certainly misleading editorial note in the Supreme Court Reports without
taking the trouble of conscientiously apprising himself of the context in
which Rashmi Rekha appears to hold Niranjan Singh per incuriam, and
equally importantly, to which previous judgment. An earlier judgment
cannot possibly be seen as per incuriam a later judgment as the latter if
numerically stronger only then it would overrule the former. Rashmi Rekha
dealt with anticipatory bail under Section 438 and only tangentially with
Sections 437 and 439 of the CrPC, and while deliberations and observations
found in this clutch of cases may not be circumscribed by the term obiter
dicta, it must concede to any judgment directly on point. In the factual
matrix before us, Niranjan Singh is the precedent of relevance and not
Gurbaksh Singh Sibbia or any other decision where the scope and sweep of
anticipatory bail was at the fulcrum of the conundrum.
17. Recently, in Dinesh Kumar, this conundrum came to be considered
again. This Court adhered to the Niranjan Singh dicta (as it was bound to
do), viz. that a person can be stated to be in judicial custody when he
surrendered before the Court and submits to its directions. We further
regretfully observe that the impugned Judgment is repugnant to the analysis
carried out by two coordinate Benches of the High Court of Bombay itself,
which were duly cited on behalf of the Appellant. The first one is
reported 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. It will also be germane to briefly cogitate on the fasciculous
captioned “Section 438 of the Code of Civil Procedure, as amended by the
Code of Criminal Procedure (Amendment) Act, 2005 of the 203rd Report of the
Law Commission. Although, the Law Commission was principally focused on
the parameters of anticipatory bail, it had reflected on Niranjan Singh,
and, thereafter, observed in paragraph 6.3.23 that “where a person appears
before the Court in compliance with any Court’s order and surrenders
himself to the Court’s directions or control, he may be granted regular
bail, since he is already under restraint. The provisions relating to the
anticipatory bail may not be attracted in such a case”. An amendment was
proposed to the provisions vide CrPC (Amendment) Act, 2005 making the
presence of the applicant seeking anticipatory bail obligatory at the time
of final hearing of the application for enlargement on bail. The said
amendment has not been notified yet and kept in abeyance because of two
reasons. Firstly, the amendment led to widespread agitation by the lawyers
fraternity since it would virtually enable the police to immediately arrest
an accused in the event the Court declined to enlarge the accused on bail.
Secondly, in the perception of the Law Commission, it would defeat the very
purpose of the anticipatory bail. The conclusion of the Law Commission, in
almost identical words to those extracted above are that: “when the
applicant appears in the Court in compliance of the Court’s order and is
subjected to the Court’s directions, he may be viewed as in Court’s custody
and this may render the relief of anticipatory bail infructuous”.
Accordingly, the Law Commission has recommended omission of sub-section (1-
B) of Section 438 CrPC.
19. The Appellant had relied on Niranjan Singh vs Prabhakar Rajaram
Kharote (1980) 2 SCC 559, before the High Court as well as before us. A
perusal of the impugned Order discloses that the learned Single Judge was
of the mistaken opinion that Niranjan Singh was per incuriam, possibly
because of an editorial error in the reporting of the later judgment in
Rashmi Rekha Thatoi vs State of Orissa (2012) 5 SCC 690. In the latter
decision the curial assault was to the refusal to grant of anticipatory
bail under Section 438(1) CrPC, yet nevertheless enabling him to surrender
before the Sub Divisional Magistrate and thereupon to be 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 on certain terms which the High Court did not
interfere therewith. This Court, speaking through Krishna Iyer J
elucidated the law in these paragraphs:
“6. Here the respondents were accused of offences but were not in
custody, argues the petitioner so no bail, since this basic
condition of being in jail is not fulfilled. This submission has
been rightly rejected by the courts below. We agree that, in one
view, an outlaw cannot ask for the benefit of law and he who flees
justice cannot claim justice. But here the position is different.
The accused were not absconding but had appeared and surrendered
before the Sessions Judge. Judicial jurisdiction arises only when
persons are already in custody and seek the process of the court to
be enlarged. We agree that no person accused of an offence can move
the court for bail under Section 439 CrPC unless he is in custody.
7. When is a person in custody, within the meaning of Section 439
CrPC? When he is in duress either because he is held by the
investigating agency or other police or allied authority or is under
the control of the court having been remanded by judicial order, or
having offered himself to the court’s jurisdiction and submitted to
its orders by physical presence. No lexical dexterity nor
precedential profusion is needed to come to the realistic conclusion
that he who is under the control of the court or is in the physical
hold of an officer with coercive power is in custody for the purpose
of Section 439. This word is of elastic semantics but its core
meaning is that the law has taken control of the person. The
equivocatory quibblings and hide-and-seek niceties sometimes heard
in court that the police have taken a man into informal custody but
not arrested him, have detained him for interrogation but not taken
him into formal custody and other like terminological dubieties are
unfair evasions of the straightforwardness of the law. We need not
dilate on this shady facet here because we are satisfied that the
accused did physically submit before the Sessions Judge and the
jurisdiction to grant bail thus arose.
8. Custody, in the context of Section 439, (we are not, be it
noted, dealing with anticipatory bail under Section 438) is physical
control or at least physical presence of the accused in court
coupled with submission to the jurisdiction and orders of the court.
9. He can be in custody not 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 submitted to the custody
of the court. We, therefore, do not proceed to upset the order on
this ground. Had the circumstances been different we would have
demolished the order for bail. We may frankly state that had we been
left to ourselves we might not have granted bail but, sitting under
Article 136, do not feel that we should interfere with a discretion
exercised by the two courts below.”
(Emphasis added by us)

It should not need belabouring that High Courts must be most careful and
circumspect in concluding that a decision of a superior Court is per
incuriam. And here, palpably without taking the trouble of referring to
and reading the precedents alluded to, casually accepting to be correct a
careless and incorrect editorial note, the Single Judge has done exactly
so. All the cases considered in Rashmi Rekha including the decision of the
Constitution Bench in Gurbaksh Singh Sibbia vs State of Punjab (1980) 2 SCC
565, concentrated on the contours and circumference of anticipatory bail,
i.e. Section 438. We may reiterate that the Appellant’s prayer for
anticipatory bail had already been declined by this Court, which is why he
had no alternative but to apply for regular bail. Before we move on we
shall reproduce the following part of paragraph 19 of Sibbia as it has
topicality:-
“19 … Besides, if and when the occasion arises, it may be possible
for the prosecution to claim the benefit of Section 27 of the
Evidence Act in regard to a discovery of facts made in pursuance of
information supplied by a person released on bail by invoking the
principles stated by this Court in State of U.P. v. Deoman
Upadhyaya to the effect that when a person not in custody
approaches a police officer investigating an offence and offers to
give information leading to the discovery of a fact, having a
bearing on the charge which may be made against him, he may
appropriately be deemed so have surrendered himself to the police.
The broad foundation of this rule is stated to be that Section 46
of the Code of Criminal Procedure does not contemplate any
formality before a person can be said to be taken in custody:
submission to the custody by word or action by a person is
sufficient. For similar reasons, we are unable to agree that
anticipatory bail should be refused if a legitimate case for the
remand of the offender to the police custody under Section 167(2)
of the Code is made out by 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 other than a police officer, or (iv) upon the Magistrate’s own
knowledge. Thereafter, Section 193 proscribes the Court of Session from
taking cognizance of any offence, as a Court of original jurisdiction,
unless the case has been committed to it by a Magistrate; its Appellate
jurisdiction is left untouched. Chapter XVI makes it amply clear that a
substantial period may inevitably intervene between a Magistrate taking
cognizance of an offence triable by Sessions and its committal to the Court
of Session. Section 204 casts the duty on a Magistrate to issue process;
Section 205 empowers him to dispense with personal attendance of accused;
Section 206 permits Special summons in cases of petty offence; Sections 207
and 208 obligate the Magistrate to furnish to the accused, free of cost,
copies of sundry documents mentioned therein; and, thereafter, under
Section 209 to commit the case to Sessions. What is to happen to the
accused in this interregnum; can his liberty be jeopardized! The only
permissible restriction to personal freedom, as a universal legal norm, is
the arrest or detention of an accused for a reasonable period of 24 hours.
Thereafter, the accused would be entitled to seek before a Court his
enlargement on bail. In connection with serious offences, Section 167 CrPC
contemplates that an accused may be incarcerated, either in police or
judicial custody, for a maximum of 90 days if the Charge Sheet has not been
filed. An accused can and very often does remain bereft of his personal
liberty for as long as three months and law must enable him to seek
enlargement on bail in this period. Since severe restrictions have been
placed on the powers of a Magistrate to grant bail, in the case of an
offence punishable by death or for imprisonment for life, an accused should
be in a position to move the Courts meaningfully empowered to grant him
succour. It is inevitable that the personal freedom of an individual would
be curtailed even before he can invoke the appellate jurisdiction of
Sessions Judge. The Constitution therefore requires that a pragmatic,
positive and facilitative interpretation be given to the CrPC especially
with regard to the exercise of its original jurisdiction by the Sessions
Court. We are unable to locate any provision in the CrPC which prohibits
an accused from moving the Court of Session for such a relief except,
theoretically, Section 193 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 praying, firstly, that he be
permitted to surrender to the High Court and secondly, for his plea to be
considered for grant of bail by the High Court. We say this because 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. Reliance on
R vs Evans, (2012) 1 WLR 1192, by learned Senior Counsel for the
respondents before us is misplaced, since on its careful reading, the facts
are totally distinguishable inasmuch as the accused in that case had so
engineered events as not to be available in persona in the Court at the
time of the consideration of his application for surrender. The Court
of Appeal observed that they “do not agree that reporting to the usher
amounts to surrender”. The Court in fact supported the view that surrender
may also be accomplished by the commencement of any hearing before the
Judge, however brief, where the accused person is formally identified and
plainly would overtly have subjected himself to the control of the Court.
Incontrovertibly, at the material time the Appellant was corporeally
present in the Bombay High Court making Evans applicable to the case of the
Appellant rather than the case of the respondent. A further singularity
of the present case is that the offence has already been committed to
Sessions, albeit, the accused/Appellant could not have been brought before
the Magistrate. It is beyond cavil “that a Court takes cognizance of an
offence and not an offender” as observed in Dilawar Singh vs Parvinder
Singh, (2005) 12 SCC 709, in which Raghubans Dubey vs State of Bihar, AIR
1967 SC 1167, was applied. Therefore, the High Court was not justified
in directing the Appellant to appear before the Magistrate.
23. On behalf of the State, the submission is that the prosecution should
be afforded a free and fair opportunity of subjecting the accused to
custody for interrogation as provided under Section 167 CrPC. This power
rests with the Magistrate and not with the High Court, which is the Court
of Revision and Appeal; therefore, the High Court under Section 482 CrPC
can only correct or rectify an order passed without jurisdiction 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 Complainant or informant because it is
axiomatic that any infraction or inroad to the freedom of an individual is
possible only by some clear unequivocal and unambiguous procedure known to
law.
Role of Public Prosecutor and Private Counsel in Prosecution
24. The concern of the Three Judge Bench in Thakur Ram vs State of Bihar
AIR 1966 SC 911, principally was whether the case before them should have
been committed to Sessions, as also whether this plea could be countenanced
at the stage when only the Judgment was awaited and any such interference
would effectuate subjecting the accused to face trial virtually de novo.
The observations that where “a case has proceeded on a police report a
private party has really no locus standi, since the aggrieved party is the
State”, are strictly senso obiter dicta but it did presage the view that
was to be taken by this Court later. In Bhagwant Singh vs Commissioner of
Police, (1985) 2 SCC 537, another Three Judge Bench formulated the question
which required its answer that “whether in a case where First Information
Report is lodged and after completion of investigation initiated on the
basis of the First Information Report, the police submits a report that no
offence appears to have been committed, the Magistrate can accept the
report and drop the proceeding without issuing notice to the first
informant or to the injured or in case the incident has resulted in death,
to the relatives of the deceased”. Sections 154, 156, 157, 173 and 190 of
the CrPC were duly considered threadbare, before opining thus:-
“4. ….when, on a consideration of the report made by the officer-
in-charge of a police station under sub-section (2)(i) of
Section 173, the Magistrate is not inclined to take cognizance
of the offence and issue process, the informant must be given an
opportunity of being heard so that he can make his submissions
to persuade the Magistrate to take cognizance of the offence and
issue process…..
xxxxxxxxxx
“5. The position may however, be a little different when we
consider the question whether the injured person or a relative
of the deceased, who is not the informant, is entitled to notice
when the report comes up for consideration by the Magistrate.
We cannot spell out either from the provisions of the Code of
Criminal Procedure, 1973 or from the principles of natural
justice, any obligation on the Magistrate to issue notice 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 Court but
was reversed in Revision by the High Court, and the High Court permitted
only the submission of Written Argument after the closure of evidence.
Upholding the view of the High Court, this Court went on to observe that
before the Magistrate any person (except a police officer below the rank of
Inspector) could conduct the prosecution, but that this laxity is
impermissible in Sessions by virtue of Section 225 of the CrPC, which
pointedly states that the prosecution shall be conducted by a Public
Prosecutor. We, respectfully, agree with the observations that – “A Public
Prosecutor is not expected to show a thirst to reach the case in the
conviction of the accused somehow or the other irrespective of the true
facts involved in the case. The expected attitude of the Public Prosecutor
while conducting prosecution must be couched in fairness not only to the
Court and to the investigating agencies but to the accused as well. ……..
A private counsel, if allowed a free hand to conduct prosecution would
focus on bringing the case to conviction even if it is not a fit case to be
so convicted. That is the reason why Parliament applied a bridle on him
and subjected his role strictly to the instructions given by the Public
Prosecutor.” In J.K. International vs State (2001) 3 SCC 462, the
Appellant had filed a complaint alleging offences under Sections 420, 406
and 120-B IPC in respect of which a Charge Sheet was duly filed. The
Appellant preferred a petition in the High Court for quashing the FIR in
which proceeding the complainant’s request for being heard was rejected by
the High Court. Thakur Ram and Bhagwant Singh were cited and analysed. It
was reiterated by this Court that it is the Public Prosecutor who is in the
management of the prosecution the Court should look askance at frequent
interjection and interference by a private person. However, if the
proceedings are likely to be quashed, then the complainant should be heard
at that stage, rather than compelling him to assail the quashment by taking
recourse to an appeal. Sections 225, 301 and 302 were also adverted to
and, thereafter, it was opined that a private person is not altogether
eclipsed from the scenario, as he remains a person who will be prejudiced
by an order culminating in the dismissal of the prosecution. The Three
Judge Bench observed that upon the Magistrate becoming prescient that a
prosecution 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
the Magistrate or Sessions Judge harbours the opinion that the prosecution
is likely to fail, prudence would prompt that the complainant or informant
or aggrieved party be given an informal hearing. Reverting to the case in
hand, we are of the opinion that the complainant or informant or aggrieved
party who is himself an accomplished criminal lawyer and who has been
represented before us by the erudite Senior Counsel, was not possessed of
any vested right of being heard as it is manifestly evident that the Court
has not formed any opinion adverse to the prosecution. Whether the Accused
is to be granted bail is a matter which can adequately be argued by the
State Counsel. We have, however, granted a full hearing to Mr. Gopal
Subramanium, Senior Advocate and have perused detailed Written Submissions
since we are alive to impact that our opinion would have on a multitude of
criminal trials.
26. In conclusion, therefore, we are of the opinion that the learned
Single Judge erred in law in holding that he was devoid of jurisdiction so
far as the application presented to him by the Appellant before us was
concerned. Conceptually, he could have declined to accept the prayer to
surrender to the Courts’ custody, although, we are presently not aware of
any reason for this option to be exercised. Once the prayer for surrender
is accepted, the Appellant before us would come into the custody of the
Court within the contemplation of Section 439 CrPC. The Sessions Court as
well as the High Court, both of which exercised concurrent powers under
Section 439, would then have to venture to the merits of the matter so as
to decide whether the applicant/Appellant had shown sufficient reason or
grounds for being enlarged on bail.
27. The impugned Order is, accordingly, set aside. The Learned Single
Judge shall consider the Appellant’s plea for surrendering to the Court and
dependent on that decision, the Learned Single Judge shall, thereafter,
consider the Appellant’s plea for his being granted bail. The Appellant
shall not be arrested for a period of two weeks or till the final disposal
of the said application, whichever is later. We expect that the learned
Single Judge shall remain impervious to any pressure that may be brought to
bear upon him either from the public or from the media as this is the
fundamental and onerous duty cast on every Judge.
28. The appeal is allowed in the above terms.
………………………………………J.
[K.S.RADHAKRISHNAN]
……………………………………..J.
[VIKRAMAJIT SEN]
New Delhi;
March 27, 2014.
———————–
41

 

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