Saturday, February 26, 2011

Anonymous petition- Not treated as Public Interest Litigation

 Divine Retreat Centre Vs. State of Kerala & Ors.  (2008)3SCC542 AIR2008SC1614(decided on 11 March 2008)

S.H. KAPADIA & B. SUDERSHAN REDDY (Arising out of S.L.P. (Crl.) No. 2234 of 2007) B. SUDERSHAN REDDY, J.


B. Sudershan Reddy, J.


1. Leave granted.

2. What is the scope, content and ambit of the inherent power conferred on the High Court under Section 482 of the Code of Criminal Procedure, 1973 (for short, the Code) is the central question that falls for our consideration in this appeal.

3. The relevant facts, giving rise to this appeal, have been set out in the impugned judgment of the High Court but they have to be recapitulated in order to enable us to give our reasons for the findings which we will be arriving at on the interpretation.

4. This appeal by grant of special leave is directed by Divine Retreat Centre assailing the judgment and order dated 10.3.2006 of the High Court of Kerala rendered in Criminal M.C. No. 405 of 2006, directing investigation of Crime No. 381 of 2005 of Koratty Police Station to be taken away from the Investigating Officer and entrusting the same to a Special Investigation Team headed by Vinson M. Paul, I.P.S. Inspector General of Police, presently working as Managing Director of Kerala Police Housing Construction Corporation, Thiruvananthapuram. The High Court also directed the same authority to investigate/inquire into various other allegations leveled in an anonymous petition filed against Divine Retreat Centre. The impugned judgment and order arises out of the proceedings suo motu initiated by the Court on the basis of anonymous petition addressed to Justice Padmanabhan Nair.

5. The tell-tale facts disclosed from the record may have to be noted in some detail. One Mini Varghese, a female remand prisoner, sent a petition to the District Judge, Kozhikode, inter alia, alleging that while she was taking shelter in Divine Retreat Centre she had been subjected to molestation and exploitation and became pregnant from Father Jose Thadathil (later identified as Father Mathew Thadathil). When she came out of Centre to attend her sisters marriage she was implicated in a false theft case and lodged in the jail.

6. The District Judge having received the petition on 28.7.2005 forwarded the same to the concerned Magistrate on 9.8.2005 to do the needful. The Judicial Magistrate First Class, Koyilandi recorded the statement of the victim on 11.8.2005 and thereafter the matter was transferred to the Judicial Magistrate First Class, Chalakuddy. The learned Magistrate having received the records ordered investigation.

A case was registered in Crime No. 381 of 2005 under Section 376(g) I.P.C. at Koratty Police Station.

7. For whatever reasons, the District Judge sent a copy of the petition received by him to the Registrar of Kerala High Court which was placed before Thankappan, J. who in turn directed complaint to be forwarded to the Superintendent of Police, Thrissur to cause an inquiry and if necessary to register a case and report to the Court. The Superintendent of Police as well as the Circle Inspector of Police (Investigating Officer) submitted their reports duly informing the Registry that a case has already been registered and was being investigated.

8. On 28.10.2005, District Judge, Kozhikode, addressed a letter to the Registrar General, High Court of Kerala enclosing anonymous Petition dated 26.10.2005 received by him addressed to Justice K. Padmanabhan Nair. The Petition was accompanied by photocopies of certain press reports and three Video C.Ds. In his covering letter, the District Judge referred to the facts leading to the registration of Crime No. 381 of 2005 on the file of Koratty Police Station on 31.8.2005 under Section 376(g) I.P.C. and further stated:

In the meantime, Smt. Mini Varghese delivered. The Local Police, while arresting her in connection with a theft case had seized a mobile phone from her. The police produced that mobile phone in the J.F.M.C., Koyilandy.

That mobile phone was forwarded to the J.F.M.

Chalakuddy for investigation as the concerned priest was said to have made several calls to the lady in that mobile phone. Later, I happened to see some press reports (I am enclosed the 3rd page of the N.I.E. dt. 13.10.05 which carried a report, DNA Test? Oh No) to the effect that the police is not properly investigating the case and instead, are more interested in tracing her antecedents and alleged bad character. They did not reportedly collect the details of calls to the mobile phone seized from the lady, which would have given some clue regarding the alleged connection.

Nor did they attempt a DNA test. The lady had complained to me that she is afraid to come out of the jail on bail as she is under threat. I do not know what is the present stage of the investigation.

9. The matter was accordingly placed before Padmanabhan Nair, J. by the Registry who in turn directed the matter to be placed before the Registrar General for necessary action by his endorsement dated 21.12.2005.

10. The matter was accordingly placed before Padmanabhan Nair, J. on 24.1.2006 by the Registry in the following manner:

Shri Thomas P. Joseph, District Judge, Kozhikode has sent a communication dated 28.10.2005, enclosing a complaint addressed to the Honble Mr. Justice K. Padmanabhan Nair. The communication of the learned District Judge and the complaint are self- explanatory.

If any steps are to be taken with regard to the matter may kindly be indicated. The learned judge on the same day made the following endorsement:

Please verify and report whether the FPR Mini Varghese had sent any petition to this Court and if so what action was taken on that petition? Thereafter the Registry re-submitted the whole file before Padmanabhan Nair, J as under:

It appears that Smt. Mini Varghese, FRP 287, District Jail, Kozhikode had sent a complaint to the Honble High Court, narrating her agonies. The matter was placed before the Honble Mr. Justice K. Thankappan, since His Lordship was dealing with the petitions sent from jail. As per the order of the Honble Judge, the petition was sent to the Superintendent of Police, Thrissur for an enquiry and if found necessary, to register a case. It was also directed that the Superintendent of Police would file a report before this Court within a reasonable time.

Presumably, in pursuance of the said direction, it appears that Crime No. 381/2005 under Sec. 376(g) of the IPC was registered in the Koratty Police Station on 31.08.2005.

When the above matter was reported to this Court, the Honble Judge, as per His Lordships order dated 22.12.2005 directed that the matter be closed.

The entire file is submitted. On re-submission of the file, the learned judge passed the following order on 8.2.2006 thus:

I have carefully gone through Anonymous petition and the documents endorsed along with. One of the documents enclosed alongwith the petition is a petition submitted by FPR 287, Mini Varghese raising an allegation of rape against the head of the Divine Centre Muringoor Rw. Fr. Mathew Thadathil. Of course in the petition she had given the name as Jose Thadthil but there is no room for any doubt regarding the identity of the person.

It is seen that this court had forwarded the petition received from Smt. Mini Varghese to the Suptd. Of Police TCR for necessary action on 7-9-05. The Suptd. Of Police had filed a statement on 5-11-05 to the effect that a Crime as Case No.381 of 2005 at Koratthy Police Station u/s 376(g) of I.P. Code is registered and the same is being investigated by the C I of Police Chalakkudy. The CI of Chalakkudy had also submitted a similar statement on 31-10-05.

It is seen that on 8-11-05 the report of the CI was brought to the notice of the Honble Judge who was dealing with the petition received from jail. He passed an order on 22-12-05 to close the file.

In the meanwhile another petition is seen received from the FPR 287. That petition was forwarded to this court on 11-11-05 and received in this court only on 21-11-05. The Registry had noted that the file was already put up to KT(J) and the petition was to be incorporated in the file.

In the above said the FPR 287 had raised serious allegation regarding the investigation.

It is stated that two police men went to the jail but they did not make enquiry regarding her allegation of rape alleged against the priest.

Even though there is an order to close the file Crl.PP 57929/05. I am of the view that subsequent petition ought to have treated a separate petition praying for an order for proper investigation and separate action taken.

I am of the view that petition can also be clubbed with the anonymous petition.

A perusal of the anonymous petition dated 26- 10-05 shows it contains serious allegation. So it is only just and proper the matter is taken on the judicial side especially in view of the allegation of involvement of senior IAS and IPS officers.

So there will be direction to the Registry to treat the anonymous petition alongwith petition of FPR 287 received in the court on 21-11-05 as petitions praying for an order for proper investigation and Register as a suo motu Crl. Misc. Case. Serve a copy of the above stated petition to the Director General of Prosecution. The copies of the documents except the CDs may also be given to him.

Keep the CD under safe custody for the time being till a decision is taken in the matter.

Register the Crl. Misc. Case and post for admission.

11. Be it noted that the complaint/Petition dated 27.10.2005 received from Mini Varghese by the Registry on 21.11.2005 was placed in the same file based on which Thankappan, J initially ordered an inquiry. Thereafter the entire matter was placed before Thankappan, J on 22.12.2005 itself and the learned Judge directed the closure of the matter thus: No further probe is necessary. Close the file. This fact was also brought to the notice of Padmanabhan Nair, J.

12. However, the learned Judge was of the view that the subsequent petition sent by Mini Varghese dated 27.10.2005 ought to have been treated as a separate petition praying for an order for proper investigation. The learned Judge was also of the view that the said petition was required to be clubbed with the anonymous petition.

13. The Registry in compliance with the directions so issued by the learned judge promptly registered a case in Criminal M.C. No. 405 of 2006 under Section 482 of the Code in which the persons against whom accusations were made have been duly impleaded as the respondents. The matter was listed for admission in the court on 10.2.2006 and was adjourned to 15.2.2006 for serving a notice upon the learned Director General of Prosecution (Public Prosecutor). The learned Judge heard the matter and reserved the case for order. The impugned order was passed on 10.3.2006.

SUBMISSIONS:

14. The validity of the said order is impugned in this appeal on various grounds. Shri Anil B. Divan, learned Senior Counsel appearing on behalf of the appellant submitted that the whole procedure adopted to entertain and initiate proceedings culminating in passing the impugned order suffers from incurable procedural and substantive infirmities rendering the order void. It was further contended that the impugned order suffers from lack of jurisdiction. The jurisdiction of the High Court under Section 482 of the Code is not available to order investigation into any case by the police.

The learned senior counsel proceeded to contend that the directions issued by the High Court could not have been issued even in a public interest litigation under Article 226 of the Constitution of India. On merits, the learned senior counsel submitted that neither the complaint of the victim nor the anonymous petition discloses any irregularity in the matter of investigation. The directions issued by the learned Judge are inquisitorial in nature and sweeping in their width and amplitude directing the Special Investigation Team (SIT) to find out as to whether the appellant committed any crime and if so to investigate into such crime. Such a course is impermissible in law.

15. Shri P.P. Rao, learned senior counsel appearing on behalf of the respondents supported the impugned order. It was submitted that there are no limits imposed in the matter of exercise of jurisdiction under Section 482 of the Code so long as the directions do not run counter to statutory provisions. It was alternatively contended that if for any reason the impugned order is not traceable to Section 482 of the Code the same could be considered as the one passed by the High Court under Article 226 of the Constitution of India.

It was also submitted that the appellant has no locus to challenge the impugned order inasmuch as it is not an accused in any criminal case. It was also contended that even the accused in a criminal case has no right of hearing until filing of a report under Section 173 of the Code.

NATURE OF JURISDICTION UNDER SECTION 482 OF CODE QUA THE REGISTRATION OF A CRIME AND INVESTIGATION:

16. The well defined and demarcated functions in the field of crime detection by the police and its subsequent adjudication by the Courts is so well known and had been The Privy Council observed that just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. It is held:

In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court.

The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S. 491, Criminal P.C., to give directions in the nature of habeas corpus.

In such a case as the present, however, the Courts functions begin when a charge is preferred before it and not until then. It has sometimes been thought that S. 561A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. (emphasis supplied) this Court took the view that there is no mention of any power to stop an investigation by the police. The power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case, the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to investigate has been made independent of any control by the Magistrate. It is further held:

though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. This position has been made further clear by this Court in its J.A.C. Saldanha & ors. thus:

25. There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This has been recognised way back in King Emperor v. Khwaja Nazir Ahmad pp26. This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary. (emphasis is of ours) 18. The observations of this Court in M.C. Abraham &

to be noticed. In the said case it was held:

The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The Investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to disagree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course of investigation. Court reiterated the principle that the police has statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and that power of the police to investigate cannot be interfered with by the exercise of power under the inherent power of the Anr. Etc. , this Court while explaining the nature and purport of the inherent jurisdiction of the High Court observed that in exercising jurisdiction under Section 561-A of the Criminal Procedure Code, 1898, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily enquire as to whether the evidence is reliable or not. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code the High Court dos not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Code of Criminal Procedure.

Bengal & Anr. this Court held that:

The police authorities have under Sections 154 and 156 of the Code a statutory right to investigate into a cognizable offence without requiring any sanction from a judicial authority and even the High Court has no inherent power under Section 561-A of the Code to interfere with the exercise of that statutory power. 2004) 4 SCC 129], this Court while dealing with the nature of inherent powers of the High Court held that the inherent power of the High Court is saved only where an order has been passed by the Criminal Court which is required to be set aside to secure the ends of justice or where the proceedings pending before a court amounts to abuse of the process of Court. The power under Section 482 of the Code can be exercised by the High Court in relation to a matter pending before a criminal court or where a power is exercised by the Court under the Code of Criminal Procedure.

22. In our view, there is nothing like unlimited arbitrary jurisdiction conferred on the High Court under Section 482 of the Code. The power has to be exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down in the Section itself. It is well settled that Section 482 does not confer any new power on the High Court but only saves the inherent power which the court possessed before the enactment of the Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.

23. Chandrachud, J. (as His Lordship then was), in considering the nature of jurisdiction conferred upon the High Court under Section 482 of the Code observed:

It ought to be realised that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.

24. Shri P.P. Rao, learned Senior Counsel contended that in the instant case the High Court properly exercised its inherent power in entertaining the grievance of victim alleging bias on the part of the Investigating Officer which is also one of the allegations made in the anonymous complaint. The submission was that the power available to the High Court under Section 482 of the Code is so wide and cannot be subjected to any limitation, except in cases where there is a specific provision in the Code to provide adequate remedies to the aggrieved person. The inherent power is co-extensive with the text of the Code and it can be exercised in respect of any of the matters covered by the Code, be it investigation, inquiry or trial. The learned counsel in support of the submissions relied L. Muniswamy & Ors. , Central Bureau of Investigation

25. In Muniswamy (supra) the learned Sessions Judge refused to discharge the accused therein and proceeded for framing specific charges as made out from the material on record against the accused persons. The High Court of Karnataka in the exercise of its inherent power quashed the proceedings initiated by the State of Karnataka and accordingly discharged the accused. The High Court as well as this Court found that there was no material on the record on which any court could reasonably convict the accused for any offence. It is under those circumstances this Court came to the conclusion that it would be a sheer waste of public time and money to permit the proceedings to continue against the accused. In that regard this Court observed:

The saving of the High Courts inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution.

26. In Central Bureau of Investigation (supra) this Court cautioned that the inherent power should not be exercised to stifle a legitimate prosecution and the High Court should refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court.

27. In Popular Muthiah (supra) this Court summarized the law as to when the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings. The law was stated in the following manner:

(i) Power can be exercised suo motu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused.

(ii) Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed therefor.

(iii) However, the power under Section 482 Cr.P.C. is not unlimited. It can inter alia be exercised where the Code is silent, where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves application of a special law. It acts ex debito justitiae. It can, thus, do real and substantial justice for which alone it exists.

28. In our view, none of the decisions upon which reliance has been placed lend any support to the submissions made by the learned counsel on behalf of the respondents. On the other hand, in Popular Muthiah (supra) this Court held that the High Court was not correct in issuing direction to take advice of the State Public Prosecutor as to under what section the appellant therein has to be charged and tried and directing CB,CID to take up the matter and reinvestigate and prosecute the appellant therein. Such a power does not come within the purview of Section 482 of the Code of Criminal Procedure. Investigation of an offence is a statutory power of the police. The State in its discretion may get the investigation done by any agency unless there exists an extraordinary situation. This Court further held that the High Court cannot issue directions to investigate the case from a particular angle or by a particular agency.

29. The question that arises for our consideration is whether the contents of the petition submitted by the victim and as well as the allegations made in the anonymous complaint reveal any cause for issuing directions relieving the Investigating Officer of his statutory power and duty to investigate Crime No. 381 of 2005 under Section 376(g) of the Indian Penal Code?

30. The allegations in the anonymous complaint are in two parts. The first part relates to Crime No. 381 of 2005 wherein it is alleged that investigation in crime has been put to cold storage due to influence exerted at high places. This is required to be considered along with the petition sent by the victim herself making certain allegations against the police in general. The allegations are against two police constables that they have tortured her mentally in connection with the investigation of the case. She complained that truth will never come out if the case is entrusted to the police for investigation.

She prayed for a confidential investigation. Neither the anonymous petition nor the complaint made by the victim has been directed against the Investigating Officer complaining of any bias or any attempt on his part to destroy the available evidence.

31. Be it noted that Thankappan, J. vide order dated 22.12.2005 having perused the file including the petition submitted by the victim directed the matter to be closed as it required no further probe.

32. Be that as it may, Crime No. 381 of 2005 itself was registered pursuant to the order of the Magistrate under Section 156 (3) of the Code. We are unable to appreciate as to how the learned Judge could have ordered investigation by Special Investigation Team constituted by himself on the strength of such wild, imaginary and vague allegations. It is difficult to discern the basis for arriving at the conclusion that the entire attempt of the Investigating Officer was to exonerate the accused and make the complainant as accused. The investigation was in progress as is evident from the case diary.

The Special Investigation Team also proceeded on the same lines as that of the Investigating Officer and similar observations as the one made by the Investigating Officer are to be found in the report of the Special Investigation Team submitted to this Court. The facts gathered by the Investigating Officer about the victim were part of the result of India [(2007) 1 SCC 110] upon analysis of the relevant provisions of the Code held that after completion of the investigation if it appears to the Investigating Officer that there is no sufficient evidence, he may decide to release the suspected accused. If, it appears to him that there is sufficient evidence or reasonable ground to place the accused on trial, he has to take necessary steps under Section 170 of the Code. In either case, on completion of the investigation he has to submit a report to the Magistrate under Section 173 of the Code in the prescribed form who is required to consider the report judicially for taking appropriate action thereof. We do not propose to deal with the options available in law to the Magistrate and even to a victim or informant as the case may be.

33. The sum and substance of the above deliberation and analysis of the law cited leads us to an irresistible conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code.

However, we may hasten to add that unfettered discretion does not mean any unaccountable or unlimited discretion and act according to ones own choice. The power to investigate must be exercised strictly on the condition of which that power is granted by the Code itself.

34. In our view, the High Court in exercise of its inherent jurisdiction cannot change the Investigating Officer in the midstream and appoint any agency of its own choice to investigate into a crime on whatsoever basis and more particularly on the basis of complaints or anonymous petitions addressed to a named Judge. Such communications cannot be converted into suo motu proceedings for setting the law in motion. Neither the accused nor the complainant or informant are entitled to choose their own investigating agency to investigate a crime in which they may be interested.

35. It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an Investigating Officer mala fide. That power is to be exercised in rarest of the rare cases where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code.

36 Even in cases where no action is taken by the police on the information given to them, the informants remedy lies under Sections 190, 200 Cr. P.C., but a Writ Petition in such a case is not to be entertained. This Court in Gangadhar When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees Union (Regd.) V. Union of India . It was specifically observed that a writ petition in such cases is not to be entertained.

WHETHER THE HIGH COURT WAS JUSTIFIED IN ENTERTAINING ANONYMOUS PETITION?

37. The second part of the anonymous letter relates to allegations that: (a) in the past two years number of unidentified dead bodies were found on the National Highway and the railway track situated near to the Retreat Centre; (b) there is a practice of burying the dead bodies in the public burial ground without following any procedure; (c) recently the dead body of a lady aged about 30 years was entrusted with one Karyavelu for burying the dead body in the burial ground.

When the dead body was taken for burial, Karyavelu noticed number of injuries on that dead body. He is alleged to have informed the Priest of the Divine Centre that henceforth he will not undertake any burial of such bodies. It is alleged that Karyavelu himself died in the suspicious circumstances and a case was registered under the caption unnatural death; (d) there is a gang in the retreat centre and one Sr. Teresa and two helpers were helping the gang to carry on anti-social activities. It is alleged that the leader of the gang is Rev.

Father Mathew Thadathil. Sibi was his right hand person who also died under the mysterious circumstances.

38. One of the documents enclosed to the anonymous petition is a magazine by name Divine Voice published by the appellant. In one of the volumes published in June, 2005 the names of senior I.A.S and I.P.S officers were mentioned as the members of the Advisory Board; one such named officer is stated to have decided some matter in favour of the appellant.

The High Court in writ petition (c) No. 22543/05 made some observations to the effect that the said officer was really associated with the appellant centre, the order passed by that officer in favour of the appellant is a nullity. Thereafter the name of that officer was deleted from the names of persons of the Advisory Board. Based on such vague and indefinite allegations the High Court gave the following directions without even issuing notice to the appellant:

(i) Government shall issue notification under Section 17 of the Prevention of Corruption Act conferring power to the Special Investigation Team constituted by the court to investigate the offences under the Prevention of Corruption Act;

(ii) The Special Investigation Team shall also inquire into the allegations of foreign exchange violation;

(iii) The Special Investigation Team shall also inquire into the allegations of unnatural deaths stated in the petition.

39. The Special Investigation Team was entrusted with power to investigate into any other cognizable offence in case the Team gets information about the commission of any such cognizable offence. The learned Judge accordingly issued appropriate directions to the Government, the Director General of Police and all other departments of the Government to cooperate and render necessary assistance to the Special Investigation Team.

40. On a careful perusal of the order passed by the learned Judge, we find that the learned Judge initiated suo motu proceedings without even examining as to whether the contents of the anonymous letter and material sent along with it disclosed any prima facie case for ordering an investigation.

The question is: can investigation be ordered by the High Court in exercise of its inherent jurisdiction under Section 482 of the Code based on such vague and indefinite allegations made in unsigned petition without even arriving at any prima facie conclusion that the contents thereof reveal commission of any cognizable offence? Whether such directions could have been issued by the High Court even in exercise of its jurisdiction under Article 226 of the Constitution of India?

41. In Secretary, Minor Irrigation & Rural Engineering this Court took the view that a decision to direct an enquiry against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by an Investigating Agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. This Court relying upon its Union of India & ors. held that a direction for investigation can be given only if an offence is, prima facie, found to have been committed or a persons involvement is prima facie established, but a direction to investigate whether any person has committed an offence or not cannot be legally given.

42. Just to point out that there is no prima facie finding by the High Court while directing an investigation by the impugned order, we would like to quote the following few sentences:

7. As I have already stated there are various other allegations leveled against the Retreat Centre. One of the documents produced in a magazine the front page of a publication by name Divine Voice published by the Divine Retreat Centre at Muringoor. It is captioned as a spiritual congregation of the Government Officials. In the 9th volume published in June 2005, the names of a Senior I.A.S. Officer and a Senior I.P.S. Officer, were stated as the members of the Advisory Board. It is seen that a Writ Petition was filed against the Retreat Centre by an orphanage as W.P.(C) No. 22543 of 2005 before this Court in which a specific allegation of bias was raised against that I.A.S.

Officer. It was alleged that she was associated with the running of the Divine Retreat Centre.

This Court held that if she is really associated with the Retreat Centre, the order passed by the appellate authority in that case is nullity.

Strangely enough from the next month onwards, the name of that officer was deleted from the list of names of persons in the Advisory Board.

But still the name of a Senior I.P.S. Officer is stated as the member of the Advisory Board. It is necessary to investigate the role of Government Officials in the running of the Centre and whether any of such public servants have committed the offences punishable under the provisions of the P.C. Act and take appropriate action taken. Along with the complaint a number of documents and three CDs are enclosed. In the paper cuttings appended in the petition, it is alleged that a number of deaths took place under mysterious circumstances in and around the Retreat Centre. There is allegation of receipt of foreign money without proper authority. It is also necessary to enquire into the allegation that the Centre is getting foreign aid in violation of Foreign Exchange Law and take appropriate action in accordance with law if any violation is established. In view of the allegation that Senior I.A.S. and I.P.S. Officers, are associated with the functioning of the Retreat Centre, and because of the allegations leveled against the Investigating Officer, I am of the view that it is only just and proper that the investigation of Crime No. 381 of 2005 is taken away from the present Investigation Officer which is entrusted with a Senior Police Officer below the rank of Inspector General of Police. It is also necessary to see that the person who is appointed is having some knowledge about the working of the Retreat Centre.

10. The Special Investigation Team shall also enquire into the allegation of unnatural deaths stated in the petition. The team shall enquire as to whether a person by name Karyavelu worked in the burial ground and whether he died under mysterious circumstances. In any case was registered in connection with the death of Karyavelu the present stage of that investigation shall be verified and appropriate action taken. The Team shall also enquire whether there was a person by name Raju attached to the Retreat Centre and whether he died under suspicious circumstances. In case the team gets information regarding any cognizable offences, those matters shall also be investigated in accordance with law. From the above, we find that the High Court has merely quoted certain allegations made against the appellant and others and proceeded on the basis of those allegations made in the anonymous petition without forming any prima facie opinion with regard to those allegations.

43. It is evident from Sections 154, 156 and 157 of the Code that even a police officer can act on the basis of information received or otherwise and proceed to investigate provided he has reason to suspect the commission of a cognizable offence which he is empowered to investigate under Section 156 Cr.P.C. If the essential requirements of the penal provisions are not prima facie disclosed by a First Information Report and the police officer has no reason to suspect the commission of a cognizable offence, no investigation can be undertaken by him based on the information received or otherwise. Can the High Court set the law in motion against the named and unnamed individuals based on the information received by it without recording the reasons that the information received by it prima facie disclosed the commission of a cognizable offence. Setting Criminal Law in motion is fraught with serious consequences, which cannot lightly be undertaken by the High Court even in exercise of its jurisdiction under Article 226 of the Constitution of India. In our view, the High Court in exercise of its whatsoever jurisdiction cannot direct investigation by constituting a Special Investigation Team on the strength of anonymous petitions. The High Courts cannot be converted into Station Houses.

PRINCIPLES OF NATURAL JUSTICE: WHETHER THE APPELLANT HAS NO LOCUS?

44. The order directing the investigation on the basis of such vague and indefinite allegations undoubtedly is in the teeth of principles of natural justice. It was, however, submitted that accused gets a right of hearing only after submission of the charge-sheet, before a charge is framed or the accused is discharged vide Sections 227 & 228 and 239 and 240 Cr.P.C. The appellant is not an accused and, therefore, it was not entitled for any notice from the High Court before passing of the impugned order. We are concerned with the question as to whether the High Court could have passed a judicial order directing investigation against the appellant and its activities without providing an opportunity of being heard to it. The case on hand is a case where the criminal law is directed to be set in motion on the basis of the allegations made in anonymous petition filed in the High Court. No judicial order can ever be passed by any court without providing a reasonable opportunity of being heard to the person likely to be affected by such order and particularly when such order results in drastic consequences of affecting ones own reputation. In our view, the impugned order of the High Court directing enquiry and investigation into allegations in respect of which not even any complaint/information has been lodged with the police is violative of principles of natural justice.

45. It is unnecessary to go into the question as to whether Divine Retreat Centre is not a person contemplated by Article 21 of the Constitution and express any opinion as to whether any right guaranteed by Article 21 of the Constitution has been infringed. Suffice it to note that, the Director of the appellant institution has been impleaded as a party respondent in the criminal petition and the whole of the allegations in the anonymous petition are leveled against the appellant and in such a situation it was imperative for the High Court to put the appellant on notice before passing the impugned order.

The appellant undoubtedly is aggrieved by the impugned order and, therefore, entitled to invoke the jurisdiction of this Court under Article 136 of the Constitution down the law that hearing to the accused is provided by the Code under specified circumstances are not relevant to decide the issue of locus in cases where challenge is to a judicial order under which institutions and/or persons connected therewith are subjected to inquiry and investigation.

46. Here is a case where no information has been given to the police by any informant alleging commission of any cognizable offence by the appellant and the persons associated with the appellant institution. It is a peculiar case of its own kind where an anonymous petition is sent directly in the name of a learned judge of the Kerala High Court, which was suo motu taken up as a proceeding under Section 482 of the Code.

The High Court ought not to have entertained such a petition for taking the same on file under Section 482 of the Code.

47. It was contended that nomenclature of the petition is not decisive. The High Court can exercise power suo motu either under Article 226 or under Section 482 Cr. P.C. or under both. It was submitted that if for any reason the petition entertained by the High Court is held not maintainable under Section 482 of the Code, the same can always be treated as the one filed under Article 226 of the Constitution of India. Reliance was placed upon the Judicial Magistrate . The decision in Pepsi Foods (supra) is an authority for the proposition that nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. This Court took the view that if the court finds that the appellant could not invoke its jurisdiction under Article 226, the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. The observations were made in the context of correcting grave errors that might be committed by the subordinate courts. The decision does not lay down any law that the High Court in exercise of its power under Section 482 of the Code or Article 227 may be resorted to constitute any special Investigating Agency to investigate into allegations made for the first time in an anonymous petition.

48. In our view, the whole of public law remedies available under Article 226 of the Constitution of India and the constituent power to issue writs in the natu

49. pp

50. pre of mandamus, certiorari, prohibition and co- warranto are neither echoed nor transplanted into Section 482. May be both the powers to issue writs and pass appropriate orders under Section 482 of the Code are conferred upon the High Court but they undoubtedly operate in different fields.

WHETHER THE ANONYMOUS PETITION IS TO BE TREATED AS PUBLIC INTEREST LITIGATION ?

49. The question that falls for our consideration is whether the anonymous letter sent in the name of a Judge can be entertained as Public Interest Litigation? It is well settled that a public interest litigation can be entertained by the Constitutional Courts only at the instance of a bona fide litigant. The author of the letter in this case is anonymous, there is no way to verify his bonafides and in fact no effort was made by the Court to verify about the authenticity, truth or otherwise of the contents of the petition. It is not the case of the appellant that no Writ Petition under Article 226 of the Constitution of India can be entertained on the strength of a letter addressed by a bona fide litigant to the High Court. This accepted a letter written to the Supreme Court by one Sunil Batra, a prisoner from Tihar Jail, Delhi complaining of State of U.P. , this Court entertained letter sent by the two Professors of Delhi University seeking enforcement of the constitutional right of the inmates in a Protective Home, at Agra who were living in inhuman and degrading conditions. In Miss Veena Sethi V. State of Bihar , this Court treated letter addressed to a Judge of this Court by the Free Legal Aid Committee at Hazaribagh, Bihar as a writ petition. In Assam & ors. upon which reliance has been placed by Shri P.P. Rao, this Court entertained a letter addressed by Shri Kuldip Nayar, an eminent journalist, in his capacity as President of Citizens for Democracy to one of the judges of this Court complaining of human rights violations of TADA detenues and the same was treated as a petition under Article 32 of the Constitution of the India. But in none of these cases, the Court entertained anonymous petition and converted the same into a Public Interest Litigation. We do not propose to burden this judgment with various authoritative pronouncements of this Court laying down the parameters of Public Interest Litigation. Suffice it to recapitulate that this Court uniformly and consistently held that the individual who moves the court for judicial redress in cases of Public Interest Litigation must be acting bone fide with a view to vindicating the cause of justice and not for any personal gain or private profit or of the political motivation or other oblique consideration. The Court should not allow itself to be activised at the instance of such person and must reject his application at the threshold, whether it be in the form of a letter addressed to the court or even in the form of a regular India & ors. , this Court in clear and unequivocal terms observed that it would be prudent for the constitutional courts to confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party, where there is an effective legal- aid organization which can take care of such cases.

50. The law in this regard is summarized in Janata It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration.

Similarly, a vexatious petition under the colour of PIL brought before the Court for vindicating any personal grievance, deserves rejection at the threshold. Maharashtra & ors. this Court observed:

The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not be publicity-oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. The Court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well as to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs. Ors. , this Court administered a caution stating when communications complaining of violation of rights of the deprived and vulnerable sections of the community are sent to the court, care and caution should be adopted to ensure that the process of the court is not abused or misused. The Court should be prima facie satisfied that the information laid before it is of such a nature that it calls for examination and this prima facie satisfaction may be derived from the credentials of the informant, namely, what is the character or standing of the informant or from the nature of the information given by him, namely, whether it is vague and indefinite or contains specific allegations as a result of survey or investigation or from the gravity or seriousness of the complaint set out in the information or from any other circumstance or circumstances appearing from the communication addressed to the court or to a Judge of the court on behalf of the court.

53. How to verify the credentials, character or standing of the informant who does not disclose his identity? In the instant case, there is no whisper in the order passed by the High Court about any attempts made to verify the credentials, character or standing of the informant. Obviously, the High Court could not have verified the same since the petition received by it is an unsigned one.

ors. (supra), this Court visualized grave danger inherent in a practice where a mere letter is entertained as a petition from a person whose antecedents and status are unknown or so uncertain that no sense of responsibility can, without anything more, be attributed to the communication. It has been observed that the document petitioning the court for relief should be supported by satisfactory verification. This requirement is all the greater where petitions are received by the Court through the post. It is never beyond the bound of possibility that an unverified communication received through the post by the Court may in fact have been employed mala fide, as an instrument of coercion or blackmail or other oblique motive against a person named therein who holds a position of honour and respect in society. The Court must be ever vigilant against the abuse of its process. It cannot do that better in the matter than insisting at the earliest stage, and before issuing notice to the respondent, that an appropriate verification of the allegations be supplied.

55. In our view, the Public Interest Litigant must disclose his identity so as to enable the court to decide that the informant is not a wayfarer or officious intervener without any interest or concern.

56. In such view of the matter the suo motu action initiated cannot be treated as the one in public interest litigation.

THE IMPORTANCE OF ROSTER:

57. It is clear from the record that the learned Judge was not dealing with any public interest litigation cases as on the date of entertaining anonymous petition. It is beyond pale of any doubt and controversy that the administrative control of the High Court vests in the Chief Justice of the High Court alone and it is his prerogative to distribute business of the High Court both judicial and administrative; that the Chief justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted; and the puisne judges can only do that work as is allotted to them by the Chief Justice or under his directions; that the puisne judges cannot pick and choose any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice. (See State of

58. This Court in more than one case expressed its reservation about individual judges entertaining the communications and petitions addressed to them to pass of India & ors. , the Court in clear and unequivocal terms declared that communications and petitions addressed to a particular judge are improper and violate the institutional personality of the court. They also embarrass the Judge to whom they are personally addressed. The fundamental conception of the Court must be respected, that it is a single indivisible institution, of united purpose and existing solely for the high constitutional functions for which it has been created. The conception of the Court as a loose aggregate of individual Judges, to one or more of whom judicial access may be particularly had, undermines its very existence and endangers its proper and effective functioning.

59. In our view, the learned judge ought not to have entertained the anonymous petition, contents of which remain unverified and made it basis for setting the law in motion as against the appellant as he was not entrusted with the judicial duty of disposing of PIL matters.

60. Institutions own reputation is a priceless treasure.

History teaches us that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility to resolve the issues which are otherwise not entrusted to it by adopting procedures which are otherwise not known.

61. There is heavy duty cast upon the constitutional courts to protect themselves from the onslaught unleashed by unscrupulous litigants masquerading as Public Interest Litigants. The individual judges ought not to entertain communications and letters personally addressed to them and initiate action on the judicial side based on such communication so as to avoid embarrassment; that all communications and petitions invoking the jurisdiction of the court must be addressed to the entire Court, that is to say, the Chief Justice and his companion Judges. The individual letters, if any, addressed to a particular judge are required to be placed before the Chief Justice for consideration as to the proposed action on such petitions. Each Judge cannot decide for himself as to what communication should be entertained for setting the law in motion be it in PIL or in any jurisdiction.

62. It is needless to say that none of these aspects have been taken into consideration by the High Court before setting the criminal law in motion as against the appellant. The sweeping directions issued by the Court are in the nature of ordering an inquisition against the appellant and the persons connected with it to find out as to whether they have committed any cognizable offence. Such a course is impermissible in law.

63. For the aforesaid reasons, directions issued by the High Court constituting the Special Investigation Team to investigate into the allegations made in anonymous petition are set aside.

RELIEF

64. However, the fact remains that the Circle Inspector of Police, Chalakuddy having registered Crime No. 381 of 2005 made investigation in exercise of statutory power coupled with duty under the orders of learned Judicial First Class Magistrate, Chalakuddy. The learned Judge having entertained the petition/complaint from the victim ordered further investigation into the crime by the Special Investigation Team headed by the third respondent. The third respondent having completed the investigation arrived at certain conclusions but unnecessarily kept the matter pending on the ground that the paternity of the first child is to be verified with the accused and some other persons who were also found closely associated with the victim during the relevant period. This is beyond ones imagination as to how and why such an inquiry is required to be made. The First Information Report, material gathered during the investigation, contents of the victims complaint and conclusions drawn by the Special Investigation Team themselves do not justify any such further enquiry.

65. In the circumstances of the case, we direct the third respondent to make available the material gathered during the course of investigation in Crime No. 381 of 2005 to the Circle Inspector of Police, Chalakuddy (Investigating Officer) within two weeks from the date of the receipt of copy of this order. Thereafter, the Investigating Officer shall submit appropriate report in accordance with the provisions of the Code within four weeks before the Magistrate who shall consider the report to be so filed judicially in accordance with law.

66. We make it clear that we have not expressed any opinion whatsoever on the merits of the case.

67. Subject to the above directions the impugned order of the High Court is set aside. The appeal is accordingly allowed.

68. Since the question is one of general importance, we would direct the copies of this judgment should be sent to the High Courts in all the States.

Wednesday, February 23, 2011

An aggrieved person can claim that the offence he alleges, to be investigated properly, but shall not claim that it be investigated by any particular agency of his choice

Sakiri Vasu Vs. State of U.P. and Ors. (2008)2SCC409
A.K. Mathur & Markandey Katju
CRIMINAL APPEAL NO. 1685 OF 2007 (Arising out of Special Leave Petition (Criminal) No.6404/ 2007) MARKANDEY KATJU, J.
1. Leave granted.
2. This appeal is directed against the impugned judgment and order dated 13.7.2007 passed by the Allahabad High Court in Criminal Misc. Writ Petition No. 9308 of 2007.
3. Heard learned counsel for the parties and perused the record.
4. The son of the appellant was a Major in the Indian Army. His dead body was found on 23.8.2003 at Mathura Railway Station. The G.R.P, Mathura investigated the matter and gave a detailed report on 29.8.2003 stating that the death was due to an accident or suicide.
5. The Army officials at Mathura also held two Courts of Inquiry and both times submitted the report that the deceased Major S. Ravishankar had committed suicide at the railway track at Mathura junction. The Court of Inquiry relied on the statement of the Sahayak (domestic servant) Pradeep Kumar who made a statement that deceased Major Ravishankar never looked cheerful; he used to sit on a chair in the verandah gazing at the roof with blank eyes and deeply involved in some thoughts and used to remain oblivious of the surroundings. The Court of Inquiry also relied on the deposition of the main eye-witness, gangman Roop Singh, who stated that Major Ravishankar was hit by a goods train that came from Delhi.
6. The appellant who is the father of Major Ravishankar alleged that in fact it was a case of murder and not suicide. He alleged that in the Mathura unit of the Army there was rampant corruption about which Major Ravishankar came to know and he made oral complaints about it to his superiors and also to his father. According to the appellant, it was for this reason that his son was murdered.
7. The first Court of Inquiry was held by the Army which gave its report in September, 2003 stating that it was a case of suicide. The appellant was not satisfied with the findings of this Court of Inquiry and hence on 22.4.2004 he made a representation to the then Chief of the Army Staff, General N.C. Vij, as a result of which another Court of Inquiry was held.
However, the second Court of Inquiry came to the same conclusion as that of the first inquiry namely, that it was a case of suicide.
8. Aggrieved, a writ petition was filed in the High Court which was dismissed by the impugned judgment. Hence this appeal.
9. The petitioner (appellant herein) prayed in the writ petition that the matter be ordered to be investigated by the Central Bureau of Investigation (in short CBI). Since his prayer was rejected by the High Court, hence this appeal by way of special leave.
10. It has been held by this Court in CBI & another vs. Rajesh Gandhi and another 1997 Cr.L.J 63 (vide para 8) that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice.
11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made.
The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
12. Thus in Mohd. Yousuf vs. Smt. Afaq Jahan & Anr. JT 2006(1) SC 10, this Court observed:
The clear position therefore is that any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigating under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter..
13. The same view was taken by this Court in Dilawar Singh vs. State of Delhi JT 2007 (10) SC 585 (vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) Cr.P.C., and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C.
14. Section 156 (3) states:
Any Magistrate empowered under Section 190 may order such an investigation as abovementioned. The words `as abovementioned obviously refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station.
15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report, vide State of Bihar vs. A.C. Saldanna AIR 1980 SC 326 (para 19).
17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.
18. It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.
19. The reason for the rule (doctrine of implied power) is quite apparent.
Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Construction (3rd edn. page 267):- If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission.
20. In ascertaining a necessary implication, the Court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein.
21. An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Thus in ITO, Cannanore vs. M.K. Mohammad Kunhi, AIR 1969 SC 430, this Court held that the income tax appellate tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Tax Act.
22. Similar examples where this Court has affirmed the doctrine of implied powers are Union of India vs. Paras Laminates AIR 1991 SC 696, Reserve Bank of India vs. Peerless General Finance and Investment Company Ltd AIR 1996 SC 646 (at p. 656), Chief Executive Officer & Vice Chairman Gujarat Maritime Board vs. Haji Daud Haji Harun Abu 1996 (11) SCC 23, J.K. Synthetics Ltd. vs. Collector of Central Excise, AIR 1996 SC 3527, State of Karnataka vs. Vishwabharati House Building Co-op Society 2003 (2) SCC 412 (at p. 432) etc.
23. In Savitri vs. Govind Singh Rawat AIR 1986 SC 984 this Court held that the power conferred on the Magistrate under Section 125Cr.P.C. to grant maintenance to the wife implies the power to grant interim maintenance during the pendency of the proceeding, otherwise she may starve during this period.
24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is verybriefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision.
25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).
26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C.
Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?
27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.
28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere.
29. In Union of India vs. Prakash P. Hinduja and another 2003 (6) SCC 195 (vide para 13), it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being done by the officer-in-charge of the concerned police station, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same (though he should not himself investigate).
30. It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a proper investigation has not been made by the officer-in-charge of the concerned police station, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes, do the investigation vide CBI vs. State of Rajasthan and another 2001 (3) SCC 333 (vide para 11), R.P. Kapur vs. S.P. Singh AIR 1961 SC 1117 etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar vs. A.C. Saldanna (supra).
31. No doubt the Magistrate cannot order investigation by the CBI vide CBI vs. State of Rajasthan and another (Supra), but this Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them.
32. In the present case, there was an investigation by the G.R.P., Mathura and also two Courts of Inquiry held by the Army authorities and they found that it was a case of suicide. Hence, in our opinion, the High Court was justified in rejecting the prayer for a CBI inquiry.
33. In Secretary, Minor Irrigation & Rural Engineering Services U.P. and others vs. Sahngoo Ram Arya and another 2002 (5) SCC 521 (vide para 6) , this Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by the CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation.
34. In the present case, we are of the opinion that the material on record does not disclose a prima facie case calling for an investigation by the CBI.
The mere allegation of the appellant that his son was murdered because he had discovered some corruption cannot, in our opinion, justify a CBI inquiry, particularly when inquiries were held by the Army authorities as well as by the G.R.P. at Mathura, which revealed that it was a case of suicide.
35. It has been stated in the impugned order of the High Court that the G.R.P. at Mathura had investigated the matter and gave a detailed report on 29.8.2003. It is not clear whether this report was accepted by the Magistrate or not. If the report has been accepted by the Magistrate and no appeal/revision was filed against the order of the learned Magistrate accepting the police report, then that is the end of the matter. However, if the Magistrate has not yet passed any order on the police report, he may do so in accordance with law and in the light of the observations made above.
36. With the above observations, this appeal stands dismissed.
37. Let a copy of this judgment be sent by the Secretary General of this Court to the Registrar Generals/Registrars of all the High Courts, who shall circulate a copy of this Judgment to all the Honble Judges of the High Courts.

Anticipatory bail – Murder - Granted


Equivalent Citation: AIR2011SC312, 
Siddharam Satlingappa Mhetre
Vs. 
State of Maharashtra and Ors.
Hon'ble Judges:
Dalveer Bhandari and K.S. Panicker Radhakrishnan, JJ.

Dalveer Bhandari, J.
1. Leave granted.
2. This appeal involves issues of great public importance pertaining to the importance of individual's personal liberty and the society's interest.
3. The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty.
4. Brief facts which are necessary to dispose of this appeal are recapitulated as under:
The Appellant, who belongs to the Indian National Congress party (for short 'Congress party') is the alleged accused in this case. The case of the prosecution, as disclosed in the First Information Report (for short 'FIR'), is that Sidramappa Patil was contesting election of the State assembly on behalf of the Bhartiya Janata Party (for short 'BJP'). In the FIR, it is incorporated that Baburao Patil, Prakash Patil, Mahadev Patil, Mallikarjun Patil, Apparao Patil, Yeshwant Patil were supporters of the Congress and so also the supporters of the Appellant Siddharam Mhetre and opposed to the BJP candidate.
5. On 26.9.2009, around 6.00 p.m. in the evening, Sidramappa Patil of BJP came to the village to meet his party workers. At that juncture, Shrimant Ishwarappa Kore, Bhimashankar Ishwarappa Kore, Kallapa Gaddi, Sangappa Gaddi, Gafur Patil, Layappa Gaddi, Mahadev Kore, Suresh Gaddi, Suresh Zhalaki, Ankalgi, Sarpanch of village Shivmurti Vijapure met Sidramappa Patil and thereafter went to worship and pray at Layavva Devi's temple. After worshipping the Goddess when they came out to the assembly hall of the temple, these aforementioned political opponents namely, Baburao Patil, Prakash Patil, Gurunath Patil, Shrishail Patil, Mahadev Patil, Mallikarjun Patil, Annarao @ Pintu Patil, Hanumant Patil, Tammarao Bassappa Patil, Apparao Patil, Mallaya Swami, Sidhappa Patil, Shankar Mhetre, Usman Sheikh, Jagdev Patil, Omsiddha Pujari, Panchappa Patil, Mahesh Hattargi, Siddhappa Birajdar, Santosh Arwat, Sangayya Swami, Anandappa Birajdar, Sharanappa Birajdar, Shailesh Chougule, Ravi Patil, Amrutling Koshti, Ramesh Patil and Chandrakant Hattargi suddenly came rushing in their direction and loudly shouted, "why have you come to our village? Have you come here to oppose our Mhetre Saheb? They asked them to go away and shouted Mhetre Saheb Ki Jai.
6. Baburao Patil and Prakash Patil from the aforementioned group fired from their pistols in order to kill Sidramappa Patil and the other workers of the BJP. Bhima Shankar Kore was hit by the bullet on his head and died on the spot. Sangappa Gaddi, Shivmurti Vjapure, Jagdev Patil, Layappa Patil, Tammaro Patil were also assaulted. It is further mentioned in the FIR that about eight days ago, the Appellant Siddharam Mhetre and his brother Shankar Mhetre had gone to the village and talked to the abovementioned party workers and told them that, "if anybody says anything to you, then you tell me. I will send my men within five minutes. You beat anybody. Do whatever."
7. According to the prosecution, the Appellant along with his brother instigated their party workers which led to killing of Bhima Shanker Kora. It may be relevant to mention that the alleged incident took place after eight days of the alleged incident of instigation.
8. The law relating to bail is contained in Sections 436 to 450 of chapter XXXIII of the Code of Criminal Procedure, 1973. Section 436 deals with situation, in what kind of cases bail should be granted. Section 436 deals with the situation when bail may be granted in case of a bailable offence. Section 439 deals with the special powers of the High Court or the Court of Sessions regarding grant of bail. Under Sections 437 and 439 bail is granted when the accused or the detenu is in jail or under detention.
9. The provision of anticipatory bail was introduced for the first time in the Code of Criminal Procedure in 1973.
10. Section 438 of the Code of Criminal Procedure, 1973 reads as under:
438. Direction for grant of bail to person apprehending arrest.- (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.
(1-A) Where the Court grants an interim order under Sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.
(2) When the High Court or the Court of Session makes a direction under Sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including -
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the 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;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under Sub-section (3) of Section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section (1).
Why was the provision of anticipatory bail introduced? -Historical perspective
11. The Code of Criminal Procedure, 1898 did not contain any specific provision of anticipatory bail. Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether the courts had an inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did not have such power.
12. The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the necessity of introducing a provision in the Code of Criminal Procedure enabling the High Court and the Court of Sessions to grant "anticipatory bail". It observed in para 39.9 of its report (Volume I) and the same is set out as under:
The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. Though there is a conflict of judicial opinion about the power of a court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.
The Law commission recommended acceptance of the suggestion.
13. The Law Commission in para 31 of its 48th Report (July, 1972) made the following comments on the aforesaid clause:
The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission. We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.
We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interests of justice.
It will also be convenient to provide that notice of the interim order as well as of the final orders will be given to the Superintendent of Police forthwith.
14. Police custody is an inevitable concomitant of arrest for non-bailable offences. The concept of anticipatory bail is that a person who apprehends his arrest in a non-bailable case can apply for grant of bail to the Court of Sessions or to the High Court before the arrest.
Scope and ambit of Section 438 Code of Criminal Procedure
15. It is apparent from the Statement of Objects and Reasons for introducing Section 438 in the Code of Criminal Procedure, 1973 that it was felt imperative to evolve a device by which an alleged accused is not compelled to face ignominy and disgrace at the instance of influential people who try to implicate their rivals in false cases.
16. The Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to the present Section 438 Code of Criminal Procedure The only two clear provisions of law by which bail could be granted were Sections 437 and 439 of the Code. Section 438 was incorporated in the Code of Criminal Procedure, 1973 for the first time.
17. It is clear from the Statement of Objects and Reasons that the purpose of incorporating Section 438 in the Code of Criminal Procedure was to recognize the importance of personal liberty and freedom in a free and democratic country. When we carefully analyze this section, the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court.
18. The High Court in the impugned judgment has declined to grant anticipatory bail to the Appellant and aggrieved by the said order, the Appellant has approached this Court by filing this appeal.
19. Mr. Shanti Bhushan, learned senior counsel appearing for the Appellant submitted that the High Court has gravely erred in declining the anticipatory bail to the Appellant. He submitted that Section 438 Code of Criminal Procedure was incorporated because sometime influential people try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. He pointed out that in recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase.
20. Mr. Bhushan submitted that the Appellant has been implicated in a false case and apart from that he has already joined the investigation and he is not likely to abscond, or otherwise misuse the liberty while on bail, therefore, there was no justification to decline anticipatory bail to the Appellant.
21. Mr. Bhushan also submitted that the FIR in this case refers to an incident which had taken place on the instigation of the Appellant about eight days ago. According to him, proper analysis of the averments in the FIR leads to irresistible conclusion that the entire prosecution story seems to be a cock and bull story and no reliance can be placed on such a concocted version.
22. Mr. Bhushan contended that the personal liberty is the most important fundamental right guaranteed by the Constitution. He also submitted that it is the fundamental principle of criminal jurisprudence that every individual is presumed to be innocent till he or she is found guilty. He further submitted that on proper analysis of Section 438 Code of Criminal Procedure the legislative wisdom becomes quite evident that the legislature wanted to preserve and protect personal liberty and give impetus to the age-old principle that every person is presumed to be innocent till he is found guilty by the court.
23. Mr. Bhushan also submitted that an order of anticipatory bail does not in any way, directly or indirectly, take away from the police their power and right to fully investigate into charges made against the Appellant. He further submitted that when the case is under investigation, the usual anxiety of the investigating agency is to ensure that the alleged accused should fully cooperate with them and should be available as and when they require him. In the instant case, when the Appellant has already joined the investigation and is fully cooperating with the investigating agency then it is difficult to comprehend why the Respondent is insistent for custodial interrogation of the Appellant? According to the Appellant, in the instant case, the investigating agency should not have a slightest doubt that the Appellant would not be available to the investigating agency for further investigation particularly when he has already joined investigation and is fully cooperating with the investigating agency.
24. Mr. Bhushan also submitted that according to the General Clauses Act, 1897 the court which grants the bail also has the power to cancel it. The grant of bail is an interim order. The court can always review its decision according to the subsequent facts, circumstances and new material. Mr. Bhushan also submitted that the exercise of grant, refusal and cancellation of bail can be undertaken by the court either at the instance of the accused or a public prosecutor or a complainant on finding fresh material and new circumstances at any point of time. Even the Appellant's reluctance in not fully cooperating with the investigation could be a ground for cancellation of bail.
25. Mr. Bhushan submitted that a plain reading of the Section 438 Code of Criminal Procedure clearly reveals that the legislature has not placed any fetters on the court. In other words, the legislature has not circumscribed court's discretion in any manner while granting anticipatory bail, therefore, the court should not limit the order only for a specified period till the charge-sheet is filed and thereafter compel the accused to surrender and ask for regular bail under Section 439 Code of Criminal Procedure , meaning thereby the legislature has not envisaged that the life of the anticipatory bail would only last till the charge-sheet is filed. Mr. Bhushan submitted that when no embargo has been placed by the legislature then this Court in some of its orders was not justified in placing this embargo.
26. Mr. Bhushan submitted that the discretion which has been granted by the legislature cannot and should not be curtailed by interpreting the provisions contrary to the legislative intention. The courts' discretion in grant or refusal of the anticipatory bail cannot be diluted by interpreting the provisions against the legislative intention. He submitted that the life is never static and every situation has to be assessed and evaluated in the context of emerging concerns as and when it arises. It is difficult to visualize or anticipate all kinds of problems and situations which may arise in future.
Law has been settled by an authoritative pronouncement of the Supreme Court
27. The Constitution Bench of this Court in Gurbaksh Singh Sibbia and Ors. v. State of Punjab MANU/SC/0215/1980 : (1980) 2 SCC 565 had an occasion to comprehensively deal with the scope and ambit of the concept of anticipatory bail. Section 438 Code of Criminal Procedure is an extraordinary provision where the accused who apprehends his/her arrest on accusation of having committed a non-bailable offence can be granted bail in anticipation of arrest. The Constitution Bench's relevant observations are set out as under:
...A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.
28. Mr. Bhushan referred to a Constitution Bench judgment in Sibbia's case (supra) to strengthen his argument that no such embargo has been placed by the said judgment of the Constitution Bench. He placed heavy reliance on para 15 of Sibbia's case (supra), which reads as under:
15. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a 'Code for the grant of anticipatory bail', which really is the business of the legislature, it can at best furnish broad guide-lines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail "if it thinks fit". The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the courts by law.
29. Mr. Bhushan submitted that the Constitution Bench in Sibbia's case (supra) also mentioned that "we see no valid reason for rewriting Section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court and the Court of Session but, for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal".
30. Mr. Bhushan submitted that the court's orders in some cases that anticipatory bail is granted till the charge-sheet is filed and thereafter the accused has to surrender and seek bail application under Section 439 Code of Criminal Procedure is neither envisaged by the provisions of the Act nor is in consonance with the law declared by a Constitution Bench in Sibbia's case (supra) nor it is in conformity with the fundamental principles of criminal jurisprudence that accused is considered to be innocent till he is found guilty nor in consonance with the provisions of the Constitution where individual's liberty in a democratic society is considered sacrosanct.
31. Mr. Mahesh Jethmalani, learned senior counsel appearing for Respondent No. 2, submitted that looking to the facts and circumstances of this case, the High Court was justified in declining the anticipatory bail to the Appellant. He submitted that the anticipatory bail ought to be granted in rarest of rare cases where the nature of offence is not very serious. He placed reliance on the case of Pokar Ram v. State of Rajasthan and Ors. MANU/SC/0088/1985 : (1985) 2 SCC 597 and submitted that in murder cases custodial interrogation is of paramount importance particularly when no eye witness account is available.
32. Mr. Jethmalani fairly submitted that the practice of passing orders of anticipatory bail operative for a few days and directing the accused to surrender before the Magistrate and apply for regular bail are contrary to the law laid down in Sibbia's case (supra). The decisions of this Court in Salauddin Abdulsamad Shaikh v. State of Maharashtra MANU/SC/0280/1996 : (1996) 1 SCC 667, K.L. Verma v. State and Anr. MANU/SC/1493/1998 : (1998) 9 SCC 348, Adri Dharan Das v. State of West Bengal MANU/SC/0120/2005 : (2005) 4 SCC 303 and Sunita Devi v. State of Bihar and Anr. MANU/SC/1032/2004 : (2005) 1 SCC 608 are in conflict with the above decision of the Constitution Bench in Sibbia's case (supra). He submitted that all these orders which are contrary to the clear legislative intention of law laid down in Sibbia's case (supra) are per incuriam. He also submitted that in case the conflict between the two views is irreconcilable, the court is bound to follow the judgment of the Constitution Bench over the subsequent decisions of Benches of lesser strength.
33. He placed reliance on N. Meera Rani v. Government of Tamil Nadu and Anr. MANU/SC/0381/1989 : (1989) 4 SCC 418 wherein it was perceived that there was a clear conflict between the judgment of the Constitution Bench and subsequent decisions of Benches of lesser strength. The Court ruled that the dictum in the judgment of the Constitution Bench has to be preferred over the subsequent decisions of the Bench of lesser strength. The Court observed thus:
...All subsequent decisions which are cited have to be read in the light of the Constitution Bench decision since they are decisions by Benches comprising of lesser number of judges. It is obvious that none of these subsequent decisions could have intended taking a view contrary to that of the Constitution bench in Rameshwar Shaw's case MANU/SC/0041/1963 : (1964) 4 SCR 921
34. He placed reliance on another judgment of this Court in Vijayalaxmi Cashew Company and Ors. v. Dy. Commercial Tax Officer and Anr. MANU/SC/1015/1996 : (1996) 1 SCC 468. This Court held as under:
... It is not possible to uphold the contention that perception of the Supreme Court, as will appear from the later judgments, has changed in this regard. A judgment of a Five Judge Bench, which has not been doubted by any later judgment of the Supreme Court cannot be treated as overruled by implication.
35. He also placed reliance on Union of India and Ors. v. K. S. Subramanian MANU/SC/0468/1976 : (1976) 3 SCC 677 and State of U.P. v. Ram Chandra Trivedi MANU/SC/0465/1976 : (1976) 4 SCC 52 and submitted that in case of conflict, the High Court has to prefer the decision of a larger Bench to that of a smaller Bench.
36. Mr. Jethmalani submitted that not only the decision in Sibbia's case (supra) must be followed on account of the larger strength of the Bench that delivered it but the subsequent decisions must be held to be per incuriam and hence not binding since they have not taken into account the ratio of the judgment of the Constitution Bench.
37. He further submitted that as per the doctrine of 'per incuriam', any judgment which has been passed in ignorance of or without considering a statutory provision or a binding precedent is not good law and the same ought to be ignored. A perusal of the judgments in Salauddin Abdulsamad Shaikh v. State of Maharashtra, K.L. Verma v. State and Anr., Adri Dharan Das v. State of West Bengal and Sunita Devi v. State of Bihar and Anr. (supra) indicates that none of these judgments have considered para 42 of Sibbia's case (supra) in proper perspective. According to Mr. Jethmalani, all subsequent decisions which have been cited above have to be read in the light of the Constitution Bench's decision in Sibbia's case (supra) since they are decisions of Benches comprised of lesser number of judges. According to him, none of these subsequent decisions could be intended taking a view contrary to that of the Constitution Bench in Sibbia's case (supra).
38. Thus, the law laid down in para 42 by the Constitution Bench that the normal rule is not to limit operation of the order of anticipatory bail, was not taken into account by the courts passing the subsequent judgments. The observations made by the courts in the subsequent judgments have been made in ignorance of and without considering the law laid down in para 42 which was binding on them. In these circumstances, the observations made in the subsequent judgments to the effect that anticipatory bail should be for a limited period of time, must be construed to be per incuriam and the decision of the Constitution Bench preferred.
39. He further submitted that the said issue came up for consideration before the Madras High Court reported in Palanikumar and Anr. v. State 2007 (4) CTC 1 wherein after discussing all the judgments of this Court on the issue, the court held that the subsequent judgments were in conflict with the decision of the Constitution Bench in Sibbia's case (supra) and in accordance with the law of precedents, the judgment of the Constitution Bench is biding on all courts and the ratio of that judgment has to be applicable for all judgments decided by the Benches of same or smaller combinations. In the said judgment of Sibbia's case (supra) it was directed that the anticipatory bail should not be limited in period of time.
40. We have heard the learned Counsel for the parties at great length and perused the written submissions filed by the learned Counsel for the parties.
Relevance and importance of personal liberty
41. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of right to life and liberty.
42. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. That is why "liberty" is called the very quintessence of a civilized existence.
43. Origin of "liberty"' can be traced in the ancient Greek civilization. The Greeks distinguished between the liberty of the group and the liberty of the individual. In 431 B.C., an Athenian statesman described that the concept of liberty was the outcome of two notions, firstly, protection of group from attack and secondly, the ambition of the group to realize itself as fully as possible through the self-realization of the individual by way of human reason. Greeks assigned the duty of protecting their liberties to the State. According to Aristotle, as the state was a means to fulfil certain fundamental needs of human nature and was a means for development of individuals' personality in association of fellow citizens so it was natural and necessary to man. Plato found his "republic" as the best source for the achievement of the self-realization of the people.
44. Chambers' Twentieth Century Dictionary defines "liberty" as "Freedom to do as one pleases, the unrestrained employment of natural rights, power of free chance, privileges, exemption, relaxation of restraint, the bounds within which certain privileges are enjoyed, freedom of speech and action beyond ordinary civility".
45. It is very difficult to define the "liberty". It has many facets and meanings. The philosophers and moralists have praised freedom and liberty but this term is difficult to define because it does not resist any interpretation. The term "liberty" may be defined as the affirmation by an individual or group of his or its own essence. It needs the presence of three factors, firstly, harmonious balance of personality, secondly, the absence of restraint upon the exercise of that affirmation and thirdly, organization of opportunities for the exercise of a continuous initiative.
46. "Liberty" may be defined as a power of acting according to the determinations of the will. According to Harold Laski, liberty was essentially an absence of restraints and John Stuard Mill viewed that "all restraint", qua restraint is an evil". In the words of Jonathon Edwards, the meaning of "liberty" and freedom is:
Power, opportunity or advantage that any one has to do as he pleases, or, in other words, his being free from hindrance or impediment in the way of doing, or conducting in any respect, as he wills.
47. It can be found that "liberty" generally means the prevention of restraints and providing such opportunities, the denial of which would result in frustration and ultimately disorder. Restraints on man's liberty are laid down by power used through absolute discretion, which when used in this manner brings an end to "liberty" and freedom is lost. At the same time "liberty" without restraints would mean liberty won by one and lost by another. So "liberty" means doing of anything one desires but subject to the desire of others.
48. As John E.E.D. in his monograph Action on "Essays on Freedom and Power" wrote that Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization.
49. A distinguished former Attorney General for India, M.C. Setalvad in his treatise "War and Civil Liberties" observed that the French Convention stipulates common happiness as the end of the society, whereas Bentham postulates the greatest happiness of the greatest number as the end of law. Article 19 of the Indian Constitution averts to freedom and it enumerates certain rights regarding individual freedom. These rights are vital and most important freedoms which lie at the very root of liberty.
50. He further observed that the concept of civil liberty is essentially rooted in the philosophy of individualism. According to this doctrine, the highest development of the individual and the enrichment of his personality are the true function and end of the state. It is only when the individual has reached the highest state of perfection and evolved what is best in him that society and the state can reach their goal of perfection. In brief, according to this doctrine, the state exists mainly, if not solely, for the purpose of affording the individual freedom and assistance for the attainment of his growth and perfection. The state exists for the benefit of the individual.
51. Mr. Setalvad in the same treatise further observed that it is also true that the individual cannot attain the highest in him unless he is in possession of certain essential liberties which leave him free as it were to breathe and expand. According to Justice Holmes, these liberties are the indispensable conditions of a free society. The justification of the existence of such a state can only be the advancement of the interests of the individuals who compose it and who are its members. Therefore, in a properly constituted democratic state, there cannot be a conflict between the interests of the citizens and those of the state. The harmony, if not the identity, of the interests of the state and the individual, is the fundamental basis of the modern Democratic National State. And, yet the existence of the state and all government and even all law must mean in a measure the curtailment of the liberty of the individual. But such a surrender and curtailment of his liberty is essential in the interests of the citizens of the State. The individuals composing the state must, in their own interests and in order that they may be assured the existence of conditions in which they can, with a reasonable amount of freedom, carry on their other activities, endow those in authority over them to make laws and regulations and adopt measures which impose certain restrictions on the activities of the individuals.
52. Harold J. Laski in his monumental work in "Liberty in the Modern State" observed that liberty always demands a limitation on political authority. Power as such when uncontrolled is always the natural enemy of freedom.
53. Roscoe Pound, an eminent and one of the greatest American Law Professors aptly observed in his book "The Development of Constitutional Guarantee of Liberty" that whatever, 'liberty' may mean today, the liberty is guaranteed by our bills of rights, "is a reservation to the individual of certain fundamental reasonable expectations involved in life in civilized society and a freedom from arbitrary and unreasonable exercise of the power and authority of those who are designated or chosen in a politically organized society to adjust that society to individuals."
54. Blackstone in "Commentaries on the Laws of England", Vol.I, p.134 aptly observed that "Personal liberty consists in the power of locomotion, of changing situation or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint unless by due process of law".
55. According to Dicey, a distinguished English author of the Constitutional Law in his treatise on Constitutional Law observed that, "Personal liberty, as understood in England, means in substance a person's right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification." [Dicey on Constitutional Law, 9th Edn., pp.207-08]. According to him, it is the negative right of not being subjected to any form of physical restraint or coercion that constitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory. In ordinary language personal liberty means liberty relating to or concerning the person or body of the individual, and personal liberty in this sense is the antithesis of physical restraint or coercion.
56. Eminent English Judge Lord Alfred Denning observed:
By personal freedom I mean freedom of every law abiding citizen to think what he will, to say what he will, and to go where he will on his lawful occasion without hindrance from any person.... It must be matched, of course, with social security by which I mean the peace and good order of the community in which we live.
57. Eminent former Judge of this Court, Justice H.R. Khanna in a speech as published in 2 IJIL, Vol.18 (1978), p.133 observed that "liberty postulates the creation of a climate wherein there is no suppression of the human spirits, wherein, there is no denial of the opportunity for the full growth of human personality, wherein head is held high and there is no servility of the human mind or enslavement of the human body".
Right to life and personal liberty under the Constitution
58. We deem it appropriate to deal with the concept of personal liberty under the Indian and other Constitutions.
59. The Fundamental Rights represent the basic values enriched by the people of this country. The aim behind having elementary right of the individual such as the Right to Life and Liberty is not fulfilled as desired by the framers of the Constitution. It is to preserve and protect certain basic human rights against interference by the state. The inclusion of a Chapter in Constitution is in accordance with the trends of modern democratic thought. The object is to ensure the inviolability of certain essential rights against political vicissitudes.
60. The framers of the Indian Constitution followed the American model in adopting and incorporating the Fundamental Rights for the people of India. American Constitution provides that no person shall be deprived of his life, liberty, or property without due process of law. The due process clause not only protects the property but also life and liberty, similarly Article 21 of the Indian Constitution asserts the importance of Article 21. The said Article reads as under:
no person shall be deprived for his life or personal liberty except according to procedure established by law
the right secured by Article 21 is available to every citizen or non-citizen, according to this article, two rights are secured.
1. Right to life
2 Right to personal liberty.
61. Life and personal liberty are the most prized possessions of an individual. The inner urge for freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not merely a norm or a policy of the State but an essential requirement of any civilized society.
62. This Court defined the term "personal liberty" immediately after the Constitution came in force in India in the case of A.K. Gopalan v. The State of Madras MANU/SC/0012/1950 : AIR 1950 SC 27. The expression 'personal liberty' has wider as well narrow meaning. In the wider sense it includes not only immunity from arrest and detention but also freedom of speech, association etc. In the narrow sense, it means immunity from arrest and detention. The juristic conception of 'personal liberty', when used the latter sense, is that it consists freedom of movement and locomotion.
63. Mukherjea, J. in the said judgment observed that 'Personal Liberty' means liberty relating to or concerning the person or body of the individual and it is, in this sense, antithesis of physical restraint or coercion. 'Personal Liberty' means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification. This negative right constitutes the essence of personal liberty. Patanjali Shastri, J. however, said that whatever may be the generally accepted connotation of the expression 'personal liberty', it was used in Article 21 in a sense which excludes the freedom dealt with in Article 19. Thus, the Court gave a narrow interpretation to 'personal liberty'. This Court excluded certain varieties of rights, as separately mentioned in Article 19, from the purview of 'personal liberty' guaranteed by Article 21.
64. In Kharak Singh v. State of U.P. and Ors. MANU/SC/0085/1962 : AIR 1963 SC 1295, Subba Rao, J. defined 'personal liberty, as a right of an individual to be free from restrictions or encroachment on his person whether these are directly imposed or indirectly brought about by calculated measure. The court held that 'personal liberty' in Article 21 includes all varieties of freedoms except those included in Article 19.
65. In Maneka Gandhi v. Union of India and Anr. MANU/SC/0133/1978 : (1978) 1 SCC 248, this Court expanded the scope of the expression 'personal liberty' as used in Article 21 of the Constitution of India. The court rejected the argument that the expression 'personal liberty' must be so interpreted as to avoid overlapping between Article 21 and Article 19(1). It was observed: "The expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19." So, the phrase 'personal liberty' is very wide and includes all possible rights which go to constitute personal liberty, including those which are mentioned in Article 19.
66. Right to life is one of the basic human right and not even the State has the authority to violate that right. [State of A.P. v. Challa Ramakrishna Reddy and Ors. MANU/SC/0368/2000 : (2000) 5 SCC 712].
67. Article 21 is a declaration of deep faith and belief in human rights. In this pattern of guarantee woven in Chapter III of this Constitution, personal liberty of man is at root of Article 21 and each expression used in this Article enhances human dignity and values. It lays foundation for a society where rule of law has primary and not arbitrary or capricious exercise of power. [Kartar Singh v. State of Punjab and Ors. (1994) 3 SCC 569.
68. While examining the ambit, scope and content of the expression "personal liberty" in the said case, it was held that the term is used in this Article as a compendious term to include within itself all varieties of rights which goes to make up the "personal liberties" or man other than those dealt within several clauses of Article 19(1). While Article 19(1) deals with particular species or attributes of that freedom, "personal liberty" in Article 21 takes on and comprises the residue.
69. The early approach to Article 21 which guarantees right to life and personal liberty was circumscribed by literal interpretation in A.K. Gopalan (supra). But in course of time, the scope of this application of the Article against arbitrary encroachment by the executives has been expanded by liberal interpretation of the components of the Article in tune with the relevant international understanding. Thus protection against arbitrary privation of "life" no longer means mere protection of death, or physical injury, but also an invasion of the right to "live" with human dignity and would include all these aspects of life which would go to make a man's life meaningful and worth living, such as his tradition, culture and heritage. [Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors. MANU/SC/0517/1981 : (1981) 1 SCC 608]
70. Article 21 has received very liberal interpretation by this Court. It was held: "The right to live with human dignity and same does not connote continued drudging. It takes within its fold some process of civilization which makes life worth living and expanded concept of life would mean the tradition, culture, and heritage of the person concerned." [P. Rathinam/Nagbhusan Patnaik v. Union of India and Anr. MANU/SC/0433/1994 : (1994) 3 SCC 394.]
71. The object of Article 21 is to prevent encroachment upon personal liberty in any manner. Article 21 is repository of all human rights essentially for a person or a citizen. A fruitful and meaningful life presupposes full of dignity, honour, health and welfare. In the modern "Welfare Philosophy", it is for the State to ensure these essentials of life to all its citizens, and if possible to non-citizens. While invoking the provisions of Article 21, and by referring to the oft-quoted statement of Joseph Addision, "Better to die ten thousand deaths than wound my honour", the Apex court in Khedat Mazdoor Chetana Sangath v. State of M.P. and Ors. MANU/SC/0007/1995 : (1994) 6 SCC 260 posed to itself a question "If dignity or honour vanishes what remains of life"? This is the significance of the Right to Life and Personal Liberty guaranteed under the Constitution of India in its third part.
72. This Court in Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr. MANU/SC/0439/1986 : (1986) 3 SCC 156 observed that the law must respond and be responsive to the felt and discernible compulsions of circumstances that would be equitable, fair and justice, and unless there is anything to the contrary in the statute, Court must take cognizance of that fact and act accordingly.
73. This Court remarked that an undertrial prisoner should not be put in fetters while he is being taken from prison to Court or back to prison from Court. Steps other than putting him in fetters will have to be taken to prevent his escape.
74. In Prem Shankar Shukla v. Delhi Administration MANU/SC/0084/1980 : (1980) 3 SCC 526, this Court has made following observations:
...The Punjab Police Manual, in so far as it puts the ordinary Indian beneath the better class breed (para 26.21A and 26.22 of Chapter XXVI) is untenable and arbitrary. Indian humans shall not be dichotomised and the common run discriminated against regarding handcuffs. The provisions in para 26.22 that every under-trial who is accused of a non-bailable offence punishable with more than 3 years prison term shall be routinely handcuffed is violative of Articles 14, 19 and 21. The nature of the accusation is not the criterion. The clear and present danger of escape breaking out of the police control is the determinant. And for this there must be clear material, not glib assumption, record of reasons and judicial oversight and summary hearing and direction by the court where the victim is produced. ... Handcuffs are not summary punishment vicariously imposed at police level, at once obnoxious and irreversible. Armed escorts, worth the salt, can overpower any unarmed under-trial and extra guards can make up exceptional needs. In very special situations, the application of irons is not ruled out. The same reasoning applies to (e) and (f). Why torture the prisoner because others will demonstrate or attempt his rescue? The plain law of under-trial custody is thus contrary to the unedifying escort practice. (Para 31)
Even in cases where, in extreme circumstances, handcuffs have to be put on the prisoner, the escorting authority must record contemporaneously the reason for doing so. Otherwise, under Article 21 the procedure will be unfair and bad in law. The minions of the police establishment must make good their security recipes by getting judicial approval. And, once the court directs that handcuffs shall be off, no escorting authority can overrule judicial direction. This is implicit in Article 21 which insists upon fairness, reasonableness and justice in the very procedure which authorities stringent deprivation of life and liberty. (Para 30)
It is implicit in Articles 14 and 19 that when there is no compulsive need to fetter a person's limbs, it is sadistic, capricious, despotic and demoralizing to humble a man by manacling him. Such arbitrary conduct surely slaps Article 14 on the face. The minimal freedom of movement which even a detainee is entitled to under Article 19 cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstances so hostile to safekeeping. (Para 23)
Whether handcuffs or other restraint should be imposed on a prisoner is a matter for the decision of the authority responsible for his custody. But there is room for imposing supervisory regime over the exercise of that power. One sector of supervisory jurisdiction could appropriately lie with the court trying the accused, and it would be desirable for the custodial authority to inform that court of the circumstances in which, and the justification for, imposing a restraint on the body of the accused. It should be for the court concerned to work out the modalities of the procedure requisite for the purpose of enforcing such control.
75. After dealing with the concept of life and liberty under the Indian Constitution, we would like to have the brief survey of other countries to ascertain how life and liberty has been protected in other countries.
UNITED KINGDOM
76. Life and personal liberty has been given prime importance in the United Kingdom. It was in 1215 that the people of England revolted against King John and enforced their rights, first time the King had acknowledged that there were certain rights of the subject could be called Magna Carta 1215. In 1628 the petition of rights was presented to King Charles-I which was the 1st step in the transfer of Sovereignty from the King to Parliament. It was passed as the Bill of Rights 1689.
77. In the Magna Carta, it is stated "no free man shall be taken, or imprisoned or disseised or outlawed or banished or any ways destroyed, nor will the King pass upon him or commit him to prison, unless by the judgment of his peers or the law of the land".
78. Right to life is the most fundamental of all human rights and any decision affecting human right or which may put an individual's life at risk must call for the most anxious scrutiny. See: Bugdaycay v. Secretary of State for the Home Department (1987) 1 All ER 940. The sanctity of human life is probably the most fundamental of the human social values. It is recognized in all civilized societies and their legal system and by the internationally recognized statements of human rights. See: R on the application of Pretty v. Director of Public Prosecutions (2002) 1 All ER 1.
U.S.A.
79. The importance of personal liberty is reflected in the Fifth Amendment to the Constitution of U.S.A. (1791) which declares as under:
No person shall be .... deprived of his life, liberty or property, without due process of law." (The 'due process' clause was adopted in Section 1(a) of the Canadian Bill of Rights Act, 1960. In the Canada Act, 1982, this expression has been substituted by 'the principles of fundamental justice' [Section 7].
80. The Fourteenth Amendment imposes similar limitation on the State authorities. These two provisions are conveniently referred to as the 'due process clauses'. Under the above clauses the American Judiciary claims to declare a law as bad, if it is not in accordance with 'due process', even though the legislation may be within the competence of the Legislature concerned. Due process is conveniently understood means procedural regularity and fairness. (Constitutional Interpretation by Craig R. Ducat, 8 th Edn. 2002 p.475.).
WEST GERMANY
81. Article 2(2) of the West German Constitution (1948) declares:
Everyone shall have the right to life and physical inviolability. The freedom of the individual shall be inviolable. These rights may be interfered with only on the basis of the legal order.
Though the freedom of life and liberty guaranteed by the above Article may be restricted, such restriction will be valid only if it is in conformity with the 'legal order' (or 'pursuant to a law, according to official translation). Being a basic right, the freedom guaranteed by Article 2(2) is binding on the legislative, administrative and judicial organs of the State [Article 1(3)]. This gives the individual the rights to challenge the validity of a law or an executive act violative the freedom of the person by a constitutional complaint to the Federal Constitutional Court, under Article 93. Procedural guarantee is given by Articles 103(1) and 104. Article 104(1)-2(2) provides:
(1) The freedom of the individual may be restricted only on the basis of a formal law and only with due regard to the forms prescribed therein....
(2) Only the Judge shall decide on the admissibility and continued deprivation of liberty.
82. These provisions correspond to Article 21 of our Constitution and the court is empowered to set a man to liberty if it appears that he has been imprisoned without the authority of a formal law or in contravention of the procedure prescribed there.
JAPAN
83. Article XXXI of the Japanese Constitution of 1946 says:
No person shall be deprived of life or liberty nor shall any other criminal penalty be imposed, except according to procedure established by law.
This article is similar to Article 21 of our Constitution save that it includes other criminal penalties, such as fine or forfeiture within its ambit.
CANADA
84. Section 1(1) of the Canadian Bill of Rights Act, 1960, adopted the 'Due Process' Clause from the American Constitution. But the difference in the Canadian set-up was due to the fact that this Act was not a constitutional instrument to impose a direct limitation on the Legislature but only a statute for interpretation of Canadian status, which, again, could be excluded from the purview of the Act of 1960, in particular cases, by an express declaration made by the Canadian Parliament itself (Section 2). The result was obvious: The Canadian Supreme Court in R. v. Curr (1972) SCR 889 held that the Canadian Court would not import 'substantive reasonableness' into Section 1(a), because of the unsalutary experience of substantive due process in the U.S.A.; and that as to 'procedural reasonableness', Section 1(a) of the Bill of Rights Act only referred to 'the legal processes recognized by Parliament and the Courts in Canada'. The result was that in Canada, the 'due process clause' lost its utility as an instrument of judicial review of legislation and it came to mean practically the same thing as whatever the Legislature prescribes, - much the same as 'procedure established by law' in Article 21 of the Constitution of India, as interpreted in A.K. Gopalan (supra).
BANGADESH
85. Article 32 of the Constitution of Bangladesh 1972 [3 SCW 385] reads as under:
No person shall be deprived of life or personal liberty save in accordance with law.
This provision is similar to Article 21 of the Indian Constitution. Consequently, unless controlled by some other provision, it should be interpreted as in India.
PAKISTAN
86. Article 9 Right to life and Liberty. - "Security of Person: No person shall be deprived of life and liberty save in accordance with law."
NEPAL
87. In the 1962 - Constitution of Nepal, there is Article 11(1) which deals with right to life and liberty which is identical with Article 21 of the Indian Constitution.
INTERNATIONAL CHARTERS
88. Universal Declaration, 1948. - Article 3 of the Universal Declaration says:
Everyone has the right to life, liberty and security of person.
Article 9 provides:
No one shall be subjected to arbitrary arrest, detention or exile.
Cl.10 says:
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. [As to its legal effect, see M. v. Organisation Belge ILR (1972) 446
89. Covenant on Civil and Political Rights - Article 9(1) of the U.N. 1966, 1966 says:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
90. European Convention on Human Rights, 1950. - This Convention contains a most elaborate and detailed codification of the rights and safeguards for the protection of life and personal liberty against arbitrary invasion.
91. In every civilized democratic country, liberty is considered to be the most precious human right of every person. The Law Commission of India in its 177th Report under the heading 'Introduction to the doctrine of "arrest" has described as follows:
Liberty is the most precious of all the human rights". It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man. The universal declaration of human rights adopted by the general assembly on United Nations on December 10, 1948 contains several articles designed to protect and promote the liberty of individual. So does the international covenant on civil and political rights, 1996. Above all, Article 21 of the Constitution of India proclaims that no one shall be deprived of his right to personal liberty except in accordance with the procedure prescribed by law. Even Article 20(1) & (2) and Article 22 are born out of a concern for human liberty. As it is often said, "one realizes the value of liberty only when he is deprived of it." Liberty, along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by the Constitution. Of equal importance is the maintenance of peace, law and order in the society. Unless, there is peace, no real progress is possible. Societal peace lends stability and security to the polity. It provides the necessary conditions for growth, whether it is in the economic sphere or in the scientific and technological spheres.
92. Just as the Liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important.
93. It is a matter of common knowledge that a large number of undertrials are languishing in jail for a long time even for allegedly committing very minor offences. This is because Section 438 Code of Criminal Procedure has not been allowed its full play. The Constitution Bench in Sibbia's case (supra) clearly mentioned that Section 438 Code of Criminal Procedure is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other provisions for grant of bail were Sections 437 and 439 Code of Criminal Procedure It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some courts of smaller strength have erroneously observed that Section 438 Code of Criminal Procedure should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia's case (supra). According to the report of the National Police Commission, the power of arrest is grossly abused and clearly violates the personal liberty of the people, as enshrined under Article 21 of the Constitution, then the courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The courts considering the bail application should try to maintain fine balance between the societal interest vis-'-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused that the accused is presumed to be innocent till he is found guilty by the competent court.
94. The complaint filed against the accused needs to be thoroughly examined including the aspect whether the complainant has filed false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.
95. The gravity of charge and exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
96. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided.
97. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.
Whether the powers under Section 438 Code of Criminal Procedure are subject to limitation of Section 437 Code of Criminal Procedure ?
98. The question which arises for consideration is whether the powers under Section 438 Code of Criminal Procedure are unguided or uncanalised or are subject to all the limitations of Section 437 Code of Criminal Procedure ? The Constitution Bench in Sibbia's case (supra) has clearly observed that there is no justification for reading into Section 438 Code of Criminal Procedure and the limitations mentioned in Section 437 Code of Criminal Procedure The Court further observed that the plentitude of the section must be given its full play. The Constitution Bench has also observed that the High Court is not right in observing that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 Code of Criminal Procedure to a dead letter. The Court observed that "We do not see why the provisions of Section 438 Code of Criminal Procedure should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable."
99. As aptly observed in Sibbia's case (supra) that a wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.
100. The Constitution Bench in the same judgment also observed that a person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall enlarged on bail.
101. The proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public prosecutor. After hearing the public prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The public prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case.
102. The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply before a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia's case (supra).
103. It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the public prosecutor or the complainant on finding new material or circumstances at any point of time.
104. The intention of the legislature is quite clear that the power of grant or refusal of bail is entirely discretionary. The Constitution Bench in Sibbia's case (supra) has clearly stated that grant and refusal is discretionary and it should depend on the facts and circumstances of each case. The Constitution Bench in the said case has aptly observed that we must respect the wisdom of the Legislature entrusting this power to the superior courts namely, the High Court and the Court of Session. The Constitution Bench observed as under:
We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognized over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the grounds that, after all "the legislature in, its wisdom" has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom. If they err, they are liable to be corrected.
GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY TO THE LEGISLATIVE INTENTION AND LAW DECLARED BY THE CONSTITUTION BENCH:
105. The court which grants the bail has the right to cancel the bail according to the provisions of the General Clauses Act but ordinarily after hearing the public prosecutor when the bail order is confirmed then the benefit of the grant of the bail should continue till the end of the trial of that case.
106. The judgment in Salauddin Abdulsamad Shaikh (supra) is contrary to legislative intent and the spirit of the very provisions of the anticipatory bail itself and has resulted in an artificial and unreasonable restriction on the scope of enactment contrary to the legislative intention.
107. The restriction on the provision of anticipatory bail under Section 438 Code of Criminal Procedure limits the personal liberty of the accused granted under Article 21 of the constitution. The added observation is nowhere found in the enactment and bringing in restrictions which are not found in the enactment is again an unreasonable restriction. It would not stand the test of fairness and reasonableness which is implicit in Article 21 of the Constitution after the decision in Maneka Gandhi's case (supra) in which the court observed that in order to meet the challenge of Article 21 of the Constitution the procedure established by law for depriving a person of his liberty must be fair, just and reasonable.
108. Section 438 Code of Criminal Procedure does not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted. The order granting anticipatory bail is a direction specifically to release the accused on bail in the event of his arrest. Once such a direction of anticipatory bail is executed by the accused and he is released on bail, the concerned court would be fully justified in imposing conditions including direction of joining investigation.
109. The court does not use the expression 'anticipatory bail' but it provides for issuance of direction for the release on bail by the High Court or the Court of Sessions in the event of arrest. According to the aforesaid judgment of Salauddin's case, the accused has to surrender before the trial court and only thereafter he/she can make prayer for grant of bail by the trial court. The trial court would release the accused only after he has surrendered.
110. In pursuance to the order of the Court of Sessions or the High Court, once the accused is releaed on bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.
111. The court must bear in mind that at times the applicant would approach the court for grant of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non-bailable offence. In fact, the investigating or concerned agency may not otherwise arrest that applicant who has applied for anticipatory bail but just because he makes an application before the court and gets the relief from the court for a limited period and thereafter he has to surrender before the trial court and only thereafter his bail application can be considered and life of anticipatory bail comes to an end. This may lead to disastrous and unfortunate consequences. The applicant who may not have otherwise lost his liberty loses it because he chose to file application of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non-bailable offence. No arrest should be made because it is lawful for the police officer to do so. The existence of power to arrest is one thing and the justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. This finding of the said judgment (supra) is contrary to the legislative intention and law which has been declared by a Constitution Bench of this Court in Sibbia's case (supra).
112. The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail. This is contrary to the basic intention and spirit of Section 438 Code of Criminal Procedure It is also contrary to Article 21 of the Constitution. The test of fairness and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty.
113. It is a settled legal position crystallized by the Constitution Bench of this Court in Sibbia's case (supra) that the courts should not impose restrictions on the ambit and scope of Section 438 Code of Criminal Procedure which are not envisaged by the Legislature. The court cannot rewrite the provision of the statute in the garb of interpreting it.
114. It is unreasonable to lay down strict, inflexible and rigid rules for exercise of such discretion by limiting the period of which an order under this section could be granted. We deem it appropriate to reproduce some observations of the judgment of the Constitution Bench of this Court in the Sibbia's case (supra).
The validity of that section must accordingly be examined by the test of fairness and reasonableness which is implicit in Article 21. If the legislature itself were to impose an unreasonable restriction on the grant of anticipatory bail, such a restriction could have been struck down as being violative of Article 21. Therefore, while determining the scope of Section 438, the court should not impose any unfair or unreasonable limitation on the individual's right to obtain an order of anticipatory bail. Imposition of an unfair or unreasonable limitation, according to the learned Counsel, would be violative of Article 21, irrespective of whether it is imposed by legislation or by judicial decision.
xxx xxx xxx
Clause (1) of Section 438 is couched in terms, broad and unqualified. By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep grained in our criminal jurisprudence as the presumption of innocence."
xxx xxx xxx
I desire in the first instance to point out that the discretion given by the section is very wide.... Now it seems to me that when the Act is so expressed to provide a wide discretion, ... it is not advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of view from which judges would regard an application for relief. But I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded. If it were otherwise, the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the court where the conditions are not based upon statutory enactment at all. It is not safe, I think, to say that the court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make the court wish it had kept a free hand.
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The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the courts by law.
115. The Apex Court in Salauddin's case (supra) held that anticipatory bail should be granted only for a limited period and on the expiry of that duration it should be left to the regular court to deal with the matter is not the correct view. The reasons quoted in the said judgment is that anticipatory bail is granted at a stage when an investigation is incomplete and the court is not informed about the nature of evidence against the alleged offender.
116. The said reason would not be right as the restriction is not seen in the enactment and bail orders by the High Court and Sessions Court are granted under Sections 437 and 439 also at such stages and they are granted till the trial.
117. The view expressed by this Court in all the above referred judgments have to be reviewed and once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused.
SCOPE AND AMBIT OF ANTICIPATORY BAIL:
118. A good deal of misunderstanding with regard to the ambit and scope of Section 438 Code of Criminal Procedure could have been avoided in case the Constitution Bench decision of this Court in Sibbia's case (supra) was correctly understood, appreciated and applied.
119. This Court in the Sibbia's case (supra) laid down the following principles with regard to anticipatory bail:
a) Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India.
b) Filing of FIR is not a condition precedent to exercise of power under Section 438.
c) Order under Section 438 would not affect the right of police to conduct investigation.
d) Conditions mentioned in Section 437 cannot be read into Section 438.
e) Although the power to release on anticipatory bail can be described as of an "extraordinary" character this would "not justify the conclusion that the power must be exercised in exceptional cases only." Powers are discretionary to be exercised in light of the circumstances of each case.
f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re-examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.
120. The Law Commission in July 2002 has severely criticized the police of our country for the arbitrary use of power of arrest which, the Commission said, is the result of the vast discretionary powers conferred upon them by this Code. The Commission expressed concern that there is no internal mechanism within the police department to prevent misuse of law in this manner and the stark reality that complaint lodged in this regard does not bring any result. The Commission intends to suggest amendments in the Criminal Procedure Code and has invited suggestions from various quarters. Reference is made in this Article to the 41st Report of the Law Commission wherein the Commission saw 'no justification' to require a person to submit to custody, remain in prison for some days and then apply for bail even when there are reasonable grounds for holding that the person accused of an offence is not likely to abscond or otherwise misuse his liberty. Discretionary power to order anticipatory bail is required to be exercised keeping in mind these sentiments and spirit of the judgments of this Court in Sibbia's case (supra) and Joginder Kumar v. State of U.P. and Ors. MANU/SC/0311/1994 : (1994) 4 SCC 260.
Relevant consideration for exercise of the power
121. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under Section 438 Code of Criminal Procedure by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.
122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
123. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case.
124. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.
125. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the concerned judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available.
126. Irrational and Indiscriminate arrest are gross violation of human rights. In Joginder Kumar's case (supra), a three Judge Bench of this Court has referred to the 3rd report of the National Police Commission, in which it is mentioned that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails.
127. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.
128 In case, the State consider the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the accused in a routine manner. These suggestions are only illustrative and not exhaustive.
1) Direct the accused to join investigation and only when the accused does not cooperate with the investigating agency, then only the accused be arrested.
2) Seize either the passport or such other related documents, such as, the title deeds of properties or the Fixed Deposit Receipts/Share Certificates of the accused.
3) Direct the accused to execute bonds; 4) The accused may be directed to furnish sureties of number of persons which according to the prosecution are necessary in view of the facts of the particular case.
5) The accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course of justice can be avoided.
6) Bank accounts be frozen for small duration during investigation.
129. In case the arrest is imperative, according to the facts of the case, in that event, the arresting officer must clearly record the reasons for the arrest of the accused before the arrest in the case diary, but in exceptional cases where it becomes imperative to arrest the accused immediately, the reasons be recorded in the case diary immediately after the arrest is made without loss of any time so that the court has an opportunity to properly consider the case for grant or refusal of bail in the light of reasons recorded by the arresting officer.
130. Exercise of jurisdiction under Section 438 of Code of Criminal Procedure is extremely important judicial function of a judge and must be entrusted to judicial officers with some experience and good track record. Both individual and society have vital interest in orders passed by the courts in anticipatory bail applications.
131. It is imperative for the High Courts through its judicial academies to periodically organize workshops, symposiums, seminars and lectures by the experts to sensitize judicial officers, police officers and investigating officers so that they can properly comprehend the importance of personal liberty vis-'-vis social interests. They must learn to maintain fine balance between the personal liberty and the social interests.
132. The performance of the judicial officers must be periodically evaluated on the basis of the cases decided by them. In case, they have not been able to maintain balance between personal liberty and societal interests, the lacunae must be pointed out to them and they may be asked to take corrective measures in future. Ultimately, the entire discretion of grant or refusal of bail has to be left to the judicial officers and all concerned must ensure that grant or refusal of bail is considered basically on the facts and circumstances of each case.
133. In our considered view, the Constitution Bench in Sibbia's case (supra) has comprehensively dealt with almost all aspects of the concept of anticipatory bail under Section 438 Code of Criminal Procedure A number of judgments have been referred to by the learned Counsel for the parties consisting of Benches of smaller strength where the courts have observed that the anticipatory bail should be of limited duration only and ordinarily on expiry of that duration or standard duration, the court granting the anticipatory bail should leave it to the regular court to deal with the matter. This view is clearly contrary to the view taken by the Constitution Bench in Sibbia's case (supra). In the preceding paragraphs, it is clearly spelt out that no limitation has been envisaged by the Legislature under Section 438 Code of Criminal Procedure The Constitution Bench has aptly observed that "we see no valid reason for rewriting Section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court or the Court of Session but, for the purpose of limiting it".
134. In view of the clear declaration of law laid down by the Constitution Bench in Sibbia's case (supra), it would not be proper to limit the life of anticipatory bail. When the court observed that the anticipatory bail is for limited duration and thereafter the accused should apply to the regular court for bail, that means the life of Section 438 Code of Criminal Procedure would come to an end after that limited duration. This limitation has not been envisaged by the legislature. The Constitution Bench in Sibbia's case (supra) clearly observed that it is not necessary to re-write Section 438 Code of Criminal Procedure Therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under Section 438 Code of Criminal Procedure granting bail cannot be curtailed.
135. The ratio of the judgment of the Constitution Bench in Sibbia's case (supra) perhaps was not brought to the notice of their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra, K.L. Verma v. State and Anr., Adri Dharan Das v. State of West Bengal and Sunita Devi v. State of Bihar and Anr. (supra).
136. In Naresh Kumar Yadav v. Ravindra Kumar MANU/SC/8067/2007 : (2008) 1 SCC 632, a two-Judge Bench of this Court observed "the power exercisable under Section 438 Code of Criminal Procedure is somewhat extraordinary in character and it should be exercised only in exceptional cases. This approach is contrary to the legislative intention and the Constitution Bench's decision in Sibbia's case (supra).
137. We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 Code of Criminal Procedure should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject to the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.
138. The judgments and orders mentioned in paras 135 and 136 are clearly contrary to the law declared by the Constitution Bench of this Court in Sibbia's case (supra). These judgments and orders are also contrary to the legislative intention. The Court would not be justified in re-writing Section 438 Code of Criminal Procedure
139. Now we deem it imperative to examine the issue of per incuriam raised by the learned Counsel for the parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House of Lords observed that 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this Court while interpreting Article 141of the Constitution which embodies the doctrine of precedents as a matter of law.
...In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under:
A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd. 1944 KB 718 : (1944) 2 All ER 293 .
In Huddersfield Police Authority v. Watson 1947 KB 842: (1947) 2 All ER 193.; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force.
140. Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 observed that where a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.
141. This Court in Government of A.P. and Anr. v. B. Satyanarayana Rao (dead) by LRs. and Ors. MANU/SC/0275/2000 : (2000) 4 SCC 262 observed as under:
The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.
142. In a Constitution Bench judgment of this Court in Union of India v. Raghubir Singh MANU/SC/0619/1989 : (1989) 2 SCC 754, Chief Justice Pathak observed as under:
The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court.
143. In Thota Sesharathamma and Anr. v. Thota Manikyamma (Dead) by LRs. and Ors. MANU/SC/0621/1991 : (1991) 4 SCC 312 a two Judge Bench of this Court held that the three Judge Bench decision in the case of Mst. Karmi v. Amru MANU/SC/0480/1971 : (1972) 4 SCC 86 was per incuriam and observed as under:
... It is a short judgment without adverting to any provisions of Section 14(1) or 14(2) of the Act. The judgment neither makes any mention of any argument raised in this regard nor there is any mention of the earlier decision in Badri Pershad v. Smt. Kanso Devi. The decision in Mst. Karmi cannot be considered as an authority on the ambit and scope of Section 14(1) and (2) of the Act.
144. In R. Thiruvirkolam v. Presiding Officer and Anr. MANU/SC/0159/1997 : (1997) 1 SCC 9 a two Judge Bench of this Court observed that the question is whether it was bound to accept the decision rendered in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha MANU/SC/0369/1979 : (1980) 2 SCC 593, which was not in conformity with the decision of a Constitution Bench in P.H. Kalyani v. Air France MANU/SC/0137/1963 : (1964) 2 SCR 104. J.S. Verma, J. speaking for the court observed as under:
With great respect, we must say that the above-quoted observations in Gujarat Steel at P. 215 are not in line with the decision in Kalyani which was binding or with D.C. Roy to which the learned Judge, Krishna Iyer, J. was a party. It also does not match with the underlying juristic principle discussed in Wade. For the reasons, we are bound to follow the Constitution Bench decision in Kalyani, which is the binding authority on the point.
145. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and Ors. MANU/SC/0308/2001 : (2001) 4 SCC 448 a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness.
146. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra MANU/SC/1069/2004 : (2005) 2 SCC 673 has observed that the law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
147. A three-Judge Bench of this Court in Official Liquidator v. Dayanand and Ors. MANU/SC/4591/2008 : (2008) 10 SCC 1 again reiterated the clear position of law that by virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka and Ors. v. Umadevi (3) and Ors. MANU/SC/1918/2006 : (2006) 4 SCC 1 is binding on all courts including this Court till the same is overruled by a larger Bench. The ratio of the Constitution Bench has to be followed by Benches of lesser strength. In para 90, the court observed as under:
We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.
148. In Subhash Chandra and Anr. v. Delhi Subordinate Services Selection Board and Ors. MANU/SC/1460/2009 : (2009) 15 SCC 458, this Court again reiterated the settled legal position that Benches of lesser strength are bound by the judgments of the Constitution Bench and any Bench of smaller strength taking contrary view is per incuriam. The court in para 110 observed as under:"Should we consider S. Pushpa v. Sivachanmugavelu MANU/SC/0091/2005 : (2005) 3 SCC 1 to be an obiter following the said decision is the question which arises herein. We think we should. The decisions referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely, Marri Chandra Shekhar Rao v. Seth G.S. Medical College (1990) 3 SCC 139 and E.V. Chinnaiah v. State of A.P. MANU/SC/0960/2004 : (2005) 1 SCC 394. Marri Chandra Shekhar Rao (supra) had been followed by this Court in a large number of decisions including the three-Judge Bench decisions. S. Pushpa (supra) therefore, could not have ignored either Marri Chandra Shekhar Rao (supra) or other decisions following the same only on the basis of an administrative circular issued or otherwise and more so when the constitutional scheme as contained in Clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same bracket. Following Official Liquidator v. Dayanand and Ors. MANU/SC/4591/2008 : (2008) 10 SCC 1 therefore, we are of the opinion that the dicta in S. Pushpa (supra) is an obiter and does not lay down any binding ratio."
149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three judges of this Court. These judgments have clearly ignored a Constitution Bench judgment of this Court in Sibbia's case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of Code of Criminal Procedure Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam.
150. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the correctness of the judgments by two or three judges, then the proper course would be to request Hon'ble the Chief Justice to refer the matter to a larger Bench of appropriate strength.
151. In the instant case there is a direct judgment of the Constitution Bench of this Court in Sibbia's case (supra) dealing with exactly the same issue regarding ambit, scope and object of the concept of anticipatory bail enumerated under Section 438 Code of Criminal Procedure The controversy is no longer res integra. We are clearly bound to follow the said judgment of the Constitution Bench. The judicial discipline obliges us to follow the said judgment in letter and spirit.
152. In our considered view the impugned judgment and order of the High Court declining anticipatory bail to the Appellant cannot be sustained and is consequently set aside.
153. We direct the Appellant to join the investigation and fully cooperate with the investigating agency. In the event of arrest the Appellant shall be released on bail on his furnishing a personal bond in the sum of Rs. 50,000/- with two sureties in the like amount to the satisfaction of the arresting officer.
154. Consequently, this appeal is allowed and disposed of in terms of the aforementioned observations.

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