THE HON'BLE SRI JUSTICE [ENTITY] CRIMINAL PETITION NOs. 8940 of 2012, 8941 of 2012, 8942 of 2012 & 8943 of 2012 13.12.2012 [ENTITY] & another Petitoners [ENTITY] through Public Prosecutor, High Court of A.P., Hyderabad & another Respondents Counsel for the Petitioners : Sri [ENTITY] Counsel for the Respondents: The Public Prosecutor Sri [ENTITY], Sr. counsel Sri [ENTITY] <Gist : >Head Note: ?Cases referred: 1)(2010) 1 SCC 679 2) 2004 (2) ALD (Crl.) 651 (SC) 3) AIR 1959 AP 639 4) 2002 (1) ALT (Crl.) 76 5) (1998) 3 Supreme Court Cases 209 6) (2005) 4 Supreme Court Cases 303 7) (1998) 9 Supreme Court Cases 348 8) (2009) 2 Supreme Court Cases 281 9) (2006) 9 Supreme Court Cases 540 10) (2008) 3 Supreme Court Cases 222 11) 1993 Supp (4) SCC 12) (1977) 4 Supreme Court Cases 551 13) (2001) 2 Supreme Court Cases 221 14) (2008) 14 Supreme Court Cases 403 15) (2012) 5 SCC 690 16) (2002) 2 Supreme Court Cases [SECTION] 17) 1986 (2) ALT 562 18) (2005) 3 Supreme Court Cases 284 19) (2008) 8 Supreme Court Cases 781 COMMON ORDER:
These Criminal Petitions are preferred challenging the Common Order dated 26.11.2012 in [CASE NUMBER], on the file of the IV Additional Metropolitan Sessions Judge, Hyderabad whereunder and whereby two petitions filed by the State and two petitions filed by the defacto complainant for cancellation of bail granted to the petitioners herein, in [CASE NUMBER] of Central Crime Station (CCS), Detective Department(DD), Hyderabad are allowed.
2. [CASE NUMBER] of CCS, DD, Hyderabad is registered for the offences under [SECTION], [SECTION] and [SECTION] [ACT] alleging that M/s. [ENTITY] represented by the petitioners/accused entered into a Memorandum of Understanding with second respondent/[ENTITY] in the year 2006 and received eleven crores of rupees for development of certain property and gave certain properties to DLF as security by way of mortgage, and it was found that the property given as security was not owned and possessed by the accused and yet, with a view to cheat, they showed such property as security and obtained money from DLF and used it for purposes other than that was agreed in between the parties.
3. [CASE NUMBER] of CCS, DD, Hyderabad is registered for the offences under [SECTION], [SECTION] and [SECTION] [ACT] alleging that M/s. [ENTITY] and certain other companies, all belonged to the petitioners/accused, induced [ENTITY] with various projects and induced it to part with hundreds of crores of rupees, and the accused spent the said money in violation of the Memoranda of Understanding between the parties, and the accused diverted the funds to their personal accounts, and that it was a pre-determined fraud.
4. Learned senior counsel Sri [ENTITY], appearing for the petitioners in all the Criminal Petitions, contended that in view of the protection granted by the Hon'ble Supreme Court of India for a period of three weeks, the petitioners were present in the trial court and therefore they were said to be in the deemed custody of the court; that imposing conditions by the Hon'ble Supreme Court giving liberty to police to interrogate the petitioners and that they should not leave the country would clearly go to show that the petitioners can neither be arrested by the police or remanded by the Court till completion of three weeks; that the Magistrate acted as per the orders of the Hon'ble Supreme Court protecting the petitioners against arrest, and the petitioners could not have been taken into custody as it violates the order of the Hon'ble Supreme Court; that judgment of the Hon'ble Supreme Court of India is binding on all courts under [SECTION] of the [ACT]; that under [SECTION] of the [ACT], the Hon'ble Supreme Court got plenary powers to pass any order to do substantial justice to the parties, and therefore exercising the powers under [SECTION] of the [ACT], the present order has been passed by the Hon'ble Supreme Court of India, and considering that aspect, the learned Magistrate rightly granted bail, and if the Magistrate refused to take the application for bail, he would be liable for contempt of court, but without assigning any reasons, the impugned common order has been passed by the learned Sessions Judge canceling the bail; that canceling the bail by the learned Sessions Judge is nothing but abuse of process of court and required to be set aside by this Court so as to secure ends of justice.
5. On the other hand, learned Public Prosecutor contended that the petitioners have not surrendered before the trial court as directed by the Hon'ble Supreme Court, and that a categorical finding has been recorded by the trial court that they were not present physically in the court and so, the question of invocation of [SECTION] [ACT] does not arise; that the Hon'ble Supreme Court of India gave protection not to arrest the petitioners by police, but not with regard to powers of the Magistrate to remand the person of the accused when he appears before the Court in a cognizable offence to remand him to judicial custody, which is inbuilt under [SECTION] [ACT] during the course of investigation and also under [SECTION] [ACT], during the course of inquiry or trial; that as the petitioners have neither surrendered nor appeared before the trial court, the question of entertaining bail application does not arise, and considering these aspects, the learned Sessions Judge rightly cancelled the bail, and there are no grounds to interfere with the impugned common order.
6. Sri [ENTITY], learned senior counsel appearing for the second respondent in two Criminal Petitions contended that the petitioners cannot circumvent the statutory provisions so as to get benefit under the guise of the orders of the Hon'ble Supreme Court; that when anticipatory bail applications filed by the petitioners have been dismissed by the Sessions Judge as well as by this Court, the channel of grant of bail under [SECTION] [ACT] has been closed, and that the remedy available to the petitioners is only under [SECTION] [ACT]; that under [SECTION] [ACT], unless the petitioners surrender or appear before the court, the question of exercising jurisdiction under [SECTION] [ACT] does not arise, and hence, he prays to dismiss the Criminal Petitions.
7. Sri [ENTITY], learned counsel appearing for the second respondent in two Criminal Petitions contended that the protection given by the Hon'ble Supreme Court of India is only not to arrest the petitioners by police, and in the facts and circumstances of the case, the petitioners have to surrender before the trial Court, and that unless the petitioners surrender and are remanded to judicial custody, the question of filing an application under [SECTION] [ACT] does not arise, and hence, he prays to dismiss the Criminal Petitions.
8. All the counsel relied on various decisions, which will be referred to at appropriate time.
9. It is not in dispute before this Court that anticipatory bail applications filed by the petitioners have been dismissed by the Sessions Court as well as this Court. Challenging the same, the petitioners filed [CASE NUMBER] before the Hon'ble Supreme Court of India whereunder vide order dated 18.5.2012, it is observed thus:
"Be that as it may, we deem it fit and proper to grant protection to the applicants for a period of three weeks from today on the condition that the applicants would apply for regular before the aforesaid court in both the cases by Tuesday i.e. 22.05.2012. On such applications being filed and copies being served on the Public Prosecutor, the trial Court would endeavour to dispose of the same at the earliest.
However, we put the following conditions on the applicants:-
1.That till the matter is taken up and decided by the Trial Court, the applicants would neither transfer nor alienate any of the properties in his personal capacity or as a Director of the Company.
2. He would report to the Police for investigation as and when called, upon written request being served upon respondents.
3. He would not leave the country without permission of the Trial Court.
With the aforesaid directions, petitioners are granted interim protection against arrest for a period of three weeks from today."
A bare reading of the above order would clearly indicate that protection is given with regard to arrest of the petitioners and the petitioners were directed to apply for a regular bail before the court concerned by 22.5.2012, and thereafter, the trial court would make an endeavour to dispose of the same at the earliest, but imposed certain conditions.
10. According to the learned senior counsel appearing for the petitioners, if the petitioners are remanded to judicial custody, the question of condition nos. 2 and 3 imposed by the Hon'ble Supreme Court of India in the above order would be of no use because the police cannot interrogate them and the question of leaving the country may not arise, and that those directions have to be read in the context of other directions. In the aforesaid order of the Hon'ble Supreme Court of India, the ultimate direction given is that the petitioners are granted interim protection against arrest for a period of 3 weeks from that day.
11. There cannot be any dispute that arrest is a part of investigation by a police officer after registration of a crime under [SECTION] [ACT] But, it has to be exercised in accordance with law particularly with reference to the provisions of [SECTION] [ACT] The Section confers very wide powers on the police in order that they may act swiftly for the prevention or detection of cognizable offences without the formality and delay of having to go to a Magistrate for order of arrest. Under [SECTION] [ACT] empowers a private person may arrest or to cause to be arrested any person who commits a non- bailable and cognizable offence. Under [SECTION] [ACT], where any offence is committed in the presence of Magistrate, whether executive or judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender and may thereupon subject to the provisions herein contained as to bail, commit the offender to custody. How arrest can be made is explained in [SECTION] [ACT] which envisages three modes of arrest (a) submission to custody; (b) touching the body physically, or (c) confining the body. These two provisions are in the nature of exception to [SECTION] [ACT] The present case does not fall either under [SECTION] [ACT] or 44 [ACT] Therefore, in the facts and circumstances of the case, only police can arrest the petitioners. If the petitioners surrender or appear before the trial court and apply for regular bail, the question of arrest may not arise. Once a person accused of an offence submits himself for the custody, the Magistrate has to necessarily remand him to the judicial custody. Then only, the question of consideration of bail arises under [SECTION] [ACT]
12. [SECTION] [ACT] consists of 2 parts i.e. it can be invoked firstly, when a person accused of an offence or suspected of the commission of a non- bailable offence, is arrested or detained without warrant by an officer in- charge of police station; and secondly, when a person accused of an offence appears or brought before the court. Appearance, according to the learned Public Prosecutor, must be a physical presence of a person accused of an offence and not appearance through a lawyer. Whereas, according to the learned senior counsel appearing for the petitioners, it can be by way of a constructive custody where an application is filed under [SECTION] [ACT] through his counsel and it is a substantial compliance under [SECTION] [ACT]
On this aspect, learned Public Prosecutor placed strong reliance on a decision in [PRECEDENT], wherein it is held thus:
" Once the investigation makes out a case against him and he is included as an accused in the charge sheet, the accused has to surrender to the custody of the Court and pray for regular bail. On the strength of an order granting Anticipatory Bail, an accused against whom charge has been framed, cannot avoid appearing before the trial court."
13. In [ENTITY] v. State of Madhya Pradesh & another2 it is held thus:
(paras 17, 18 & 22 ) "(17) SINCE the expression "custody" though used in various provisions of the Code, including [SECTION], has not been defined in the Code, it has to be understood in setting in which it is used and the provisions contained in [SECTION] which relates to jurisdiction of the Magistrate to release an accused on bail under certain circumstances which can be characterized as "in custody" in a generic sense. The expression "custody" as used in [SECTION], must be taken to be a compendious expression referring to the events on the happening of which Magistrate can entertain a bail petition of an accused.
[SECTION] envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. There cannot be any doubt that such appearance before the Magistrate must be physical appearance and the consequential surrender to the jurisdiction of the Court of the Magistrate. ( 18. ) IN Black's Law Dictionary by [ENTITY], M.A. (Sixth Edn.), the expression "custody" has been explained in the following manner :
" The term is very elastic and may mean actual imprisonment or physical detention within statute requiring that petitioner be 'in custody' to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty Accordingly, persons on probation or parole or released on bail or on own recognizance have been held to be 'in custody' for purposes of habeas corpus proceeding."
( 22. ) FOR making an application under [SECTION] the fundamental requirement is that the accused should be in custody. As observed in [ENTITY]'s case (supra) the protection in terms of [SECTION] is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of [SECTION] of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under [SECTION] and [SECTION] shall be rendered meaningless and redundant."
14. A Division Bench of this Court, in [PRECEDENT], while dealing with [SECTION] [ACT] (Old Code), which is almost similar to [SECTION] [ACT], observed as follows:
"We are then thrown back upon [SECTION] [ACT] What is urged for the respondent is that the word 'appears' in [SECTION] is susceptible of being interpreted as appearing by a pleader. We do not think that the expression can bear that connotation. It can only mean, the physical appearance of the accused."
15. In a decision in Tupakula Appa Rao v. [ENTITY]4, it is held thus:
(para 9) " IT is obvious from the above Judgements of the Apex Court that one need not be arrested and produced before the Court for the purpose of remand to the judicial custody of the Court. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. However his physical control or at least physical presence coupled with submission to the jurisdiction and orders of the Court is a sine qua non. Be it on the production by the investigating agency or on the own volition of the accused surrendering himself to the custody of the Court, unless one is in the custody, his request for bail cannot be considered in terms of [SECTION] of the Code."
16. In another decision in [PRECEDENT], it is held thus: (para 16).
"IN the aforesaid context a reference can be made to [SECTION] and [SECTION] of the Code, which fall within [SECTION] of the Code under the caption "Provisions as to bail and bonds". IN the former section appearance of accused in bailable offences is dealt with for the purpose of releasing him on bail. "When any person other than a person accused of a non-bailable offence is arrested or detained or appears or is brought before a Court such person shall be released on bail." IN the latter section, releasing an accused on bail in a non-bailable offence is dealt with. "When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or appears or is brought before a Court he shall be released on bail " The appearance mentioned in these sections can only mean physical appearance of the accused and not appearance by counsel because the very notion of bail presupposes restraint of the accused and hence the person who wishes to be released on bail is to appear and surrender before the Court. A person who is not under any sort of restraint does not require to be released on bail. The word "appearance" in [SECTION] cannot be understood different from the same word used in [SECTION] and [SECTION] of the Code."
17. In another decision relied on by the learned Public Prosecutor in [PRECEDENT] it is held thus: (para 14) "AFTER analysing the crucial question is when a person is in custody, within the meaning of [SECTION] of the Code, it was held in [ENTITY]'s case (supra) and [ENTITY]'s case (supra) that for making an application under [SECTION] the fundamental requirement is that the accused should be in custody (?). As observed in [ENTITY]'s case (supra) the protection in terms of [SECTION] is for a limited duration during which the regular court has to be moved for bail. Obviously, such bail is bail in terms of [SECTION] of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under [SECTION] and [SECTION] shall be rendered meaningless and redundant."
From the above decisions, it is clear that the word 'appear' occurred in [SECTION] [ACT] can only mean the physical appearance of the accused in the Court. From the record, it is established beyond doubt that on the date of filing an application for grant of bail under [SECTION] [ACT], petitioners were not present in the court physically.
18. Similarly, in a decision in [PRECEDENT], relied on by the learned Public Prosecutor wherein it is held thus:
" The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular court for bail and to give the regular court sufficient time to determine the bail application. In other words, till the bail application is disposed of one way or the other, the court may allow the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher court, if they so desire. This decision was not intended to convey that as soon as the accused persons are produced before the regular court, the anticipatory bail ends even if the court is yet to decide the question of bail on merits. The decision in [ENTITY] case { (1996) 1 SCC 667} has to be so understood."
The above decision has no application to the facts of the case because no anticipatory or interim anticipatory bail was granted to the petitioners.
19. In another decision relied on by the learned Public Prosecutor in [PRECEDENT] it is held thus: (para 10) "After analyzing the crucial question that when a person is in custody, within the meaning of [SECTION] of the Code, it was held in [ENTITY]'s case (supra) and [ENTITY]'s case (supra) that for making an application under [SECTION] the fundamental requirement is that the accused should be in custody. As observed in [ENTITY]'s case (supra) the protection in terms of [SECTION] is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of [SECTION] of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under [SECTION] and [SECTION] shall be rendered meaningless and redundant."
In the context of [SECTION] [ACT], it is clear from the above decisions that the applicant must be in the custody. The above decisions have no application to the present facts of the case.
20. The learned senior counsel appearing for the petitioners vehemently contended that the petitioners were present as directed by the Hon'ble Supreme Court of India on 22.5.2012. But said aspect cannot be accepted for the simple reason that both the courts below gave categorical finding that the petitioners have not surrendered before the court and have merely filed petitions seeking bail in the two crimes. There is no material produced by the petitioners to show that they were physically present in the trial court on 22.5.2012 or any other subsequent dates.
21. It is also not in dispute before this Court that challenging the impugned common order, the petitioners filed [CASE NUMBER] before this Court, wherein it is stated in one of the grounds that the petitioners prefer to tender their appearance through a lawyer and it was open to the learned Magistrate to call for his personal appearance if required in terms of the expression 'surrender'. In view of the categorical admission made by the petitioners themselves, it is clear that they were not present on the date as directed by the Hon'ble Apex court. Therefore, unless the petitioners surrender or appear physically before the concerned criminal court, it cannot be said that they were in the constructive custody of the court.
22. In the first instance, entertaining the bail application under [SECTION] [ACT] by the learned Magistrate is improper and illegal. [SECTION] [ACT] can be invoked when the person accused of an offence is appears or brought before the court and seeks custody of the court, then only he can invoke [SECTION] [ACT] The question of granting bail arises when he was remanded to judicial custody. In this case, the petitioners neither appeared before the trial court nor were remanded to judicial custody so that the bail application can be decided in accordance with law.
23. Learned senior counsel for the petitioners placed reliance on a decision of the Supreme Court reported in [PRECEDENT], wherein it is held thus: (paras 3, 4 and 5) "THIS appeal is directed against the order of the High Court passed on 11/5/2005 rejecting the bail application filed by the applicant under [SECTION] [ACT] mainly on the question of non-maintainability of the application. According to the High Court the petition under [SECTION] [ACT] is not maintainable as the petitioner was not in custody.
( 4. ) FROM the bail application filed on 19/4/2005 by the appellant under [SECTION] [ACT], it clearly appears that on that day the appellant was in custody as he was on interim bail for 15 days from 13/4/2005 and his application could have been considered on merits instead of dismissing the same on the ground of non-maintainability.
( 5. ) IN the view that we have taken, the impugned order of the High Court is set aside and the matter is remitted back to the High Court to consider the matter afresh on merits. The application filed by the appellant under [SECTION] [ACT] is now restored before the High Court and shall be disposed of on merits. The appellant is directed to appear before the High Court on 21/4/2006. The appellant is granted bail till 21/4/2006."
In the above decision, application under [SECTION] [ACT] of the petitioner therein was dismissed as not maintainable as the petitioner therein was not in custody. But, in view of the various decisions relied upon by the learned Public Prosecutor, it is clear that for invoking [SECTION] [ACT], the petitioners must submit themselves to the custody of the court. Therefore, in the factual back ground of that case, no ratio has been laid down by the Supreme Court that in all cases, the bail application filed under [SECTION] [ACT] can be considered even in the absence of the custody.
24. The learned senior counsel appearing for the petitioners also relied on a decision in [PRECEDENT], wherein it is held thus: (paras 25, 26 and 27).
"WE also agree with Mr. [ENTITY]'s submission that unless a person accused of an offence is in custody, he cannot move the Court for bail under [SECTION] of the Code, which provides for release on bail of any person accused of an offence and in custody (Emphasis supplied ). The pre-condition, therefore, to applying the provisions of [SECTION] of the Code is that a person who is an accused must be in custody and his movements must have been restricted before he can move for bail. This aspect of the matter was considered in [ENTITY]'s case where it was held that a person can be stated to be in judicial custody when he surrenders before the Court and submits to its directions.
IT is no doubt true that in the instant case the accused persons had appeared before the concerned magistrates with their learned advocates and on applying for bail were granted bail without being taken into formal custody, which appears to have swayed one of the benches of the Punjab and Haryana high Court to take a liberal view and to hold that no arrest had actually been effected. The said view, in our opinion, is incorrect as it goes against the very grain of [SECTION] and [SECTION] of the Code. The interpretation of "arrest"
and "custody" rendered by the Full Bench in [ENTITY]'s case (supra) may be relevant in the context of [SECTION] and [SECTION] of the [ACT] where summons in respect of an enquiry may amount to "custody" but not to "arrest", but such custody could subsequently materialize into arrest. The position is different as far as proceedings in the court are concerned in relation to enquiry into offences under the [ACT] and other criminal enactments. In the latter set of cases, in order to obtain the benefit of bail an accused has to surrender to the custody of the Court or the police authorities before he can be granted the benefit thereunder. In Vol. 11 of the 4th Edition of Halsbury's "laws of England" the term "arrest" has been defined in paragraph 99 in the following terms:-
"99 Meaning of arrest. Arrest consists in the seizure or touching of a person's body with a view to his restraint; words may, however, amount to an arrest if, in the circumstances of the case, they are calculated to bring, and do bring, to a person's notice that he is under compulsion and he thereafter submits to the compulsion. " "
Even in the above decision, it is clearly stated that for applying the provisions of [SECTION] [ACT], a person accused of an offence must be in the custody and granting bail without being taken into formal custody by following the judgment of the Punjab & Haryana High Court, which, according to the Supreme Court, is incorrect, and it goes against the very grain of [SECTION] and [SECTION] [ACT] Therefore, even from the above decision, it is clear that custody could only mean physical appearance of the petitioner in the Court.
25. Learned senior counsel also relied on a decision in [PRECEDENT] and contend that when there is ambiguity in the judgment of a higher court, the parties must seek clarification from that court only. There is no dispute about the proposition of laid down by the Apex Court. In this case, there is no ambiguity in the order of the Hon'ble Supreme Court so as to seek clarification.
26. The learned counsel also relied on a decision in [PRECEDENT] wherein it is held that in appropriate cases, the High Court has got power under [SECTION] [ACT] to prevent abuse of process of court or secure ends of justice.
27. Learned counsel Sri [ENTITY], appearing for second respondent in two cases, relied on a decision in [PRECEDENT] wherein it is held thus: (paras 18).
"THE record of the proceedings made by the Court is sacrosanct. THE correctness thereof cannot be doubted merely for asking. In [PRECEDENT], this Court has held :
". . . . . . .the Judges' record was conclusive. Neither lawyer not litigant may claim to contradict it, except before the Judge himself, but nowhere else. THE Court could not launch into inquiry as to what transpired in the High Court. THE Court is bound to accept the statement of the Judges recorded in their judgment, as to what transpired in Court. It cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. THE principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there." "
It is clear that with regard to the findings or observations given by a court, that court alone has to clarify the same. If really the petitioners were not present, as observed by the learned Magistrate, the petitioners can get clarification from the same court. Further, on own admission made by the petitioners, they were not present in the trial court.
28. Learned counsel Sri [ENTITY], appearing for second respondent in two cases, relied on a decision in [PRECEDENT], wherein it is held thus:
"The judgment of a court, as is well known, should not be read as a statute. It has to be read in its entirety. So read, the appellants had become entitled to the grant of benefits contemplated thereby. There is no reason why the same shall be denied to them. Our attention has also been drawn to the fact that apart from [ENTITY] and others some other persons who were similarly situated, namely, [ENTITY], [ENTITY] and [ENTITY], have also been granted the same benefits."
There is no dispute that no judgment of a court can be read as a statute.
29. Learned Public Prosecutor also relied on a decision in [PRECEDENT], wherein it is held thus: (para 32).
"In this regard, it is to be borne in mind that a court of law has to act within the statutory command and not deviate from it. It is a well settled proposition of law what cannot be done directly, cannot be done indirectly. While exercising a statutory power, a court is bound to act within the four corners thereof. The statutory exercise of power stands on a different footing than exercise of power of judicial review. This has been so stated in Bay Berry Apartments (P) Ltd and [PRECEDENT] and State Brassware Corporation Ltd. and Anr. V. Uday Narain Pandey MANU/SC/2321/2005:
(2006) 1 SCC 479."
30. Learned senior counsel for the petitioners also relied on the following decisions.
(a) In [PRECEDENT], wherein it is held thus:
(para 9) "IT is impermissible for the High Court to overrule the decision of the Apex Court on the ground that Supreme Court laid down the legal position without considering any other point. IT is not only a matter of discipline for the High Courts in India. IT is the mandate of the [ACT] as provided in [SECTION] that the law declared by the Supreme Court shall be binding on all courts within the territory of India. IT was pointed out by this Court in [PRECEDENT], that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court."
(b) In [PRECEDENT] wherein it is held thus:
"I am afraid that it is not possible for me to countenance this contention of the counsel for the accused. It is true that Lord Chief Justice [ENTITY] described that the soul of law consists in its special reason that speaks only to Judges but eludes the grasp of the kings like the Ghost in Hamlet. It is also true that what distinguishes law from policy is the logic that is immanent in a judgment and the reason that lies behind a decision. The ratio decidendi of a case is not the decision but the reason behind the decision. It must, therefore, be accepted that statement of reasons is an integral and inseparable part of declaration of law. Clearly in our system of hierarchy of Courts, even the lowest of Courts cannot be absolved of its duty and responsibility to find out what the ratio decidendi of a decision rendered by the higher court is before it seeks to apply it. All this clearly presupposes that the higher court has given its reasons for the decision."
(c) In [PRECEDENT] wherein it is held thus: (paras 32 & 33).
"(32) [SECTION] vests the Supreme Court with a repository of discretionary power that can be wielded in appropriate circumstances to deliver "complete" justice in a given case. Only Bangladesh ([SECTION] and Nepa (ARTICLE 88(2 include similar provisions in their [ACT]s.
( 33. ) [SECTION] is an important constitutional power granted to this Court to protect the citizens. In a given situation when laws are found to be inadequate for the purpose of grant of relief, the Court can exercise its jurisdiction under [SECTION] of the [ACT]. In [PRECEDENT], this Court held :
"[t]he phrase "complete justice" engrafted in [SECTION] is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of statute law or law declared under [SECTION], [SECTION] and [SECTION] of the [ACT],"
(d) In [PRECEDENT], wherein it is held thus:
"UNDER [SECTION] of the [ACT] this Court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any 'cause' or 'matter' pending before it. The expression "cause" or "matter" would include any proceeding pending in court and it would cover almost every kind of proceeding in court including civil or criminal. Though there is no provision like [SECTION] of the [ACT] conferring express power on the Supreme Court to quash or set aside any criminal proceedings pending before a criminal court to prevent abuse of process of the court, but the inherent power of this Court under [SECTION] coupled with the plenary and residuary powers under [SECTION] and [SECTION] embraces power to quash criminal proceedings pending before any court to do complete justice in the matter before this Court. If the court is satisfied that the proceedings in a criminal case are being utilised for oblique purposes or if the same are continued on manufactured and false evidence or if no case is made out on the admitted facts, it would be in the ends of justice to set aside or quash the criminal proceedings. Once this Court is satisfied that the criminal proceedings amount to abuse of process of court, it would quash such proceedings to ensure justice. This Court's power under [SECTION] to do "complete justice" is entirely of different level and of a different quality. What would be the need of "complete justice" in a cause or matter would depend upon the facts and circumstances of each case and while exercising that power the Court would take into consideration the express provisions of a substantive statute. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this Court. Once this Court has seisin of a cause or matter before it, it has power to issue any order or direction to do "complete justice" in the matter."
There is no dispute that the law laid down by the Supreme Court is binding on all the courts and tribunals throughout the India, and as rightly pointed out by the learned senior counsel appearing for the petitioners that when there is ambiguity in the order, parties have to seek clarification from the concerned court which passed the order. There is no dispute about the law laid down in the factual back ground of the cases.
31. It is well settled law that the judgment of any court cannot be read so as to nullify a statutory provision. In the case on hand, the petitioner were given a concession of not to arrest by police for a period of three weeks. That concession was given only to enable them to surrender and apply for regular bail. No doubt, some conditions were imposed that they shall make themselves available for interrogation by police as well as not to leave the country. That concession appears to have given on the ground that if the case was not taken up for any sufficient reason by the trial court within a period of three weeks. If the petitioners surrender before the court, those conditions would come to an end and those conditions cannot be implemented in view of the fact that they have to be remanded to judicial custody. By reason of imposition of the conditions, it cannot be presumed or inferred that they cannot be remanded to judicial custody. The period of three weeks is the outer limit for the petitioners to seek regular bail. Seeking regular bail comes only when they surrender before the court or appears before the Court under [SECTION] [ACT] As seen from the orders of the trial court as well as the appellate court, it is clear that the petitioners neither surrendered nor were present in the court as directed by the Apex Court. Therefore, in the facts and circumstances of the case, it is a case where this court is constrained to observe that the provisions of the [ACT] have been misused by the petitioners by interpreting the judgment of the Apex Court, and they did not care to attend the trial court on 22.5.2012 as directed by the Hon'ble Supreme Court. Simply because police filed a petition under [SECTION] [ACT] for grant of custody for interrogation, it does not mean that the petitioners submitted themselves to the custody. Police may be under the impression that they might have surrendered before the court and therefore they filed the said application. In view of the categorical finding given by the trial court that the petitioners were not present, the contents in the application filed by the police may not be relevant for the purpose of deciding the issue.
32. It is brought to the notice of this Court that police filed charge sheet and they also filed application under [SECTION] [ACT]. seeking permission for conducting further investigation. Such is the case, the custodial interrogation of the petitioners is very much essential for the purpose of conducting further investigation. Therefore, the petitioners totally misused the provisions of the [ACT] and without surrendering themselves to the Court, they filed the bail application, may be under the threat of the contempt of the Apex Court order, and by wrong interpretation of the order of the Apex Court order, bail was obtained. Filing of the bail application under [SECTION] [ACT] itself is illegal and consequently granting of the bail by an illegal application cannot be continued further. That is the reason why the learned Sessions Judge rightly cancelled the bail. The said order does not suffer from any illegalities so as to exercise powers under [SECTION] [ACT] by this Court to quash the same. The Criminal Petitions are devoid of merit and are liable to be dismissed.
33. The Criminal Petitions are, accordingly, dismissed directing the police to arrest the petitioners on or after 16.12.2012 if their custody is required or the petitioners can surrender themselves before the court and file an application for grant of bail under [SECTION] [ACT] only after remand to judicial custody. Miscellaneous Petitions pending, if any, in the Criminal Petitions shall stand closed.
([ENTITY], J.) 13.12.2012