IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRIMINAL MISC.NO.21713 M OF 2007 DATE OF DECISION: JULY 30,2007 Amarinder Singh and another .....Petitioners VERSUS State of Punjab and others. ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. R.S.Ghai, Sr.Advocate with Mr. M. L.Saggar, Sr.Advocate with Mr. G.S.Brar, Mr.J.S.Dhaliwal & Mr. G.P.Vashisht, Advocates, for the petitioners. Mr. H. S. Mattewal, Advocate General, Pb. With Mr. M. C. Berry, Sr.DAG, Punjab, for the State. ****** RANJIT SINGH, J. While issuing notice to the State in this case, the allegations made against the petitioners in the FIR were noticed in detail and bail granted to the petitioners in anticipation of their arrest subject to the satisfaction of Arresting Officer. This bail was subject to the conditions contained in Section 438 (2) Cr.P.C. The petitioners were further directed to join investigation as and when summoned. This order was impugned by the State by filing Special Leave Petition before the Hon'ble Supreme Court. On 20.6.2007, while dismissing the CRIMINAL MISC.NO.21713 M OF 2007 :{ 2 }: S.L.P., Hon'ble Supreme Court held as under:- “Heard learned counsel for the petitioner and Mr.K.Parassarn learned senior counsel. It is stated that the matter has been fixed for 30.7.2007. It is stated that the respondents are willing to appear on the 4th July, 2007 so that their application can be disposed of in accordance with law. In view of this statement, we are not inclined to interfere with the impugned order which is an interim order. We make it clear that while dealing with the application for bail the principles laid down by this Court in Adri Dharan Das Vs. State of West Bengal, reported in 2005 (4) SCC 303 shall be kept in view. Since the other matters are listed on 4th July, 2007, we are not inclined to interfere with the impugned orders which are interim in nature. While dealing with these petitions the Court shall keep in view the law laid down in 2005 (4) SCC 303. The special leave petitions are dismissed accordingly.” The copy of the above order has been placed on record by the State alongwith numerous Zimni orders and affidavit of the Investigating Officer, revealing the material collected in the course of investigation in this case. Keeping in view the order passed by the Hon'ble Supreme Court, the case was taken up for hearing on 4.7.2007 by preponing the same and was heard on subsequent dates. The petitioners have filed their response to the details brought on record by the Investigating Agency and, thus, a routine application CRIMINAL MISC.NO.21713 M OF 2007 :{ 3 }: for anticipatory bail has been made to acquire voluminous record running in hundreds of pages. Not only this, numerous issues, almost settled, have been racked up in a hot debate spanning over days of arguments. To understand the nature of challenge raised in the S.L.P., the State was told to place on record the copy thereof. From the perusal of the S.L.P., it is noticed that the State had made a mention to number of facts and placed material on record, which was either not available or came into being subsequent to the date of the order. In order to have a clear picture in this regard, the Investigating Officer was required to file an affidavit indicating what all material, which was referred to in the S.L.P., was not available on record of the present petition at the time of passing of the interim order. Though the order was complied with but the Investigating Officer appears to have made conscious effort to be evasive in this regard and instead has made painstaking efforts in stating what he had already placed on record in the form of Zimni orders earlier. The Investigating Officer seems to convey that the statement made by one Chetan Gupta is the only material, which was not available when this Court made the interim order and this has been referred to in the S.L.P. This may not reflect the true picture in this regard. There are numerous additional material which were unfairly placed on record of the S.L.P. without these being made available before this Court. As an example, it may be noticed that the State has placed Annexure P- 13 on record of the S.L.P., which is stated to be an application moved before this Court for recall of the interim order passed by this Court in the present petition. This application had never been listed before this Court but is so mentioned in the S.L.P. So would be the CRIMINAL MISC.NO.21713 M OF 2007 :{ 4 }: position in regard to Annexures P-1, P-2, P-5, P-6, P-7, P-8, P-9, P- 10 etc. This requirement was projected to the Investigating Officer in the light of the certificate given by counsel for the State of Punjab that this Special Leave Petition is confined only to the pleadings before the Punjab and Haryana High Court at Chandigarh. This certificate by the counsel was on instructions given by the Investigating Officer. Thus, a clear attempt on the part of the Investigating Officer and the State to mis-lead can be seen. Investigating Officer is an officer having rank of S.P. He is not a fresher who can be asked to sign on dotted lines. He has been found utterly casual in another case connected with this FIR where he has acted in this manner. I say no more on this, except that the State and the Investigating Officer can be expected to behave more responsibly rather than acting in this casual and chivalrous manner. A simple requirement for deciding the prayer for pre- arrest bail made by the petitioner is made to acquire contentious issues. Applications for grant of anticipatory bail are filed before this Court in a plenty in routine and are dealt with so in large number. Still this case has been a subject matter of intensive debate and heated arguments. It is perhaps because of the personalities involved, and if one was to quote the petitioners, is purely due to a political vendetta against the petitioners upon change of Government in the State. Extensive arguments spanning over days and numerous judgments cited by the counsel in support of their respective submissions have given real task to the Court. Thus, a small issue requiring to see if interim anticipatory bail granted to the petitioner is to be continued or not, has invited debate on the nature CRIMINAL MISC.NO.21713 M OF 2007 :{ 5 }: of order to be made and even to the very grant of power of anticipatory bail, as it is loosely referred. As the counsel appearing for the respective parties have made submissions in detail before me, it would be rather unfair not to deal or discuss with the issues that have been agitated before me and accordingly I proceed to do so. The primary issue that would arise for consideration flows from the observations made by the Hon'ble Supreme Court as reproduced above. The ratio of law laid down by the Hon'ble Supreme Court in the case of Adri Dharan Das Vs. State of W.B., (2005) 4 Supreme Court Cases 303 was a matter of intense debate where the counsel took varying stand which was to an extent unreasonable from both sides. Mr.R.S.Ghai, appearing for the petitioners, made extensive reference to the case of Gurbaksh Singh Sibbia etc. Vs. The State of Punjab, AIR 1980 Supreme Court 1632 to say that the judgment has settled the law regarding grant of anticipatory bail and other connected issues without any scope of doubt and that it is required to be followed, being a decision by a Constitutional Bench, even if some different observations are made in any judgment, which is by a Bench of lesser Judges. In a way, Mr.Ghai sought to contend that if law laid down in Adri Dharan Das's case (supra) was contrary to the view taken by the Constitutional Bench in Gurbaksh Singh Sibbia's case (supra), then the Court would be bound to follow the law laid down by the Constitutional Bench rather than in any other judgment rendered by Bench constituted by less number of Judges. Learned Advocate General, however, joins serious issues in this CRIMINAL MISC.NO.21713 M OF 2007 :{ 6 }: regard and submits that this Court would be bound to follow the ratio of law laid down in Adri Dharan Das's case (supra), as has been specifically directed to do so in the present case rather than looking for law laid down anywhere else. To support their respective submissions, the counsel have referred to some judgments, which may need a notice here. Mr.Ghai has drawn my attention to the case of P.Ramachandra Rao Vs. State of Karnataka, AIR 2002 SC 1856, particularly to the observations made by Doraiswamy Raju, J., which read as under:- “2. The declaration of law made by the Constitution Bench of five learned Judges of this Court in the decision reported in A.R.Antulay's case [(1992) 1 SCC 225] still holds the field and its binding force and authority has not been undermined or whittled down or altered in any manner by another decision of a larger Bench. Consequently, the Benches of lesser number of Constitution of Judges which dealt with the case reported in “Common Cause” A Regd. Society through its Director v. Union of India & Ors. [(1996) 4 SCC 33]; “Common Cause” A Regd.Society through its Director v. Union of India & Ors. [(1996) 6 SCC 775]; Raj Deo Sharma v. State of Bihar [(1996) 7 SCC 507] and Raj Deo Sharma (II) v. State of Bihar [(1997) 7 SCC 604] could not have laid down any principles in derogation of the ratio laid down in A.R.Antulay's case (supra) either by way of elaboration, expansion, clarification or in the process of trying to distinguish the same with reference to either the CRIMINAL MISC.NO.21713 M OF 2007 :{ 7 }: nature of causes considered therein or the consequences which are likely to follow and which, in their view, deserve to be averted. Even where necessities or justification, if any, were found therefor, there could not have been scope for such liberties being taken to transgress the doctrine of binding precedents, which has come to stay firmly in our method of Administration of Justice and what is permissible even under such circumstances being only to have had the matter referred to for reconsideration by a larger Bench of this Court and not to deviate by no other means. This solitary reason would suffice by itself to overrule the above decisions, the correctness of which stand referred to for consideration by this Bench. All the more so when, there is no reason to doubt the correctness of the decision in A.R.Antulay's case (supra) and this Bench concurs with the principles laid down therein.” The counsel would then refer to N.Meera Rani Vs. Govt. of T.N. And another, AIR 1989 Supreme Court 2027 to urge that decision by the Constitutional Bench has to rank superior when compared to any subsequent decision by the Benches comprised of lesser number of Judges. In this case, the Hon'ble Supreme Court has observed that “the starting point is the decision of a Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan, (1964) 4 SCR 921; (AIR 1964 SC 334). All subsequent decisions which are cited have to be read in the light of this Constitution Bench decision since they are decisions by Benches comprised of lesser number of CRIMINAL MISC.NO.21713 M OF 2007 :{ 8 }: 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 (supra).” The Court further went on to observe that “none of the observations made in any subsequent case can be construed at variance with the principle indicated in Rameshwar Shaw's case (supra) for the obvious reason that all subsequent decisions were by benches comprised of lesser number of Judges.” In contrast, learned Advocate General would refer to the case of Suganthi Suresh Kumar Vs. Jagdeshan, (2002) 2 Supreme Court Cases 420 to say that it is not for the High Court to by-pass legal proposition laid down by the Supreme court. The Hon'ble Supreme Court has held in this case that it is impermissible for the High Court to over-rule the decision of the Apex Court on the ground that the Supreme Court laid down the legal position without considering any other point. The Supreme Court also observed that it is not only a matter of discipline for the High Courts in India but is a mandate of the Constitution as provided in Article 141 of the Constitution. There is no doubt that it is rather impermissible for High Court to question even the correctness of any decision of the Supreme Court and this position would not be open to any debate. It may, however, require a notice that Suganthi Suresh Kumar's case (supra) did not deal with a situation where the question arose about the binding nature of a law laid down by the Constitutional Bench of the Hon'ble Supreme Court and another Bench of the Court having lesser Bench strength. Though may sound academic, but if High Court prefer a decision rendered by a Bench of lesser Judges in CRIMINAL MISC.NO.21713 M OF 2007 :{ 9 }: preference to a law laid down by a Constitution Bench, then allegation may come that the High Court has decided a case by ignoring the decision of a Constitutional Bench, equally binding on the High Court in terms of Article 141 of the Constitution of India. Reference is also made to the case of Rapti Commission Agency Vs. State of U.P., and others, (2006) 6 Supreme Court Cases 522, where the Hon'ble Supreme Court deprecated the action of the High Court in adjudging the correctness of the view of the Hon'ble Supreme Court. This was again a case where the High Court has commented about the correctness of the judgment by observing that several larger Benches decisions were not considered and this approach of the High Court was termed inappropriate. There can not be any debate on this but no such issue has arisen in the present case. Reference is then made to C.N.Rudramurthy Vs. K.Barkathulla Khan and others, (1998) 8 Supreme Court Cases 275. In this case, the Hon'ble Supreme Court has observed that a law laid down in a particular case is the applicable law, it is not open to the High Court to consider or rely on any supposedly conflicting decision. Relying upon the ratio in this case, the Advocate General has stressed that this Court has only to take into consideration the law laid down in Adri Dharan Das's case (supra) and no other, even if this may supposedly be in conflict with any other decision, including the decision rendered by the Constitutional Bench of the Apex Court. I can not subscribe to the view convassed by the Advocate General. Precedents are in plenty which would run contrary to this proposition propounded on behalf of the State. In Union of CRIMINAL MISC.NO.21713 M OF 2007 :{ 10 }: India and another Vs. K.S.Subramanian, AIR 1976 SC 2433, it is held by Supreme Court that it is a duty of High Court to follow opinion expressed by larger benches of Supreme Court and this practice is followed by Supreme Court and has crystalized into a rule of law. In N.Meera Rani's case (supra), it was also held that “none of the observations made in any subsequent case can be construed at variance with the principle indicated in Rameshwar Shaw's case (supra) for obvious reason that all subsequent decisions were by Benches comprimised of lesser number of Judges.” Thus, the view that Adri Dharan Das's case (supra) is to be followed even if it is in conflict with a ratio laid down in Constitutional Bench decision in Gurbaksh Singh Sibbia's case (supra) would not be a correct view of law convassed. I am not going into the aspect whether observation made while dismissing S.L.P. would lay down any law. The issue here is simple and it emanates from the observations made by the Hon'ble Supreme Court while dismissing the S.L.P. filed by the State. While dismissing the S.L.P., the Hon'ble Supreme Court observed that the present application is to be disposed of `in accordance with law' and while doing so, this Court is `to keep in view' the principle laid down in Adri Dharan Das's case (supra). It is convassed before me by counsel for the petitioners that if Adri Dharan Das's case (supra) is read in the light of submissions made by the Advocate General, then it may appear to lay down a ratio contrary to the law laid down by the Constitutional Bench in Gurbaksh Singh Sibbia's case (supra). In this context, it would be appropriate to notice what exactly the Advocate General has to say in regard to the ratio of law laid down by the Hon'ble Supreme Court in Adri Dharan CRIMINAL MISC.NO.21713 M OF 2007 :{ 11 }: Das's case (supra). He at one stage convassed that Adri Dharan Das's case (supra) seems to have held that a power to grant stay of arrest in anticipation thereof is not available and that such an order, if at all required, can be for a limited duration, say a few days to enable the accused to move the regular Court in terms of Section 439 Cr.P.C. When pointed out that there may be a contradiction in this submission, as he can not say that there is no power to stay arrest and at the same time maintain that it has to be for a limited duration. He then changed stance a bit to submit that such bail can be granted for a very limited duration, say for a few days to enable the applicant to approach regular Court. On this, the counsel for the petitioner joins serious issues with the Advocate General by referring to the case of Gurbaksh Singh Sibbia (supra). Since conflict between the parties in regard to the jurisdiction of this Court to grant anticipatory bail become narrow and they were at variance mainly with regard to exercise of such jurisdiction concerning the duration of such bail, there may not be a need to decide about power of the High Court to grant anticipatory bail. In fact, no discussion in this regard is needed, the issue having been fully settled by the Constitutional Bench decision of the Hon'ble Supreme Court in Gurbaksh Singh Sibbia's case (supra). It would otherwise also be too late in a day to urge that there is no such power available with the High Court or Court of Sessions in view of a specific provision made in this regard in the form of Section 438 Cr.P.C., which has been brought on the statute book with due deliberation in this regard. The observations of the Law Commission in regard to necessity of introducing such a provision in the Code may be noticed:- CRIMINAL MISC.NO.21713 M OF 2007 :{ 12 }: “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 Constitutional Bench was further to observe in Gurbaksh Singh Sibbia's case (supra) that there are no constrains as were engrafted by the Full Bench of this Court in regard to the powers conferred by Section 438 Cr.P.C. in the exercise of this power. While saying so, it is held:- “12. We find ourselves unable to accept, in their totality, the submissions of the learned Additional CRIMINAL MISC.NO.21713 M OF 2007 :{ 13 }: Solicitor-General or the constraints which the Full Bench of the High Court has engrafted on the power conferred by Section 438. 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. Though the right to apply for anticipatory bail was conferred for the first time by Section 438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, insofar as the right to apply for bail is concerned. It had before it two cognate provisions of the Code: Section 437 which deals with the power of courts other than the Court of Session and the High Court to grant bail in non- bailable cases and Section 439 which deals with the “special powers” of the High Court and the Court of Session regarding bail. The whole of Section 437 is CRIMINAL MISC.NO.21713 M OF 2007 :{ 14 }: riddled and hedged in by restrictions on the power of certain courts to grant bail.” Thus, there can not be any matter of doubt that this Court will have power to grant anticipatory bail and such power is not hedged by any condition or constrains. In this regard, reference can be made to the observations of the Constitutional Bench in Gurbaksh Singh Sibbia's case (supra) to the effect that any statutory provision concerned with person's liberty can not be whittled down by reading restrictions and limitations into it. The Hon'ble Supreme Court in this regard so spoke:- “26. We find a great deal of substance in Mr.Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over- generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision CRIMINAL MISC.NO.21713 M OF 2007 :{ 15 }: contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi's, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of