IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 39 OF 2009 IN CRIMINAL APPLICATION NO.2452 OF 2008 Nafeesa P. Khan ...Applicant Vs. Khurshid Maqbool Siddiqui & Anr. .. Respondents --- Shri Rizwan G. Merchant / Swapnil L. Wagh for Applicant Ms. Anjali Iyer for Respondent No.1 Mr.D.P. Adsule, APP for the State ---- CORAM: V.M. KANADE J. DATED 20TH MARCH, 2009 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant and the Learned APP for the State. 2. This application has been filed by the Applicant seeking an order from this Court that the Respondent No.1 herein be directed to appear before the Court of Metropolitan Magistrate for completing the bail procedure by submission of solvent surety and execution of bail bond as per the guidelines of the High Court Criminal Manual and the Code of Criminal Procedure. It is also prayed that this Court should direct the Court of the Learned Metropolitan Magistrate, Railway Mobile Court, Andheri, Mumbai to regularize the bail procedure of the Respondent No.1 by taking recourse to proper procedure under the Code of Criminal Procedure and the directions and guidelines in the High Court Criminal Manual for acceptance of sureties and execution of bail bond. 3. Brief facts which need to be stated are as under:- The Applicant is the original complainant who had filed a complaint against the Respondents herein for the offences punishable under sections 376, 323 and 506(II) of the Indian Penal Code vide C.R. No.175 of 2008 registered with Respondent No.2- Versova Police Station, Mumbai. The Respondent No.1 had filed an application for anticipatory bail in the Court of Sessions. However, the said application was rejected. Against the said order, he had preferred an application for anticipatory bail in this Court and by order dated 31st July, 2008 in Criminal Application No.2452 of 2008, this Court (Smt. V.K. Tahilramani J.) was pleased to grant anticipatory bail in a sum of Rs.30,000/- with one or two sureties to make up the said amount, with further condition that he should report to Versova Police Station between 11 a.m. & 1 p.m. for a period of 15 days and that, thereafter, he shall not enter the jurisdiction of Versova Police Station for a period of three months. 4. Against this order, a Special Leave Petition has been filed by the Applicant in the Apex Court. By order dated 11th September, 2008, the Apex Court was pleased to pass an order of issuing notice to the Respondent and the Apex Court had further directed that the said bail granted by this Court was for a limited period till filing of the chargesheet for which the Respondent was directed to appear before the Court and apply for regular bail. The Applicant, thereafter, filed an application for cancellation of bail before the Metropolitan Magistrate and also filed an application that the procedure which was prescribed under the Criminal Manual and the Code of Criminal Procedure for granting bail was not followed by the Respondent No.1 and though the police officer was not authorised to verify the list of properties given by an accused and /or to accept solvent surety, the police officer had released the Respondent No.1 on bail and, therefore, the guidelines given under the Criminal Manual, more particularly, Guideline 14(i) in respect of verification of solvency of surety had not been complied. Similarly, Guideline No.15 which prescribed that the solvency certificates for an amount of Rs.30,000/- can only be issued by the Tahasildar, had also not been followed. It is submitted that, therefore, there was a clear irregularity committed by the police officer and, therefore, direction may be given to the Respondent No.1 to remain present before the Magistrate by following the said procedure as laid down under the Criminal Manual. An affidavit has been filed by the police officer, in which he has stated that after the verification of the document tendered by the Respondent No.1 pursuant to the order passed by this Court, he was released on bail and the police had verified the documents and solvency in respect of the residential address, occupation, income tax documents, electricity bills etc. and, thereafter, bail bond application form came to be filled up and, thereafter, the Respondent No.1 was release don bail. 5. The learned Counsel appearing on behalf of the Respondent No.1, on the other hand, submitted that where the Court of Sessions or the High Court grants anticipatory bail, in such cases in view of the provisions of section 438 (3) of the Criminal Procedure Code, the police officer has no other option but to grant bail to the accused. She has invited my attention to the aforesaid provisions and submitted that the said provisions, therefore, in cases where discretion is exercised in favour of the accused by the Court of Sessions or the High Court, would over-ride the guidelines which were prescribed under the Criminal Manual. 6. In my view, the submission made by the learned Counsel for the Applicant cannot be accepted. There is much substance in the submission made by the Learned Counsel appearing on behalf of the Respondent No.1. 7. Section 438 of the Criminal Procedure Code was incorporated in the statute in order to ensure that whenever any false accusation has been made against innocent persons on account of political rivalry, business or personal rivalry or enmity, then, in such cases, such persons are not detained by the police and thereby loose their reputation and/or defamed in that process, the Sessions Court or the High Court could grant advance bail to such persons in order to ensure that after advance bail is granted by the Court, the person is not detained. Sub-clause (3) of section 438 clearly provides that whenever he is arrested or he is in the custody of the police, he should be released forthwith upon furnishing bail. Section 438 (3) reads as under: “(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 congnizance 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).” It is evident from the aforesaid provisions that the legislature in order to ensure that the provisions of sub-section (1) of section 438 is complied by the police, has given a mandatory direction to the police officer to release such person on bail. Even the Magistrate also has been given a mandatory direction when he takes cognizance of the offence to issue a bailable warrant. The power of the police officer or the Magistrate, therefore, to detain the accused has been taken away, if advance bail is granted by the Sessions Court or by the High Court. The said provision has been incorporated in order to ensure that the provisions of sub-section (1) of section 438 are not rendered nugatory or meaningless and a direction to that effect has been given to the police officer and the Magistrate under sub- clause (3) of section 438. 8. The Criminal Manual has been issued by the High Court for the purpose of laying down the guidelines to the police officers and to the Lower Courts. These guidelines, therefore, cannot over-ride the substantive provision, which is found in this case in sub-clause (3) of section 438. Under these circumstances, the application filed by the Applicant is rejected. 9. The Applicant has filed an application for cancellation of bail before the Learned Magistrate. The said application is kept pending on account of the present application which has been filed in this Court. In the said application which has been filed the allegations are made that after anticipatory bail was granted by this Court, subject to conditions which were imposed by this Court, the Respondent No.1 had violated those conditions and has not only entered the jurisdiction of the concerned police station but also threatened the Applicant herein and had assaulted her on more than one occasion. 10. It is also submitted by the learned Counsel appearing on behalf of the present Applicant that as a result of constant threats and assault by the Respondent No.1, the Applicant had attempted to commit suicide. Since the allegations which are made in the said application are of serious nature, the Magistrate is directed to decide the said application expeditiously and in any case within a period of two months. The Respondent No.1 is directed to comply with the conditions which were imposed by this Court and not to threaten the Applicant No.1. The matter is already fixed for hearing before the Magistrate on 8th of April, 2009 on which date both the parties shall proceed with the applications. 11. Application is disposed of. V.M. KANADE J. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.39 OF 2009 IN CRIMINAL APPLICATION NO.2452 OF 2008 Date of decision: 20TH MARCH, 2009 For approval and signature: The Hon'ble Shri Justice V.M. KANADE 1. Whether Reporters of local news- paper may be allowed to see the Judgment? 2. Whether to be referred to the Reporter or not? 3. Whether this case involve a substantial question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? 4. Whether the case involves an important question of law and whether a copy of the judgment should be sent to Nagpur, Aurangabad and Goa Offices? ---------------