1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5307 OF 2009 1. Mr. Ashik Rameshchandra Shah 2. Mrs. Darshana Ashik Shah 3. M/s Dhavan Spinning & Knitting Ltd., Through its Director Mr. Ashik Rameshchandra Shah .... Applicants. V/s State of Maharashtra (Tardeo Police Station) .... Respondent. ---- Mr. Adhik Shirodkar, Senior Counsel i/b Mr. Rajendra Shirodkar, Mr. Archit Sakhalkar & Mr Nihar Ghag for the applicants. Mrs. S.D. Shinde, APP for the State. ---- CORAM: V. M. KANADE, J. DATE : 4TH DECEMBER, 2009 P.C.:- 1 Heard the learned Senior Counsel appearing on behalf of the applicants and the learned APP appearing on behalf of the State. 2 2 On 24/11/2009, Sessions Court directed the applicants to remain present before the Court on 27/11/2009. However, oral prayer made by the applicants for protection from arrest till 27/11/2009 was rejected. On 25/11/2009, application for anticipatory bail was rejected in view of application for withdrawal of the anticipatory bail application filed by the applicants vide Exhibit-8. Applicants, therefore, apprehending arrest by the police were constrained to file this application in this Court 3. An interesting question, therefore, which has been raised before this Court is whether power of the Sessions Court in Maharashtra to direct the applicant – accused to remain present can be exercised without taking into consideration the application for interim protection and the manner, method and circumstances in which the said power has to be exercised. Before taking into consideration the facts of the present case, therefore, it would be relevant to take into consideration the Maharashtra Amendment. In 1993, the State Government was pleased to amend section 438 of the Code of Criminal Procedure which is a Central Act 3 and the provisions viz. sub-sections (3) and (4) were inserted. The amended section 438 of the Criminal Procedure Code reads as under:- “438. Direction for grant of bail to person apprehending arrest.- (1) When any person has reason to believe that he may be arrested on an 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:- (i) the nature and gravity or seriousness of the accusation as apprehended by the applicant; (ii) the antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence; (iii) the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested; and 4 (iv) the possibility of the applicant, if granted anticipatory bail, fleeing from justice, 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. (2) Where the High Court, or as the case may be, the Court of Session, considers it expedient to issue an interim order to grant anticipatory bail under sub-section (1) the Court shall indicate therein the date on which the application for grant of anticipatory bail shall be finally heard for passing an order thereon, as the Court may deem fit; and if the Court passes any order granting anticipatory bail, such order shall include, inter alia, the following conditions, namely :- (i) that the applicant shall make himself available for interrogation by a police officer as and when required; 5 (ii) that the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the accusation against him so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) that the applicant shall not leave India without the previous permission of the Court; and (iv) such other conditions as may be imposed under sub-section (3) of section 437 as if the bail was granted under that section. (3) 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 Commissioner of Police, or as the case may be, the concerned 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. (4) 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 6 considers such presence necessary in the interest of justice. (5) On the date indicated in the interim order under sub-section (2), the Court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm modify or cancel the interim order made under sub-section (1).” The distinguishing feature, therefore, so far as State of Maharashtra is concerned is that if an application is made by the Public Prosecutor to the Court seeking an order for securing presence of the applicant then the Court can pass an order after taking into consideration the fact that such presence is necessary in the interest of justice. The question which falls for consideration is : whether, provisions of sub- sections (3) & (4) of section 438 have to be read together? In other words, whether it is open for the Court to direct the accused to remain present if such a request is made by the Public Prosecutor and refuse interim order to the accused. 4. Shri Adhik Shirodkar, the learned Senior Counsel 7 appearing on behalf of applicants submitted that it is a well settled position in law that power which has to be exercised by the Sessions Courts and by the High Courts is concurrent power and that by virtue of practice which has been prevalent and by virtue of various judgments of various High Courts and Supreme Court, it has now been laid down that the applicant – accused has to first approach the Sessions Court and, thereafter, he can approach the High Court and if such an application is made in the High Court, the said application has to be treated as fresh application. He submitted that in exceptional circumstances, the applicant may choose to apply directly to High Court under certain exceptional circumstances, otherwise the normal rule is to first approach the Sessions Court. In support of the said submission, he invited my attention to the judgments of various Courts which I shall refer to at the latter stage. He submitted that, therefore, as a result of the law laid down by the various courts including this court, applicant has no other option buy to approach the Sessions Court. He submitted that, however while exercising power under sub- section (4) of section 438 (inserted by Maharashtra 8 Amendment Act 24 of 1993 w.e.f. 28-7-2993) giving direction to the accused to remain present in Court, the Court has to consider the question of granting interim relief so as to protect him when he appears before the court, otherwise in view of various judgments of this Court and the Apex Court, it is open for the Investigating Officer to arrest the accused without warrant in cases where offence is a cognizable offence, if no protection has been granted by the court. He submitted that, therefore, if no interim protection is granted by the Court and accused is directed to remain present in court, the Investigating Officer can wait for the applicant at the gate of the court and pounce upon him to arrest him since he does not have interim protection. It is therefore submitted that the very purpose of provisions of section 438 would be defeated if interim protection is not granted to the accused and, at the same time, he is directed to remain present in court. He submitted that while considering the application made by the prosecution seeking presence of the applicant in court, the court cannot act in a mechanical manner and has to consider whether presence of the accused is necessary in the interest of justice. He further 9 submitted that the words ‘interest of justice’ have not been defined in the Act nor the word ‘justice’ and, therefore, the expression “interest of justice” would mean interest not only of the prosecution in carrying out investigation pursuant to the power given to them under the law but also the interest of the accused for the purpose of securing anticipatory bail which right has been given to him under section 438. The learned Senior Counsel then invited my attention to the judgment of the Constitutional Bench of the Apex Court in Gurubaksh Singh Sibbia vs. State of Punjab1. He submitted that the Constitutional Bench of the Apex Court also has laid down that the Sessions Court or the High Court has power to grant interim protection. He submitted that, in the present case, the learned Sessions Court had erred in not granting interim protection to applicants and, at the same time, directing applicants to remain present in court on the next day. Another submission was made by the learned Senior Counsel that the applicant is entitled for further protection in the event of rejection of the application for anticipatory bail and in support of the said submission he relied upon the judgment of this Court in C.P Nagia, Assistant Collector of 1 (1980) 2 SCC 566 10 Customs, Bombay v. Omprakash Aggarwal and another1. 5. The learned APP appearing on behalf of the State, on the other hand, submitted that the Sessions Court had a discretion to consider the application made by the Public Prosecutor for the purpose of securing presence of the applicant. She submitted that the said provision has been incorporated in order to ensure that the accused is available for interrogation and that he does not abscond and, therefore, by virtue of such order, his presence is secured so that after securing his presence, the court can take into consideration whether the applicant is entitled to get an order of anticipatory bail or not. She submitted that if such an order is not passed the process of investigation would be hampered and valuable time would be lost during which time the applicant may get a chance to tamper with the evidence or to remain away throughout the process of investigation. She submitted that the power to consider the application for interim protection and the power to consider the application of the prosecution securing presence of the accused are two different aspects and, therefore, they are not dependent on 1 1994 CRI.L.J. 2160 11 each other. 6 After having heard the learned Senior Counsel appearing on behalf of applicants and the learned APP appearing on behalf of the State and after taking into consideration various judgments on which reliance is placed by the learned Senior Counsel appearing on behalf of applicants and from the conspectus of cases which have been cited before this Court, I am of the view that section 438 lays down the manner and method and circumstances under which order of pre-arrest can be passed or not passed. In that sense it is a self-contained Code and a scheme in itself and these provisions, therefore, have to be read as a whole and it cannot be said that provisions of sub-sections (3) & (4) of section 438 are mutually exclusive and operate in different ways. The Apex Court in Gurubaksh Singh Sibbia (supra) has observed in paragraphs 7, 26, 19, 16, 17, 42 and 43 as under:- “(7) The facility which Section 438 affords is generally referred to as ‘anticipatory bail’, an expression which was used by the Law Commission in its 41st Report. Neither 12 the section nor its marginal note so describes it but, the expression ‘anticipatory bail’ is convenient mode of conveying that it is possible to apply for bail in anticipation of arrest. Any order of bail can, of course, be effective only from the time of arrest because, to grant bail, as stated in Wharton’s Law Lexicon is to ‘set at liberty a person arrested or imprisoned, on security being taken for his appearance’. Thus, bail is basically release from restraint, more particularly, release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial. Personal recognisance, suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself at the trial of offence or offences of which he is charged and for which he was arrested. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is a inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it is pre- arrest legal process which directs that if 13 the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. Section 46(1) of the Code of Criminal Procedure which deals with how arrests are to be made, provides that in making the arrest, the police officer or other person making the arrest “shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word of action”. A direction under Section 438 is intended to confer conditional immunity from his ‘touch’ or confinement.” “(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 he 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 contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi, [Maneka 14 Gandhi v. Union of India, (1978) 1 SCC 248] 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. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.” “19. A great deal has been said by the High Court on the fifth proposition framed by it, according to which, inter alia, the power under Section 438 should not be exercised if the investigating agency can make a reasonable claim that it can secure incriminating material from information likely to be received from the offender under section 27 of the Evidence Act. According to the High Court, it is the right and the duty of the police to investigate into offences brought to their notice and, therefore, courts should be careful not to exercise their powers in a manner which is calculated to cause interference therewith. It is true that the functions of the judiciary and the police are in a sense complementary and not overlapping. As observed by the Privy Council in King-Emperor v. Khwaja Nazir Ahmed [1943-44) 71 IA 203 : AIR 1945 PC 18 : 46 Cri LJ 413] 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 15 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 on them the duty of inquiry ..... The functions of the judiciary and the police are complementary, not overlapping, and the combination of the individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function,. . . But these remarks, may it be remembered, were made by the Privy Council while rejecting the view of the Lahore High Court that it had inherent jurisdiction under the old Section 561-A, Criminal Procedure Code, to quash all proceedings taken by the police in pursuance of two first information reports made to them. An order quashing such proceedings puts an end to the proceedings with the inevitable result that all investigation into the accusation comes to a halt. Therefore, it was held that the court cannot, in the exercise of its inherent powers, virtually direct that the police shall not investigate into the charges contained in the FIR. We are concerned here with a situation of an altogether different kind. An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the usual conditions incorporated in a direction issued under Section 438(1) are those recommended in sub-section (2)(i) and (ii) which require the applicant to cooperate with the police and to assure 16 that he shall not tamper with the witnesses during and after the investigation. While granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in the principle stated by this Court in State of U.P. v. Deoman Upadhyaya [(1961) 1 SCR,14, 26 : AIR 1960 1125 : 1960 Cri LJ 1504] to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed so have surrendered himself to the police. The broad foundation of this rule is stated to be that Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody : submission to the custody by word or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under section 167(2) of the Code is made out by the investigating agency.” “16. A close look at some of the rules in 17 the eight-point code formulated by the High Court will show how difficult it is to apply them in practice. The seventh proposition says: The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised. “17. How can the court, even if it had a third eye, assess the blatantness of corruption at the stage of anticipatory bail? And will it be correct to say that blatantness of the accusations will suffice for rejecting the bail, if the applicant’s conduct is painted in colours too lurid to be true? The eighth proposition rule framed by the High Court says : Mere general allegations of mala fides in the petition are inadequate. The court must be satisfied on materials before it that the allegations of mala fides are substantial and the accusation appears to be false and groundless. Does this rule mean, and that is the argument of the learned Additional Solicitor-General, that anticipatory bail cannot be granted unless it is alleged (and naturally, also shown, because mere allegation is never enough) that the proposed accusation are mala fide? It is understandable that if mala fides are shown, anticipatory bail should be 18 granted in the generality of cases. But it is not easy to appreciate why an application for anticipatory bail must be rejected unless the accusation is shown to be mala fide. Thus, truly, is the risk involved in framing rules by judicial construction. Discretion, therefore, ought to be permitted to remain in the domain of discretion, to be exercised objectively and open to correction by the higher courts. The safety of discretionary power lies in this twin protection which provides a safeguard against its abuse.” “42. There was some discussion before us on certain minor modalities regarding the passing of bail orders under Section 438(1). Can an order of bail be passed under the section without notice to the Public Prosecutor ? It can be. But notice should issue to the Public Prosecutor or the Government Advocate forthwith and the question of bail should be re- examined in the light of the respective contentions of the parties. The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. Should the operation of an order passed under Section 438(1) be limited in point of time? Not necessarily. The court may, if there are reasons for doing so, limit the operation of the order to short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not 19 be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time.” “43. During the last