PANKAJ JAIN versus UNION OF INDIA & ANR.
[2018] 9 S.C.R. 248, Supreme Court of India, 2018
Outcome: Disposed off
Segment: Ratio
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PANKAJ JAIN
v.
UNION OF INDIA &  ANR.
(Criminal Appeal No. 321 of 2018)
FEBRUARY 23, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Code of Criminal Procedure, 1973 – s.88 – Interpretation of
–  Power to take bond for appearance – Whether it was obligatory
for the trial Court to release the appellant by accepting the bond
u/s.88 on the ground that he was not arrested during the investigation
or has the trial Court rightly exercised its jurisdiction u/s.88 in
rejecting the application for release by accepting the bond u/s.88 –
Held: Trial Court has rightly exercised its jurisdiction u/s.88 – s.88
does not confer any right on any person, who is present in a Court
– Discretionary power given to the Court is for the purpose and
object of ensuring appearance of such person in that Court or to
any other Court into which the case may be transferred for trial –
Discretion given u/s.88 to the Court does not confer any right on a
person, who is present in the Court rather it is the power given to
the Court to facilitate his appearance, which clearly indicates that
use of word ‘may’ (in s.88) is discretionary and it is for the Court to
exercise its discretion when situation so demands – Further, the word
used u/s.88 “any person” has to be given wide meaning, which
may include persons, who are not even accused in a case and
appeared as witnesses – Interpretation of Statutes.
Code of Criminal Procedure,1973 – s.88 – Release on
acceptance of bond u/s.88 – Entitlement for – Held: s.88 of the
Cr.P.C. does not confer any right on any person, who is present in
a Court – Discretionary power given to the Court is for the purpose
and object of ensuring appearance of such person in that Court or
to any other Court into which the case may be transferred for trial
– The present is not a case where accused was a free agent whether
to appear or not – He was already issued non-bailable warrant of
arrest as well as proceeding of  ss.82 and 83 Cr.P.C. had been
initiated – In this view of the matter he was not entitled to the benefit
of  s.88.
[2018]  9  S.C.R. 248
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Bail – Request by appellant to release him on bail – Held:
Request cannot be accepted – In instant case, the Supreme Court
on two earlier occasions had granted liberty to the appellant to
make an application for bail before the trial court, however, the
appellant had not filed any application and had only insisted for
releasing him on acceptance of bond u/s.88 Cr.P.C. – Also, in facts
of this case, trial Court is to first consider the prayer of grant of
bail of the appellant – Thus, when the appellant files a bail
application, the same shall be considered forthwith by trial court
taking into consideration his claim of disability and other relevant
grounds which are urged or may be urged by the appellant before
it.
Disposing of the appeal, the Court
HELD: 1. Section 88 of the Cr.P.C. does not confer any
right on any person, who is present in a Court.  Discretion given
under Section 88 to the Court does not confer any right on a
person, who is present in the Court rather it is the power given
to the Court to facilitate his appearance, which clearly indicates
that use of word ‘may’ is discretionary and it is for the Court to
exercise its discretion when situation so demands.  It is further
relevant to note that the word used in Section 88 “any person”
has to be given wide meaning, which may include persons, who
are not even accused in a case and appeared as witnesses. [Para
23] [260-E-F]
2. The word ‘may’ used in Section 88 confers a discretion
on the Court
whether to accept a bond from an accused from a
person appearing in the Court or not. There is no infirmity in the
view taken by the Special Judge, C.B.I. as well as the High Court
in coming to the conclusion that accused was not entitled to be
released on acceptance of bond under Section 88 Cr.P.C. [Para
31] [265-A-B]
3. Appellant submitted that since the appellant has made a
request to set him on liberty by accepting the bond before the
Special Judge, C.B.I. as well may release the appellant on bail.
He further submitted that appellant is a person with 60%
disability, and that the loss which was alleged in the First
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Information Report is secured and this Court may exercise its
jurisdiction in granting the bail to the appellant. There are two
reasons due to which the request of the appellant to consider the
case of bail of the appellant in present proceeding is not accepted.
Firstly, this Court on two earlier occasions had granted liberty to
the appellant to make an application for bail before the trial court,
the appellant has not filed any application for bail before the trial
court and had insisted on releasing him on acceptance of bond
under Section 88 Cr.P.C. Secondly, in the facts of this case, trial
court is to first consider the prayer of grant of bail of the appellant.
Thus, when the appellant files a bail application, the same shall
be considered forthwith by trial court taking into consideration
his claim of disability and other relevant grounds which are urged
or may be urged by the appellant before it. [Paras 34 and 35]
[266-B-F]
Sanjay Chandra v. C.B.I. decided on 23.05.2011 in Bail
Application No. 508 of 2011; Dr. Anand Deo Singh v.
The State of Bihar & Ors. 2000 (2) Patna Law Journal
Reports 686 – approved.
Arun Sharma v. Union of India & Ors. 2016 (3) RCR
(Criminal) 883 – disapproved.
State of Uttar Pradesh v. Jogendra Singh AIR 1963
SC 1618 : [1964] SCR 197; Ramji Missar & Anr. v.
State of Bihar AIR 1963 SC 1088 : [1963] Suppl. SCR 
745; State of  Kerala & Ors. v. Kandath Distilleries
(2013) 6 SCC 573 : [2013] 4
SCR 1053; Court on Its
own Motion v. Central Bureau of Investigation 109
(2003) Delhi Law Times 494; Sanjay Chaturvedi v.
State 132 (2006) Delhi Law Times 692; Madhu Limaye
& Anr. v. Ved Murti & Ors. (1970) 3 SCC 739; Dataram
Singh v. State of Uttar Pradesh & Anr. 2018 (3) SCC 22
– referred to.
Julius v. Lord Bishop of Oxford (1874-80) All ER Rep.
43 – referred to.
“Principles of Statutory Interpretation” 14th Edition
by Justice G.P. Singh – referred to.
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Case Law Reference
[1964] SCR 197
          referred to
Para 18
[1963] Suppl. SCR 745
          referred to
Para 18
[2013] 4  SCR 1053
          referred to
Para 22
109 (2003) Delhi Law Times 494     referred to
Para 24
132 (2006) Delhi Law Times 692     referred to
Para 24
2000 (2) PLJR 686
          approved
Para 26
(1970) 3 SCC 739
          referred to
Para 27
2016 (3) RCR (Criminal) 883          disapproved
Para 28
2018 (3)  SCC 22
          referred to
Para 32
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 321 of 2018.
From the Judgment and Order dated 21.12.2017 of the High Court
of Judicature at Allahabad in WP No. 62167 of 2017.
Mukul Rohtagi, Sr. Adv., Saurabh Kirpal, Sameer Rohtagi, Ashish
Batra, Wattan Sharma, Manish Gupta, Nikhil Jain, Advs. for the
Appellants.
Maninder Singh, ASG, R. Balasubramanian, Shekhar Vyas, Aarti
Sharma, Prabhas Bajaj, Akshay Amritanshu, Arun Pathak, Mukesh
Kumar Maroria, Advs. for the Respondents.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. Leave granted.
2. This appeal has been filed against the judgment and order of
Allahabad High Court dated 21.12.2017 dismissing the Writ Petition
No. 62167 of 2017 filed by the appellant. The principal issue, which has
arisen for interpretation of this Court, is the content and meaning of
Section 88 of the Code of Criminal Procedure, 1973 (hereinafter referred
to as “Cr.P.C.”).  Before we come to the impugned judgment of the
High Court, it is necessary to
note a series of litigations initiated at the
instance of the appellant in different courts, arising out of criminal
proceeding lodged against him.
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3. A First Information Report under Sections 120-B, 409, 420,
466, 467, 469 and 471 of Indian Penal Code and under Sections 13(2)
and 13(1)(d) of the Prevention of Corruption Act, 1988 was lodged against
one Yadav Singh, the then Chief Engineer of Noida, Greater Noida and
the Yamuna Expressway Authorities and a charge sheet dated 15.03.2016
being Charge Sheet No.02/2016 was submitted in the Court of Special
Judge, C.B.I. against several accused including Yadav Singh and the
appellant Pankaj Jain.  The trial court took cognizance by order dated
29.03.2016 summoning accused for 29.04.2016 for appearance.  The
appellant filed an application under Section 482 Cr.P.C. in the Allahabad
High Court being Application No. 31090 of 2016, praying for quashing
the entire criminal proceeding of Special Case No. 10 of 2016 as well as
summoning order dated 29.03.2016.  The application was finally disposed
off by the High Court vide order dated 17.10.2016 with a direction that
if the applicant appears and surrenders before the Court below within
two weeks and applies for bail, then his bail application shall be considered
and decided.   The appellant filed an Special Leave Petition (Crl.) No.
10191/2016 against the judgment of the High Court dated 17.10.2016,
which was dismissed by this Court as withdrawn on 16.01.2017 with
liberty to apply for regular bail.
4. A supplementary charge sheet was filed on 31.05.2017, on the
basis of
which a Cognizance Order dated 07.06.2017 was passed by the
Special Judge, C.B.I. taking cognizance against the appellant and other
accused under Sections 120B, 420, 468, 471 of I.P.C. and Sections 13(2)
and 13(1)(d) of the Prevention of Corruption Act, 1988.  Again an
application under Section 482 Cr.P.C. being Application No. 18849 of
2017 was filed by the appellant in the High Court praying for quashing
the criminal proceeding in pursuance of supplementary charge sheet
dated 31.05.2017.  The High Court vide its order dated 06.07.2017
disposed of the application under Section 482 Cr.P.c. directing that if the
applicant appears and surrenders before the Special Judge, C.B.I. within
two weeks and applies for bail, it is expected that the same will be
disposed of expeditiously in accordance with law.  It was further directed
in the meantime for a period of two weeks, effect of non-bailable warrant
shall be kept in abeyance.  The appellant aggrieved by the order of the
High Court dated 06.07.2017 again filed an Special Leave Petition
(Criminal) No. 7749 of 2017, which was disposed of by this Court on
24.11.2017 granting further two weeks’ time to the petitioner(appellant)
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to apply for regular bail before the Special Judge, C.B.I. with a direction
to the trial court to consider the said application for bail forthwith.
5. On 27.11.2017, the case was taken up by the Special Judge,
C.B.I.  The Court noticed that appellant and one other accused was not
present.  The Court ordered for issuing non-bailable warrants and process
of Sections 82 and 83 of Cr.P.C. against the appellant.  On the same day,
noticing the order passed by this Court on 24.11.2017 in S.L.P. (Criminal)
No. 7749 of 2017, the learned Special Judge stayed the orders against
the appellant for a period of two weeks’ as per order of this Court.  The
appellant further filed Writ Petition (Criminal) No. 199 of 2017 in this
Court under Article 32 of the Constitution of India contending that the
petitioner (appellant), who was not arrested during investigation by the
C.B.I., has to simply surrender and give a bond under Section 88 of the
Code of Criminal Procedure.  A direction to that effect was sought for
by this Court.  This Court disposed of the writ petition vide its order
dated 06.12.2017 noticing the earlier order of this Court dated 24.11.2017
with the following order:-
“In view of our aforesaid orders dated 24.11.2017, we are of the
opinion that the petitioner should, in the first instance, appear before
the trial Court, which is the course of action already charted out.
It would be open to the petitioner to move an application under
Section 88 Cr.P.C. or a
bail application, as may be advised. It will
also be open to the petitioner to rely upon the judgments in support
of his contention as noted above. It is for the trial Court to go
through the matter and take a view thereupon. Insofar as this
Court is concerned, no opinion on merits is expressed.
Mr. Mukul Rohatgi, learned senior counsel, submits that the
petitioner, who is present in the Court today, shall surrender and
appear before the trial Court tomorrow, 07.12.2017. This statement
of the learned senior counsel is noted.
The writ petition stands disposed of in the aforesaid terms.”
6. After order of this Court dated 06.12.2017, the appellant
appeared before Court of Special Judge, C.B.I. and submitted an
application dated 07.12.2017.  In the application, following prayer has
been made:-
“a) That this Hon’ble Court may be pleased to forthwith take up
and dispose this application made by the Applicant Pankaj Jain,
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who is voluntarily present before this Hon’ble Court, pursuant to
the liberty granted by the Hon’ble Supreme Court vide Order
dated 6.12.2017 passed in the Writ Petition (Crl.) No. 199 of 2017
read with Order dated 24.11.2017 passed in the SLP (Crl.) No.
7749 of 2017, and to permit him to furnish such bond, as may
deemed fit, as per Section 88 of the Cr.P.C. in RC No. RC/DST/
2015/A/0004/CBI/STF/DLI dated 30.07.2015/Case No. 10A/2016
and 3/2017 without sending him to any prison;
b) Any such other or further order as this Hon’ble Court may
deem fit to grant in the facts and circumstances of the case and in
the interest of justice.”
7. The above application dated 07.12.2017 was rejected by the
Special Judge, C.B.I.  The Special Judge, C.B.I.  observed that the
word ‘may’ used in Section 88 signifies that Section 88 is not mandatory
and it is a matter of judicial discretion.  The Special Judge after noticing
the allegations of the appellant rejected the application No. 14B of 2017.
Aggrieved against the judgment dated 07.12.2017, another application
No. 101B of 2017 was filed by the appellant, which was also rejected.
The applicant filed a S.L.P. (Crl.) No. 9764 of 2017, which was disposed
of vide its order dated 15.12.2017 observing that since the impugned
order is passed by the Special Judge, CBI, it would be appropriate for
the petitioner to challenge that order by approaching the High Court.
Subsequent to the order
dated 15.12.2017, the petitioner-appellant filed
a Writ Petition No. 62167 of 2017, where the Petitioner-appellant also
sought to challenge the vires of Section 88 as well as writ for Certiorari
quashing the order dated 07.12.2017 of trial court.  In the Writ Petition,
following prayers have been made:-
(a)  Issue an appropriate writ, order or direction, declaring in the
above context, the use of word ‘may’ in Section 88 of Cr.P.C.
as unconstitutional, manifestly arbitrary, unreasonable and ultra
vires of the fundamental rights guaranteed under Article 14
and 21 of the Constitution of India or in the alternative to read
it down by expounding, deliberating and delineating its scope
in the context, to save Section 88 from unconstitutionally on
the vice of Article 14 and 21 of the Constitution of India.
(b) Issue a writ of certiorari or any other appropriate writ, order
or direction, setting aside the impugned Order/s dated
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07.12.2017 passed by the Trial Court i.e. Special Judge for
Anti-Corruption CBI cases at Ghaziabad, with consequential
relief of setting the petitioner at liberty by permitting him to
furnish his Bonds under Section 88 of Cr.P.C. to the satisfaction
of the said Trial Court in RC No. RC/DST/2015/A/0004/CBI/
STF/DLI dated 30.07.2015.
(c) Any further Order as may be in the interest of justice may
also be passed by this Hon’ble Court.”
8. The writ petition has been dismissed by Division Bench of the
High Court vide its judgment and order dated 21.12.2017, against which
judgment this appeal has been filed.
9. We have heard Shri Mukul Rohtagi, learned senior counsel
appearing for the appellant and Shri Maninder Singh, Additional Solicitor
General of India for the respondent.
10. Shri Mukul Rohtagi, learned senior counsel appearing for the
appellant submits that appellant having not been arrested during
investigation when he appeared before the Special Judge, C.B.I., it was
obligatory on the part of the Court to have accepted the bail bond under
Section 88 of the Cr.P.C. and released the appellant forthwith.  It is
submitted that the Court of Special Judge committed error in rejecting
the application under Section 88.  It is further submitted that bail application
was not filed by the appellant since all those, who appeared before the
Court were taken into custody and their bail applications were rejected.
Learned senior counsel submits that although Section 88
uses the word
‘may’ but the word ‘may’ has to be read as shall causing an obligation
on the Court to release on bond,  those, who appeared on their own
volition in the Court.  He further submits that the High Court committed
error in observing that petitioner has concealed material facts from this
Court when he had filed S.L.P. (Criminal) No. 7749 of 2017.  It is submitted
that all facts were mentioned in S.L.P. (Criminal) No. 7749 of 2017 and
observation of the High Court that any fact was concealed is incorrect.
11. Shri Maninder Singh, learned Additional Solicitor General of
India for the respondent refuting the submission of the appellant contended
that Section 88 Cr.P.C. has been rightly interpreted by the High Court.
It is submitted that against the appellant not only summons but non-
bailable warrant and proceedings under Sections 82 and 83 Cr.P.C. were
also initiated by the Special Judge.  Hence, he was not entitled for
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indulgence of being released on submission of bond under Section 88
Cr.P.C.  He further submits that the Court has discretionary power under
Section 88 to release a person on accepting bond, which cannot be claimed
as a matter of right by the accused, who has already been summoned
and against whom non-bailable warrant has been issued.  It is further
submitted that although the petitioner-appellant has filed various
applications under Section 482 Cr.P.C. as well as Special Leave Petitions
before this Court, but has so far not filed any bail application before the
Special Judge, C.B.I.  He submits that although liberty was taken by the
appellant from this Court on 16.01.2017 when SLP (Crl.) No. 10190 of
2017 was dismissed as well as on 24.11.2017 when SLP (Crl.) No. 7749
of 2017 was disposed off to apply for regular bail before the Court but
inspite of taking such liberty, no application for bail was filed by the
appellant.
12. We have considered the submissions of the learned senior
counsel for the parties and perused the records.
13. The main issue which needs to be answered in the present
appeal is as to whether it was obligatory for the Court to release the
appellant by accepting the bond under Section 88 Cr.P.C. on the ground
that he was not arrested during investigation or the Court has rightly
exercised its jurisdiction under Section 88 in rejecting the application
filed by the appellant praying for release by
accepting the bond under
Section 88 Cr.P.C.
14. Section 88 Cr.P.C. is a provision which is contained in Chapter
VI “Processes to Compel Appearance” of the Code of Criminal
Procedure, 1973.  Chapter VI is divided in four Sections – A.-Summons;
B.-Warrant of arrest; C.-Proclamation and Attachment and D.-Other
rules regarding processes. Section 88 provides as follows:-
88. Power to take bond for appearance. -When any person
for whose appearance or arrest the officer presiding in any Court
is empowered to issue a summons or warrant, is present in such
Court, such officer may require such person to execute a bond,
with or without sureties, for his appearance in such Court, or any
other Court to which the case may be transferred for trial.
15. We need to first consider as to what was the import of the
words ‘may’ used in Section 88.
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16. Justice G.P. Singh in “Principles of Statutory Interpretation”,
14th Edition, while considering the enabling words ‘may’ explained the
following principles of interpretation:-
“(K) Enabling words, e.g., ‘may’, ‘it shall be lawful’, ‘shall
have power’.  Power Coupled with duty
Ordinarily, the words ‘May’ and ‘It shall be lawful’ are not words
of compulsion.  They are enabling words and they only confer
capacity, power or authority and imply discretion.  “They are both
used in a statute to indicate that something may be done which
prior to it could not be done”.  The use of words ‘Shall have
power’ also connotes the same idea.”
17. Although, ordinary use of word ‘may’ imply discretion but
when the word ‘may’ is coupled with duty on an authority or Court, it
has been given meaning of shall that is an obligation on an authority or
Court.  Whether use of the word ‘may’ is coupled with duty is a question,
which needs to be answered from the statutory scheme of a particular
statute.  The Principles of Interpretation have been laid down by Lord
Cairns in Julius Vs. Lord Bishop of Oxford, (1874-80) All ER Rep.
43 where Lord Cairns enunciated Principles of Statutory Interpretation
in the following words:-
“There may be something in the nature of the thing empowered
to be done, something in the object for which it is to be done,
something in the conditions under which it is to be done, something
in the title of the person or persons for whose benefit the power
is
to be exercised, which may couple the power with a duty and
make it the duty of the person in whom the power is reposed to
exercise the power when called upon to do so.
Where a power is deposited with a public officer for the purpose
of being used for the benefit of persons specifically pointed out
with regard to whom a definition is supplied by the Legislature of
the conditions upon which they are entitled to call for its exercise,
that power ought to be exercised and the Court will require it to
be exercised.
The enabling words are construed as compulsory whenever the
object of the power is to effectuate a legal right”
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18. Learned senior counsel for the appellant has referred to
judgments of this Court in the case of State of Uttar Pradesh Vs.
Jogendra Singh, AIR 1963 SC 1618 and Ramji Missar & Anr. Vs.
State of Bihar, AIR 1963 SC 1088.  In State of Uttar Pradesh Vs.
Jogendra Singh (supra), this Court had occasion to consider the use
of word ‘may’ in Rule 4(2) of the Uttar Pradesh Disciplinary Proceedings
(Administrative Tribunal) Rules, 1947.  In the above regard, in Paragraph
8 following has been stated:-
“8. Rule 4(2) deals with the class of gazetted government servants
and gives them the right to make a request to the Governor that
their cases should be referred to the Tribunal in respect of matters
specified in clauses (a) to (d) of sub-rule (1). The question for our
decision is whether like the word “may” in Rule 4(1) which confers
the discretion on the Governor, the word “may” in sub-rule (2)
confers the discretion on him, or does the word “may” in sub-rule
(2) really mean “shall” or “must”? There is no doubt that the
word “may” generally does not mean “must” or “shall”. But it is
well settled that the word “may” is capable of meaning “must” or
“shall” in the light of the context. It is also clear that where a
discretion is conferred upon a public authority coupled with an
obligation, the word “may” which denotes discretion should be
construed to mean a command. Sometimes, the legislature uses
the word “may” out of deference
to the high status of the authority
on whom the power and the obligation are intended to be conferred
and imposed. In the present case, it is the context which is decisive.
The whole purpose of Rule 4(2) would be frustrated if the word
“may” in the said rule receives the same construction as in sub-
rule (1). It is because in regard to gazetted government servants
the discretion had already been given to the Governor to refer
their cases to the Tribunal that the rule making authority wanted
to make a special provision in respect of them as distinguished
from other government servants falling under Rule 4(1) and Rule
4(2) has been prescribed, otherwise Rule 4(2) would be wholly
redundant. In other words, the plain and unambiguous object of
enacting Rule 4(2) is to provide an option to the gazetted
government servants to request the Governor that their cases
should be tried by a tribunal and not otherwise. The rule-making
authority presumably thought that having regard to the status of
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the gazetted government servants, it would be legitimate to give
such an option to them. Therefore, we feel no difficulty in
accepting the view taken by the High Court that Rule 4(2) imposes
an obligation on the Governor to grant a request made by the
gazetted government servant that his case should be referred to
the Tribunal under the Rules. Such a request was admittedly made
by the respondent and has not been granted. Therefore, we are
satisfied that the High Court was right in quashing the proceedings
proposed to be taken by the appellant against the respondent
otherwise than by referring his case to the Tribunal under the
Rules.”
19. This Court held that use of the word ‘may’ in Rule 4(2) confers
an obligation and gaven the right to the government servants to make a
request to the Governor.  Thus, in the above case, the word ‘may’ was
coupled with duty, which was held to be obligatory.
20. In Ramji Missar & Anr. Vs. State of Bihar (supra), this
Court again considered Sections 11(1) and 6(2) of Probation of Offenders
Act, 1958.  In Para 16, this Court laid down following:-
“16. Though the word “may” might connote merely an enabling
or premissive power in the sense of the usual phrase “it shall be
lawful”, it is also capable of being construed as referring to a
compellable duty, particularly when it refers to a power conferred
on a court or other judicial authority. As observed in Maxwell on
Statutes:
“Statutes which authorise persons to do acts for
the benefit of
others, or, as it is sometimes said, for the public good or the
advancement of justice, have often given rise to controversy when
conferring the authority in terms simply enabling and not mandatory.
In enacting that they ‘may’, or shall, if they think fit,’ or, ‘shall
have power,’ or that ‘it shall be lawful’ for them to do such acts, a
statute appears to use the language of mere permission, but it has
been so often decided as to have become an axiom that in such
cases such expressions may have — to say the least — a
compulsory force.”……………………
21. This Court noticed that in the 1958 Act, certain tests as a
guidance have been laid down for exercise of discretion by the Court.
The Court rejected the submission that there is unfettered discretion in
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the Appellate Court in exercising power under Section 11.  The above
case was also a case where discretion given to the Court to be exercised
under certain guidelines and tests, which was a case of discretion coupled
with duty.
22. This Court in the case of State of Kerala & Ors. Vs. Kandath
Distilleries, (2013) 6 SCC 573 came to consider the use of expression
‘may’ in Kerala Abkari Act, 1902.  The Court held that the expression
conferred discretionary power on the Commissioner and power is not
coupled with duty.  Following observation has been made in paragraph
29:-
“29.Section 14 uses the expression “Commissioner may”,
“with the approval of the Government” so also Rule 4 uses
the expressions “Commissioner may”, “if he is satisfied” after
making such enquiries as he may consider necessary “licence
may be issued”. All those expressions used in Section 14 and
Rule 4 confer discretionary powers on the Commissioner as
well as the State Government, not a discretionary power
coupled with duty....”
23. Section 88 of the Cr.P.C. does not confer any right on any
person, who is present in a Court.  Discretionary power given to the
Court is for the purpose and object of ensuring appearance of such
person in that Court or to any other Court into which the case may be
transferred for trial.  Discretion given under Section 88 to the Court
does not confer any right on a person, who is present in the Court rather
it is the power
given to the Court to facilitate his appearance, which
clearly indicates that use of word ‘may’ is discretionary and it is for the
Court to exercise its discretion when situation so demands.  It is further
relevant to note that the word used in Section 88 “any person” has to be
given wide meaning, which may include persons, who are not even
accused in a case and appeared as witnesses.
24. Learned counsel for the appellant has referred to two
judgments of Delhi High Court, namely, Court on Its own Motion Vs.
Central Bureau of Investigation, 109 (2003) Delhi Law Times 494.
In the above case, certain general directions were issued by the Court in
context of Section 173 and 170 of Cr.P.C.  The said case was not a case
where issue which has fallen in the present case pertaining to Section 88
Cr.P.C. was involved.  The subsequent judgment of Delhi High Court in
Sanjay Chaturvedi Vs. State, 132 (2006) Delhi Law Times 692 was
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also a case where earlier judgment of Delhi High Court in Court on Its
own Motion Vs. Central Bureau of Investigation (supra) was followed.
The said case also does not in any manner adopted the interpretation of
Section 88 as contended by the appellant.
25. Another judgment of Delhi High Court in Bail Application No.
508 of 2011 Sanjay Chandra Vs. C.B.I. decided on 23.05.2011 supports
the submission raised by learned Additional Solicitor General that power
under Section 88 Cr.P.C., the word ‘may’ used in Section 88 Cr.P.C. is
not mandatory and is a matter of judicial discretion. Paras 20, 21 and 22
of the judgment are to the following effect:-
“20. Learned Shri Ram Jethmalani and learned Shri K.T.S. Tulsi,
Sr. Advocates appearing for accused Sanjay Chandra, learned
Shri Mukul Rohtagi, Sr. Advocate appearing for accused Vinod
Goenka, learned Shri Soli Sorabjee and learned Shri Ranjit Kumar,
Sr. Advocates appearing for accused Gautam Doshi, learned Shri
Rajiv Nayar, Sr. Advocate appearing for accused Hari Nair and
learned Shri Neeraj Kishan Kaul, Sr. Advocate appearing for
accused Surendra Pipara, at the outset, have contended that the
order of learned Special Judge dated 20th April, 2011 rejecting
the bail of the petitioners is violative of the mandate of Section 88
Cr.P.C. It is contended that admittedly the petitioners were neither
arrested during investigation nor they were produced in custody
along with the charge sheet as envisaged under Section 170
Cr.P.C.
Therefore, the trial court was supposed to release the petitioners
on bail by seeking bonds with or without sureties in view of Section
88 Cr.P.C. Thus, it is urged that on this count alone, the petitioners
are entitled to bail.
21. The interpretation sought to be given by the petitioners is
misconceived and based upon incorrect reading of Section 88
Cr.P.C., which is reproduced thus:
“88. Power to take bond for appearance.—When any
person for whose appearance or arrest the officer presiding in
any Court is empowered to issue a summons or warrant, is
present in such court, such officer may require such person to
execute a bond, with or without sureties, for his appearance in
such court, or any other court to which the case may be
transferred for trial”
PANKAJ JAIN v. UNION OF INDIA & ANR.
[ASHOK BHUSHAN, J.]
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22. On reading of the above, it is obvious that Section 88 Cr.P.C.
empowers the court to seek bond for appearance from any person
present in the court in exercise of its judicial discretion. The Section
also provides that aforesaid power is not unrestricted and it can
be exercised only against such persons for whose appearance or
arrest Bail Applications No.508/2011, 509/2011, 510/2011, 511/
2011 & 512/2011 Page 21 of 34 the court is empowered to issue
summons or warrants. The words used in the Section are “may
require such person to execute a bond” and any person present in
the court. The user of word “may” signifies that Section 88 Cr.P.C.
is not mandatory and it is a matter of judicial discretion of the
court. The word “any person” signifies that the power of the court
defined under Section 88 Cr.P.C. is not accused specific only, but
it can be exercised against other category of persons such as the
witness whose presence the court may deem necessary for the
purpose of inquiry or trial. Careful reading of Section 88 Cr.P.C.
makes it evident that it is a general provision defining the power
of the court, but it does not provide how and in what manner this
discretionary power is to be exercised. Petitioners are accused of
having committed non-bailable offences. Therefore, their case
for bail falls within Section 437 of the Code of Criminal Procedure
which is the specific provision dealing with grant of bail to an
accused in cases of non-bailable offences. Thus, on conjoint
reading of Section 88 and 437 Cr.P.C., it is obvious that Section
88 Cr.P.C. is not an independent Section and it is subject to Section
437 Cr.P.C. Therefore, I do not find merit in the contention that
order of learned Special Judge refusing bail to the petitioners is
illegal being violation of Section 88 Cr.P.C.”
26. Another judgment which is relevant in this context is judgment
of Patna High Court in Dr. Anand Deo Singh Vs. The State of Bihar
& Ors., 2000(2) Patna Law Journal Reports 686.  The Patna High
Court had occasion to consider Section 88 Cr.P.C. where in Para 18,
following has been held:-
“18. In my considered view, Section 88 of the Code is an enabling
provision, which vests a discretion in the Magistrate to exercise
power under said Section asking the person to execute a bond for
appearance only in bailable cases or in trivial cases and it cannot
be resorted to in a case of serious offences. Section 436 of the
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Code itself provides that bond may be asked for only in cases of
bailable offences.”
27. This Court had occasion to consider Section 91 of Cr.P.C.
1898, which was akin to present Section 88 of 1973 Act, in Madhu
Limaye & Anr. Vs. Ved Murti & Ors., (1970) 3 SCC 739, following
observations were made in context of Section 91:-
“…………….In fact Section 91 applies to a person who is present
in Court and is free because it speaks of his being bound over, to
appear on another day before the Court. That shows that the
person must be a free agent whether to appear or not. If the
person is already under arrest and in custody, as were the
petitioners, their appearance depended not on their own violation
but on the violation of the person who had their custody. This
section was therefore inappropriate and the ruling cited in support
of the case were wrongly decided as was held by the Special
Bench……………….”
28. Another judgment relied by the appellant is judgment of Punjab
& Haryana High Court in Arun Sharma Vs. Union of India & Ors.,
2016 (3) RCR (Criminal) 883.  In the above case, the Punjab &
Haryana High Court was considering Section 88 Cr.P.C. read with Section
65 of Prevention of Money Laundering Act.  In the above context,
following has been observed in Para 11:-
“11. On the same principles, in absence of anything inconsistent
in PMLA with section 88 of Cr.P.C., when a person voluntarily
appears before the Special Court for PMLA pursuant to issuance
of process
vide summons or warrant, and offers submission of
bonds for further appearances before the Court, any consideration
of his application for furnishing such bond, would be necessarily
governed by section 88 of the Cr.P.C. read with section 65 of
PMLA. Section 88 of the Cr.P.C. reads as follows-
“88. Power to take bond for appearance.—When any person
for whose appearance or arrest the officer presiding in any
Court is empowered to issue a summons or warrant, is present
in such Court, such officer may require such person to execute
a bond, with or without sureties, for his appearance in such
Court, or any other Court to which the case may be transferred
for trial.”
PANKAJ JAIN v. UNION OF INDIA & ANR.
[ASHOK BHUSHAN, J.]
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This Section 88 (corresponding to section 91 of Cr.P.C., 1898)
would not apply qua a person whose appearance is not on his
volition, but is brought in custody by the authorities as held by the
Constitution Bench of the Hon’ble Supreme Court in Madhu
Limaye v. Ved Murti, AIR 1971 SC 2481 wherein it was observed
that-
“18.......In fact Section 91 applies to a person who is present
in Court and is free because it speaks of his being bound over,
to appear on another day before the Court. That shows that
the person must be a free agent whether to appear or not. If
the person is already under arrest and in custody, as were the
petitioners, their appearance depended not on their own volition
but on the volition of the person who had their custody.......”
Thus, in a situation like this where the accused were not arrested
under section 19 of PMLA during investigations and were not
produced in custody for taking cognizance, section 88 of Cr.P.C.
shall apply upon appearance of the accused person on his own
volition before the Trial Court to furnish bonds for further
appearances.”
29. The present is not a case where accused was a free agent
whether to appear or not.  He was already issued non-bailable warrant
of arrest as well as proceeding of Sections 82 and 83 Cr.P.C. had been
initiated.  In this view of the matter he was not entitled to the benefit of
Section 88.
30. In the Punjab & Haryana case, the High Court has relied on
judgment of this Court in Madhu Limaye Vs. Ved Murti (supra) and
held that Section 88 shall be applicable since accused were not arrested
under Section 19 of PMLA during investigation and were not taken into
custody for taking cognizance.  What the Punjab & Haryana High Court
missed, is that this Court in the same paragraph had observed “that
shows that the person must be a free agent whether to appear or not”.
When accused was issued warrant of arrest to appear in the Court and
proceeding under Sections 82 and 83 Cr.P.C. has been initiated, he cannot
be held to be a free agent to appear or not to appear in the Court.  We
thus are of the view that the Punjab & Haryana High Court has not
correctly applied Section 88 in the aforesaid case.
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31. We thus conclude that the word ‘may’ used in Section 88
confers a discretion on the Court whether to accept a bond from an
accused from a  person appearing in the Court or not.  The both Special
Judge, C.B.I. as well as the High Court has given cogent reasons for not
exercising the power under Section 88 Cr.P.C. We do not find any infirmity
in the view taken by the Special Judge, C.B.I. as well as the High Court
in coming to the conclusion that accused was not entitled to be released
on acceptance of bond under Section 88 Cr.P.C. We thus do not find any
error in the impugned judgment of the High Court.
32. Shri Mukul Rohtagi, learned senior counsel for the appellant
has placed reliance on recent judgment of this Court dated 06.02.2018 in
Dataram Singh Vs. State of Uttar Pradesh & Anr., Criminal Appeal
No. 227 of 2018.  Learned counsel for the appellant submits that this
Court has elaborately explained principles for grant or refusal of bail.
This Court in Paras 6 and 7 made following observations:-
“6. The historical background of the provision for bail has been
elaborately and lucidly explained in a recent decision delivered in
Nikesh Tarachand Shah v. Union of India, 2017 (13) SCALE
609 going back to the days of the Magna Carta. In that decision,
reference was made to Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565 in which it is observed that it was held way
back in Nagendra v. King-Emperor, AIR 1924 Cal 476 that bail
is not to be
withheld as a punishment. Reference was also made
to Emperor v. Hutchinson, AIR 1931 All 356 wherein it was
observed that grant of bail is the rule and refusal is the exception.
The provision for bail is therefore age-old and the liberal
interpretation to the provision for bail is almost a century old, going
back to colonial days.
7. However, we should not be understood to mean that bail should
be granted in every case. The grant or refusal of bail is entirely
within the discretion of the judge hearing the matter and though
that discretion is unfettered, it must be exercised judiciously and
in a humane manner and compassionately. Also, conditions for
the grant of bail ought not to be so strict as to be incapable of
compliance, thereby making the grant of bail illusory.”
33. In the facts of the aforesaid case, the Court held that the trial
court as well as the High Court ought to have exercised the discretion in
PANKAJ JAIN v. UNION OF INDIA & ANR.
[ASHOK BHUSHAN, J.]
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granting the bail to the appellant.  This Court in above circumstances,
granted the bail to the appellant of that case. There cannot be any dispute
to the proposition as laid down by this Court with regard to grant or
refusal of the bail, which are well settled.  The discretion to grant bail
has to be exercised judiciously and in a humane manner and
compassionately as has been laid down by this Court in the above case.
34. Shri Mukul Rohtagi, learned senior counsel appearing for the
appellant submits that since the appellant has made a request to set him
on liberty by accepting the bond before the Special Judge, C.B.I. as well
may release the appellant on bail.  He further submits that appellant is a
person with 60% disability.  He further submits that the loss which was
alleged in the First Information Report is secured and this Court may
exercise its jurisdiction in granting the bail to the appellant.
35. There are two reasons due to which we are unable to accept
the request of the appellant to consider the case of bail of the appellant
in present proceeding. Firstly, this Court on two earlier occasions had
granted liberty to the appellant to make an application for bail before the
trial court, the appellant has not filed any application for bail before the
trial court and had insisted on releasing him on acceptance of bond under
Section 88 Cr.P.C. Secondly, in the facts of this case, trial court is to first
consider the prayer of grant of bail of the appellant. We, thus, are of the
view that as and when the appellant files a bail application, the same
shall be considered forthwith by trial court taking into consideration his
claim of disability and other relevant grounds which are urged or may be
urged by the appellant before it.
36. With these observations, the appeal is disposed of.
Ankit Gyan
                             Appeal disposed of.