Siddharam Satlingappa
Mhetre Vs State of Maharashtra and Others
JUDGMENT
Dalveer Bhandari, J.
1.
Leave
granted.
2.
This
appeal involves issues of great public importance pertaining to the importance
of individual's personal liberty and the society's interest.
3.
The
society has a vital interest in grant or refusal of bail because every criminal
offence is the offence against the State. The order granting or refusing bail
must reflect perfect balance between the conflicting interests, namely,
sanctity of individual liberty and the interest of the society. The law of
bails dovetails two conflicting interests namely, on the one hand, the requirements
of shielding the society from the hazards of those committing crimes and
potentiality of repeating the same crime while on bail and on the other hand
absolute adherence of the fundamental principle of criminal jurisprudence regarding
presumption of innocence of an accused until he is found guilty and the
sanctity of individual liberty.
4.
Brief
facts which are necessary to dispose of this appeal are recapitulated as under:
The appellant, who belongs to the Indian National Congress party (for short
`Congress party') is the alleged accused in this case. The case of the
prosecution, as disclosed in the First Information Report (for short `FIR'), is
that Sidramappa Patil was contesting election of the State assembly on behalf
of the Bhartiya Janata Party (for short `BJP'). In the FIR, it is incorporated
that Baburao Patil, Prakash Patil, Mahadev Patil, Mallikarjun Patil, Apparao
Patil, Yeshwant Patil were supporters of the Congress and so also the
supporters of the appellant Siddharam Mhetre and opposed to the BJP candidate.
5.
On
26.9.2009, around 6.00 p.m. in the evening, Sidramappa Patil of BJP came to the
village to meet his party workers. At that juncture, Shrimant Ishwarappa Kore, Bhimashankar
Ishwarappa Kore, Kallapa Gaddi, Sangappa Gaddi, Gafur Patil, Layappa Gaddi,
Mahadev Kore, Suresh Gaddi, Suresh Zhalaki, Ankalgi, Sarpanch of village
Shivmurti Vijapure met Sidramappa Patil and thereafter went to worship and pray
at Layavva Devi's temple. After worshipping the Goddess when they came out to
the assembly hall of the temple, these aforementioned political opponents
namely, Baburao Patil,Prakash Patil, Gurunath Patil, Shrishail Patil, Mahadev
Patil,Mallikarjun Patil, Annarao @ Pintu Patil, Hanumant Patil,Tammarao
Bassappa Patil, Apparao Patil, Mallaya Swami, Sidhappa Patil, Shankar Mhetre,
Usman Sheikh, Jagdev Patil, Om siddha Pujari, Panchappa Patil, Mahesh Hattargi,
SiddhappaBirajdar, Santosh Arwat, Sangayya Swami, Anandappa Birajdar, Sharanappa
Birajdar, Shailesh Chougule, Ravi Patil, AmrutlingKoshti, Ramesh Patil and
Chandrakant Hattargi suddenly came rushing in their direction and loudly
shouted, "why have youcome to our village? Have you come here to oppose
our Mhetre Saheb? They asked them to go away and shouted Mhetre SahebKi
Jai."
6.
Baburao
Patil and Prakash Patil from the aforementioned group fired from their pistols
in order to kill Sidramappa Patil and the other workers of the BJP. Bhima
Shankar Kore was hitby the bullet on his head and died on the spot. Sangappa
Gaddi,Shivmurti Vjapure, Jagdev Patil, Layappa Patil, Tammaro Patilwere also
assaulted. It is further mentioned in the FIR thatabout eight days ago, the
appellant Siddharam Mhetre and his brother Shankar Mhetre had gone to the
village and talked to the above mentioned party workers and told them that,
"if anybody says anything to you, then you tell me. I will send my men
with in five minutes. You beat anybody. Do whatever."
7.
According
to the prosecution, the appellant along with his brother instigated their party
workers which led to killing ofBhima Shanker Kora. It may be relevant to
mention that the alleged incident took place after eight days of the alleged
incident of instigation.
8.
The
law relating to bail is contained in sections 436 to 450of chapter XXXIII of
the Code of Criminal Procedure, 1973. 5Section 436 deals with situation, in
what kind of cases bail should be granted. Section 436 deals with the situation
when bail may be granted in case of a bailable offence. Section 439deals with
the special powers of the High Court or the Court of Sessions regarding grant
of bail. Under sections 437 and 439bail is granted when the accused or the
detenu is in jail or under detention.
9.
The
provision of anticipatory bail was introduced for the first time in the Code of
Criminal Procedure in 1973.
10.
Section
438 of the Code of Criminal Procedure, 1973 reads as under: "438.
Direction for grant of bail to person apprehending arrest.(1) Where any person
has reason to believe that he may be arrested on 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, namely:
i.
the
nature and gravity of the accusation;
ii.
the
antecedents of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a Court in respect of any cognizable
offence;
iii.
the
possibility of the applicant to flee from justice; and 6
iv.
where
the accusation has been made with the object of injuring or humiliating the
applicant by having him so arrested 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. (1-A) 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 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. (1-B) 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 considers such
presence necessary in the interest of justice. (2) When the High Court or the
Court of Session makes a direction under subsection (1), it may include such
conditions in such directions in the light of the facts of the particular case,
as it may thinks fit, including (i) a condition that the person shall make himself
available for interrogation by a police officer as and when required; 7 (ii) a
condition that the person shall not, directly or indirectly,make any inducement,
threat or promise to any person acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the Court or to any police officer; (iii)
a condition that the person shall not leave India without the previous
permission of the Court; (iv) such other condition as may be imposed under
sub-section (3) of section 437, as if the bail were granted under that section.
(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 cognizance 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)."Why was the provision of anticipatory bail
introduced? Historical perspective
11.
The
Code of Criminal Procedure, 1898 did not contain any specific provision of
anticipatory bail. Under the old Code, there was a sharp difference of opinion
amongst the various High Courts on the question as to whether the courts had an
inherent power to pass an order of bail in anticipation of arrest, the preponderance
of view being that it did not have such power.
12.
The
Law Commission of India, in its 41st Report dated September 24, 1969 pointed
out the necessity of introducing a provision in the Code of Criminal Procedure
enabling the High Court and the Court of Sessions to grant "anticipatory
bail". It observed in para 39.9 of its report (Volume I) and the same is
setout as under: "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 Law commission
recommended acceptance of the suggestion.
13.
The
Law Commission in para 31 of its 48th Report (July,1972) made the following
comments on the aforesaid clause: 9 "The Bill introduces a provision for
the grant of anticipatory bail. This is substantially in accordance with the
recommendation made by the previous Commission. We agree that this would be a
useful addition, though we must add that it is in very exceptional cases that
such a power should be exercised. We are further of the view that in order to
ensure that the provision is not put to abuse at the instance of unscrupulous
petitioners, the final order should be made only after notice to the Public
Prosecutor. The initial order should only be an interim one. Further, the
relevant section should make it clear that the direction can be issued only for
reasons to be recorded, and if the court is satisfied that such a direction is
necessary in the interests of justice. It will also be convenient to provide
that notice of the interim order as well as of the final orders will be given
to the Superintendent of Police forthwith."
14.
Police
custody is an inevitable concomitant of arrest fo rnon bailable offences. The
concept of anticipatory bail is that a person who apprehends his arrest in a
non-bailable case canapply for grant of bail to the Court of Sessions or to the
High Court before the arrest.Scope and ambit of Section 438 Cr.P.C.
15.
It
is apparent from the Statement of Objects and Reasonsfor introducing section
438 in the Code of Criminal Procedure,1973 that it was felt imperative to
evolve a device by which an alleged accused is not compelled to face ignominy
and disgrace at the instance of influential people who try to implicate the irrivals
in false cases.
16.
The
Code of Criminal Procedure, 1898 did not contain any specific provision
corresponding to the present section 438Cr.P.C. The only two clear provisions
of law by which bail could be granted were sections 437 and 439 of the Code.
Section 438was incorporated in the Code of Criminal Procedure, 1973 for the first
time.
17.
It
is clear from the Statement of Objects and Reasons that the purpose of
incorporating Section 438 in the Cr.P.C. was to recognize the importance of
personal liberty and freedom in a free and democratic country. When we
carefully analyze this section, the wisdom of the legislature becomes quite
evident and clear that the legislature was keen to ensure respect for the personal
liberty and also pressed in service the age-old principle that an individual is
presumed to be innocent till he is found guilty by the court.
18.
The
High Court in the impugned judgment has declined to grant anticipatory bail to
the appellant and aggrieved by the said order, the appellant has approached
this Court by filing this appeal.
19.
Mr.
Shanti Bhushan, learned senior counsel appearing for the appellant submitted
that the High Court has gravely erred in declining the anticipatory bail to the
appellant. He submitted that section 438 Cr.P.C. was incorporated because
sometime influential people 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. He pointed out that in recent times, with the accentuation
of political rivalry, this tendency is showing signs of steady increase.
20.
Mr.
Bhushan submitted that the appellant has been implicated in a false case and
apart from that he has already joined the investigation and he is not likely to
abscond, or otherwise misuse the liberty while on bail, therefore, there was no
justification to decline anticipatory bail to the appellant.
21.
Mr.
Bhushan also submitted that the FIR in this case refers to an incident which
had taken place on the instigation of the appellant about eight days ago. According
to him, proper analysis of the averments in the FIR leads to irresistible conclusion
that the entire prosecution story seems to be a cock and bull story and no
reliance can be placed on such a concocted version.
22.
Mr.
Bhushan contended that the personal liberty is the most important fundamental right
guaranteed by the Constitution. He also submitted that it is the fundamental principle
of criminal jurisprudence that every individual is presumed to be innocent till
he or she is found guilty. He further submitted that on proper analysis of
section 438 Cr.P.C. the legislative wisdom becomes quite evident that the
legislature wanted to preserve and protect personal liberty and give impetus to
the age-old principle that every person is presumed to be innocent till he is
found guilty by the court.
23.
Mr.
Bhushan also submitted that an order of anticipatory bail does not in any way,
directly or indirectly, take away from the police their power and right to
fully investigate into charges made against the appellant. He further submitted
that when the case is under investigation, the usual anxiety of the
investigating agency is to ensure that the alleged accused should fully cooperate
with them and should be available as and when they require him. In the instant
case, when the appellant has already joined the investigation and is fully
cooperating with the investigating agency then it is difficult to comprehend
why the respondent is insistent for custodial interrogation of the appellant?
According to the appellant, in the instant case, the investigating agency
should not have a slightest doubt that the appellant would not be available to
the investigating agency for further investigation particularly when he has
already joined investigation and is fully cooperating with the investigating agency.
24.
Mr.
Bhushan also submitted that according to the General Clauses Act, 1897 the
court which grants the bail also has the power to cancel it. The grant of bail
is an interim order. The court can always review its decision according to the
subsequent facts, circumstances and new material. Mr. Bhushan also submitted
that the exercise of grant, refusal and cancellation of bail can be undertaken
by the court either at the instance of the accused or a public prosecutor or a
complainant on finding fresh material and new circumstances at any point of
time. Even the appellant's reluctance in not fully cooperating with the investigation
could be a ground for cancellation of bail.
25.
Mr.
Bhushan submitted that a plain reading of the section438 Cr.P.C. clearly
reveals that the legislature has not placed any fetters on the court. In other
words, the legislature has not circumscribed court's discretion in any manner
while granting anticipatory bail, therefore, the court should not limit the
order only for a specified period till the charge-sheet is filed and thereafter
compel the accused to surrender and ask for regular bail under section 439
Cr.P.C., meaning thereby the legislature has not envisaged that the life of the
anticipatory bail would onlylast till the charge-sheet is filed. Mr. Bhushan
submitted that when no embargo has been placed by the legislature then this court
in some of its orders was not justified in placing thisembargo.
26.
Mr.
Bhushan submitted that the discretion which has been granted by the legislature
cannot and should not be curtailed by interpreting the provisions contrary to
the legislative intention. The courts' discretion in grant or refusal of the
anticipatory bail cannot be diluted by interpreting the provisions against the legislative
intention. He submitted that the life is never static and every situation has
to be assessed and evaluated in the context of emerging concerns as and when it
arises. It is 15difficult to visualize or anticipate all kinds of problems and situations
which may arise in future. Law has been settled by an authoritative
pronouncement of the Supreme Court
27.
The
Constitution Bench of this Court in Gurbaksh Singh Sibbia and Others v. State
of Punjab (1980) 2 SCC 565 had an occasion to comprehensively deal with the
scope and ambit of the concept of anticipatory bail. Section 438 Cr.P.C. is an extraordinary
provision where the accused who apprehends his/her arrest on accusation of
having committed a non-bailable offence can be granted bail in anticipation of
arrest. The Constitution Bench's relevant observations are set out as under: "........A
wise exercise of judicial power inevitably takes care of the evil consequences
which are likely to flow out of its intemperate use. Every kind of judicial discretion,
whatever may be the nature of the matter in regard to which it is required to
be exercised, has to be used with due care and caution. In fact, awareness of
the context in which the discretion is required to be exercised and of the
reasonably foreseeable consequences of its use, is the hall mark of a prudent
exercise of judicial discretion. One ought not to make a bugbear of the power
to grant anticipatory bail".
28.
Mr.
Bhushan referred to a Constitution Bench judgment in Sibbia's case (supra) to
strengthen his argument that no such embargo has been placed by the said
judgment of the Constitution Bench. He placed heavy reliance on para 15 of Sibbia's
case (supra), which reads as under: " Judges have to decide cases as they
come before them, mindful of the need to keep passions and prejudices out of
their decisions. And it will be strange if, by employing judicial artifices and
techniques, we cut down the discretion so wisely conferred upon the courts, by
devising a formula which will confine the power to grant anticipatory bail
within a strait-jacket. While laying down cast-iron rules in a matter like granting
anticipatory bail, as the High Court has done, it is apt to be overlooked that
even judges can have but an imperfect awareness of the needs of new situations.
Life is never static and every situation has to be assessed in the context of
emerging concerns as and when it arises. Therefore, even if we were to frame a
`Code for the grant of anticipatory bail', which really is the business of the
legislature, it can at best furnish broad guide-lines and cannot compel blind
adherence. In which case to grant bail and in which to refuse it is, in the
very nature of things, a matter of discretion. But apart from the fact that the
question is inherently of a kind which calls for the use of discretion from case
to case, the legislature has, in terms express, relegated the decision of that
question to the discretion of the court, by providing that it may grant bail
"if it thinks fit". The concern of the courts generally is to
preserve their discretion without meaning to abuse it. It will be strange if we
exhibit concern to stultify the discretion conferred upon the courts by
law."
29.
Mr.
Bhushan submitted that the Constitution Bench in Sibbia's case (supra) also
mentioned that "we see no valid reason for rewriting Section 438 with a
view, not to expanding 17the scope and ambit of the discretion conferred on the
High Court and the Court of Session but, for the purpose of limiting it. Accordingly,
we are unable to endorse the view of the High Court that anticipatory bail
cannot be granted in respect of offences like criminal breach of trust for the
mere reason that the punishment provided there for is imprisonment for life. Circumstances
may broadly justify the grant of bail in such cases too, though of course, the
court is free to refuse anticipatory bail in any case if there is material
before it justifying such refusal".
30.
Mr.
Bhushan submitted that the court's orders in some cases that anticipatory bail
is granted till the charge-sheet is filed and thereafter the accused has to
surrender and seek bail application under section 439 Cr.P.C. is neither
envisaged by the provisions of the Act nor is in consonance with the law
declared by a Constitution Bench in Sibbia's case (supra) nor it is
inconformity with the fundamental principles of criminal jurisprudence that
accused is considered to be innocent till he is found guilty nor in consonance
with the provisions of the Constitution where individual's liberty in a
democratic society is considered sacrosanct.
31.
Mr.
Mahesh Jethmalani, learned senior counsel appearing for respondent no. 2,
submitted that looking to the facts and circumstances of this case, the High
Court was justified in declining the anticipatory bail to the appellant. He
submitted that the anticipatory bail ought to be granted in rarest of rare cases
where the nature of offence is not very serious. He placed reliance on the case
of Pokar Ram v. State of Rajasthan and Others (1985) 2 SCC 597 and submitted
that in murder cases custodial interrogation is of paramount importance
particularly when no eye witness account is available.
32.
Mr.
Jethmalani fairly submitted that the practice of passing orders of anticipatory
bail operative for a few days and directing the accused to surrender before the
Magistrate and apply for regular bail are contrary to the law laid down in
Sibbia's case(supra). The decisions of this Court in Salauddin Abdulsamad Shaikh
v. State of Maharashtra (1996) 1 SCC 667, K. L. Verma v. State and Another
(1998) 9 SCC 348, Adri Dharan Das v. State of West Bengal (2005) 4 SCC 303 and
Sunita Devi v. State of Bihar and Another (2005) 1 SCC 608 are in conflict with
the above decision of the Constitution Bench in Sibbia's case (supra). He
submitted that all these orders which 19are contrary to the clear legislative
intention of law laid down in Sibbia's case (supra) are per incuriam. He also
submitted that in case the conflict between the two views is irreconcilable,
the court is bound to follow the judgment of the Constitution Benchover the
subsequent decisions of Benches of lesser strength.
33.
He
placed reliance on N. Meera Rani v. Government of Tamil Nadu and Another (1989)
4 SCC 418 wherein it was perceived that there was a clear conflict between the
judgment of the Constitution Bench and subsequent decisions of Benches oflesser
strength. The Court ruled that the dictum in the judgment of the Constitution
Bench has to be preferred over the subsequent decisions of the Bench of lesser
strength. The Court observed thus: ".......All subsequent decisions which
are cited have to be read in the light of the Constitution Bench decision since
they are decisions by Benches comprising of lesser number of 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 (1964)
4 SCR 921"
34.
He
placed reliance on another judgment of this Court in Vijayalaxmi Cashew Company
and Others v. Dy. 20Commercial Tax Officer and Another (1996) 1 SCC 468. This Court
held as under: "........It is not possible to uphold the contention that perception
of the Supreme Court, as will appear from the later judgments, has changed in
this regard. A judgment of a Five Judge Bench, which has not been doubted by
any later judgment of the Supreme Court cannot be treated as overruled by
implication."
35.
He
also placed reliance on Union of India and Others v. K. S. Subramanian (1976) 3
SCC 677 and State of U.P. v.Ram Chandra Trivedi (1976) 4 SCC 52 and submitted
that incase of conflict, the High Court has to prefer the decision of a larger
Bench to that of a smaller Bench.
36.
Mr.
Jethmalani submitted that not only the decision in Sibbia's case (supra) must
be followed on account of the larger strength of the Bench that delivered it
but the subsequent decisions must be held to be per incuriam and hence not
binding since they have not taken into account the ratio of the judgment of the
Constitution Bench.
37.
He
further submitted that as per the doctrine of `perincuriam', any judgment which
has been passed in ignorance of or without considering a statutory provision or
a binding precedent is not good law and the same ought to be ignored. A 21perusal
of the judgments in Salauddin Abdulsamad Shaikh v.State of Maharashtra, K. L.
Verma v. State and Another,Adri Dharan Das v. State of West Bengal and Sunita
Devi v.State of Bihar and Another (supra) indicates that none of these
judgments have considered para 42 of Sibbia's case(supra) in proper
perspective. According to Mr. Jethmalani, all subsequent decisions which have
been cited above have to be read in the light of the Constitution Bench's
decision in Sibbia'scase (supra) since they are decisions of Benches comprised
of lesser number of judges. According to him, none of these subsequent decisions
could be intended taking a view contrary to that of the Constitution Bench in
Sibbia's case (supra).
38.
Thus,
the law laid down in para by the Constitution Bench that the normal rule is not
to limit operation of the order of anticipatory bail, was not taken into
account by the courts passing the subsequent judgments. The observations made
by the courts in the subsequent judgments have been made in ignorance of and
without considering the law laid down in para42 which was binding on them. In
these circumstances, the observations made in the subsequent judgments to the
effect that anticipatory bail should be for a limited period of time, must be
construed to be per incuriam and the decision of the Constitution Bench
preferred.
39.
He
further submitted that the said issue came up for consideration before the Madras
High Court reported in Palanikumar and Another v. State 2007 (4) CTC 1 where in
after discussing all the judgments of this court on the issue, the court held
that the subsequent judgments were in conflict with the decision of the
Constitution Bench in Sibbia's case (supra)and in accordance with the law of
precedents, the judgment of the Constitution Bench is biding on all courts and
the ratio of that judgment has to be applicable for all judgments decided by the
Benches of same or smaller combinations. In the said judgment of Sibbia's case
(supra) it was directed that the anticipatory bail should not be limited in
period of time.
40.
We
have heard the learned counsel for the parties at great length and perused the
written submissions filed by the learned counsel for the parties. Relevance and
importance of personal liberty
41.
All
human beings are born with some unalienable rights like life, liberty and
pursuit of happiness. The importance of these natural rights can be found in
the fact that these are fundamental for their proper existence and no other
right can been joyed without the presence of right to life and liberty.
42.
Life
bereft of liberty would be without honour and dignity and it would lose all
significance and meaning and the life itself would not be worth living. That is
why "liberty" is called the very quintessence of a civilized
existence.
43.
Origin
of "liberty"' can be traced in the ancient Greek civilization. The
Greeks distinguished between the liberty of the group and the liberty of the
individual. In 431 B.C., an Athenian statesman described that the concept of
liberty was the outcome of two notions, firstly, protection of group from
attack and secondly, the ambition of the group to realize itself as fully as possible
through the self-realization of the individual by way of human reason. Greeks
assigned the duty of protecting their liberties to the State. According to
Aristotle, as the state was a means to fulfill certain fundamental needs of
human nature and was a means for development of individuals' personality in association
of fellow citizens so it was natural and necessary to man. Plato found his
"republic" as the best source for the achievement of the
self-realization of the people.
44.
Chambers'
Twentieth Century Dictionary defines "liberty" as "Freedom to do
as one pleases, the unrestrained employment of natural rights, power of free
chance, privileges, exemption, relaxation of restraint, the bounds within which
certain privileges are enjoyed, freedom of speech and action beyond ordinary
civility".
45.
It
is very difficult to define the "liberty". It has many facets and
meanings. The philosophers and moralists have praised freedom and liberty but
this term is difficult to define because it does not resist any interpretation.
The term "liberty" may be defined as the affirmation by an individual
or group of his or its own essence. It needs the presence of three factors,
firstly, harmonious balance of personality, secondly, the absence of restraint
upon the exercise of that affirmation and thirdly, organization of
opportunities for the exercise of a continuous initiative.
46.
"Liberty"
may be defined as a power of acting according to the determinations of the
will. According to Harold Laski, liberty was essentially an absence of
restraints and John Stuard Mill 25viewed that "all restraint", qua
restraint is an evil". In the words of Jonathon Edwards, the meaning of
"liberty" and freedom is: "Power, opportunity or advantage that
any one has to do as he pleases, or, in other words, his being free from
hindrance or impediment in the way of doing, or conducting in any respect, as
he wills."
47.
It
can be found that "liberty" generally means the prevention of
restraints and providing such opportunities, the denial of which would result
in frustration and ultimately disorder. Restraints on man's liberty are laid
down by power used through absolute discretion, which when used in this manner
brings an end to "liberty" and freedom is lost. At the same time
"liberty" without restraints would mean liberty won by one and lost
by another. So "liberty" means doing of anything one desires but
subject to the desire of others.
48.
As
John E.E.D. in his monograph Action on "Essays on Freedom and Power"
wrote that Liberty is one of the most essential requirements of the modern man.
It is said to be the delicate fruit of a mature civilization.
49.
A
distinguished former Attorney General for India, M.C.Setalvad in his treatise
"War and Civil Liberties" observed that the French Convention
stipulates common happiness as the end of the society, whereas Bentham
postulates the greatest happiness of the greatest number as the end of law.
Article 19 of the Indian Constitution averts to freedom and it enumerates certain
rights regarding individual freedom. These rights are vital and most important
freedoms which lie at the very root of liberty.
50.
He
further observed that the concept of civil liberty is essentially rooted in the
philosophy of individualism. According to this doctrine, the highest
development of the individual and the enrichment of his personality are the
true function and end of the state. It is only when the individual has reached
the highest state of perfection and evolved what is best in him that society
and the state can reach their goal of perfection. In brief according to this
doctrine, the state exists mainly, if not solely, for the purpose of affording
the individual freedom and assistance for the attainment of his growth and
perfection. The state exists for the benefit of the individual.
51.
Mr.
Setalvad in the same treatise further observed that it is also true that the
individual cannot attain the highest in him unless he is in possession of
certain essential liberties which leave him free as it were to breathe and
expand. According to Justice Holmes, these liberties are the indispensable
conditions of a free society. The justification of the existence of such a
state can only be the advancement of the interests of the individuals who compose
it and who are its members. Therefore, in a properly constituted democratic
state, there cannot be a conflict to between the interests of the citizens and
those of the state. The harmony, if not the identity, of the interests of the
state and the individual, is the fundamental basis of the modern Democratic National
State. And, yet the existence of the state and all government and even all law
must mean in a measure the curtailment of the liberty of the individual. But
such a surrender and curtailment of his liberty is essential in the interests
of the citizens of the State. The individuals composing the state must, in
their own interests and in order that they may be assured the existence of
conditions in which they can, with a reasonable amount of freedom, carry on
their other activities, endow those in authority over them to make laws and
regulations and adopt measures which impose certain restrictions on the
activities of the individuals.
52.
Harold
J. Laski in his monumental work in "Liberty in the Modern State"
observed that liberty always demands a limitation on political authority. Power
as such when uncontrolled is always the natural enemy of freedom.
53.
Roscoe
Pound, an eminent and one of the greatest American Law Professors aptly
observed in his book "The Development of Constitutional Guarantee of
Liberty" that whatever, `liberty' may mean today, the liberty is
guaranteed by our bills of rights, "is a reservation to the individual of
certain fundamental reasonable expectations involved in life in civilized society
and a freedom from arbitrary and unreasonable exercise of the power and
authority of those who are designated or chosen in a politically organized
society to adjust that society to individuals."
54.
Blackstone
in "Commentaries on the Laws of England", Vol.I, p.134 aptly observed
that "Personal liberty consists in the power of locomotion, of changing
situation or moving one's person to whatsoever place one's own inclination may
direct, without imprisonment or restraint unless by due process of law".
55.
According
to Dicey, a distinguished English author of the Constitutional Law in his
treatise on Constitutional Law observed that, "Personal liberty, as
understood in England, means in substance a person's right not to be subjected
to imprisonment, arrest, or other physical coercion in any manner that does not
admit of legal justification." [Dicey on Constitutional Law, 9th Edn.,
pp.207-08]. According to him, it is the negative right of not being subjected
to any form of physical restraint or coercion that constitutes the essence of
personal liberty and not mere freedom to move to any part of the Indian territory.
In ordinary language personal liberty means liberty relating to or concerning
the person or body of the individual, and personal liberty in this sense is the
antithesis of physical restraint or coercion.
56.
Eminent
English Judge Lord Alfred Denning observed: "By personal freedom I mean
freedom of every law abiding citizen to think what he will, to say what he
will, and to go where he will on his lawful occasion without hindrance from any
person.... It must be matched, of course, with social security by which I mean
the peace and good order of the community in which we live."
57.
Eminent
former Judge of this Court, Justice H.R. Khannain a speech as published in 2
IJIL, Vol.18 (1978), p.133 observed that "liberty postulates the creation
of a climate wherein there is no suppression of the human spirits, wherein,
there is no denial of the opportunity for the full growth of human personality,
wherein head is held high and there is no servility of the human mind or
enslavement of the human body". Right to life and personal liberty under
the Constitution
58.
We
deem it appropriate to deal with the concept of personal liberty under the
Indian and other Constitutions.
59.
The
Fundamental Rights represent the basic values enriched by the people of this
country. The aim behind having elementary right of the individual such as the
Right to Life and Liberty is not fulfilled as desired by the framers of the Constitution.
It is to preserve and protect certain basic human rights against interference
by the state. The inclusion of a Chapter in Constitution is in accordance with
the trends of modern democratic thought. The object is to ensure the inviolability
of certain essential rights against political vicissitudes.
60.
The
framers of the Indian Constitution followed the American model in adopting and
incorporating the Fundamental Rights for the people of India. American
Constitution provides that no person shall be deprived of his life, liberty, or
property without due process of law. The due process clause not only protects
the property but also life and liberty, similarly Article 21of the Indian
Constitution asserts the importance of Article 21.The said Article reads as
under:"no person shall be deprived for his life or personal liberty except
according to procedure established by law" the right secured by Article 21
is available to every citizen or non-citizen, according to this article, two
rights are secured. 1. Right to life Right to personal liberty.
61.
Life
and personal liberty are the most prized possessions o fan individual. The
inner urge for freedom is a natural phenomenon of every human being. Respect
for life, liberty and property is not merely a norm or a policy of the State
but an essential requirement of any civilized society.
62.
This
court defined the term "personal liberty" immediately after the
Constitution came in force in India in the case of A. K. 32Gopalan v. The State
of Madras, AIR 1950 SC 27. The expression `personal liberty' has wider as well
narrow meaning. In the wider sense it includes not only immunity from arrest
and detention but also freedom of speech, association etc. In the narrow sense,
it means immunity from arrest and detention. The juristic conception of
`personal liberty', when used the latter sense, is that it consists freedom of
movement and locomotion.
63.
Mukherjea,
J. in the said judgment observed that `Personal Liberty' means liberty relating
to or concerning the person or body of the individual and it is, in this sense,
antithesis of physical restraint or coercion. `Personal Liberty' means a personal
right not to be subjected to imprisonment, arrest or other physical coercion in
any manner that does not admit of legal justification. This negative right
constitutes the essence of personal liberty. Patanjali Shastri, J. however,
said that whatever may be the generally accepted connotation of the expression`
personal liberty', it was used in Article 21 in a sense which excludes the
freedom dealt with in Article 19. Thus, the Court gave a narrow interpretation
to `personal liberty'. This court excluded certain varieties of rights, as
separately mentioned in 33Article 19, from the purview of `personal liberty'
guaranteed by Art. 21.
64.
In
Kharak Singh v. State of U.P. and Others AIR 1963SC 1295, Subba Rao, J. defined
`personal liberty, as a right of an individual to be free from restrictions or
encroachment on his person whether these are directly imposed or indirectly
brought about by calculated measure. The court held that `personal liberty' in
Article 21 includes all varieties of freedoms except those included in Article
19.
65.
In
Maneka Gandhi v. Union of India and Another (1978)1 SCC 248, this court
expanded the scope of the expression` personal liberty' as used in Article 21
of the Constitution of India. The court rejected the argument that the
expression` personal liberty' must be so interpreted as to avoid over aping between
Article 21 and Article 19(1). It was observed:
66.
"The
expression `personal liberty' in Article 21 is of the widest amplitude and it
covers a variety of rights which go to constitute the personal liberty of a man
and some of them have been raised to the status of distinct fundamental rights
and given additional protection under Article 19." So, the phrase
`personal liberty' is very wide and includes all possible rights which go to
constitute personal liberty, including those which are mentioned in
Article19.66. Right to life is one of the basic human right and not even the
State has the authority to violate that right. [State of A.P. v.Challa
Ramakrishna Reddy and Others (2000) 5 SCC 712].
67.
Article
21 is a declaration of deep faith and belief in human rights. In this pattern
of guarantee woven in Chapter III of this Constitution, personal liberty of man
is at root of Article 21 and each expression used in this Article enhances
human dignity and values. It lays foundation for a society where rule of law
has primary and not arbitrary or capricious exercise of power.[Kartar Singh v.
State of Punjab and Others (1994) 3 SCC569].
68.
While
examining the ambit, scope and content of the expression "personal
liberty" in the said case, it was held that the term is used in this
Article as a compendious term to include within itself all varieties of rights
which goes to make up the" personal liberties" or man other than
those dealt within several clauses of Article 19(1). While Article 19(1) deals
with particular 35species or attributes of that freedom, "personal
liberty" in Article21 takes on and comprises the residue.
69.
The
early approach to Article 21 which guarantees right to life and personal liberty
was circumscribed by literal interpretation in A.K. Gopalan (supra). But in
course of time, the scope of this application of the Article against arbitrary encroachment
by the executives has been expanded by liberal interpretation of the components
of the Article in tune with the relevant international understanding. Thus
protection against arbitrary privation of "life" no longer means mere
protection of death, or physical injury, but also an invasion of the right to "live"
with human dignity and would include all these aspects of life which would go
to make a man's life meaningful and worth living, such as his tradition,
culture and heritage. [Francis Coralie Mullin v. Administrator, Union Territory
of Delhi and Others (1981) 1 SCC 608]
70.
Article
21 has received very liberal interpretation by this court. It was held:
"The right to live with human dignity and same does not connote continued
drudging. It takes within its fold some process of civilization which makes
life worth living 36and expanded concept of life would mean the tradition,
culture, and heritage of the person concerned." [P. Rathinam/ Nagbhusan Patnaik
v. Union of India and Another (1994) 3 SCC 394.]
71.
The
object of Article 21 is to prevent encroachment upon personal liberty in any
manner. Article 21 is repository of all human rights essentially for a person
or a citizen. A fruitful and meaningful life presupposes full of dignity,
honour, health and welfare. In the modern "Welfare Philosophy", it is
for the State to ensure these essentials of life to all its citizens, and if
possible to non-citizens. While invoking the provisions of Article 21, and by referring
to the oft-quoted statement of Joseph Addision, "Betterto die ten thousand
deaths than wound my honour", the Apex court in Khedat Mazdoor Chetana
Sangath v. State of M.P. and Others (1994) 6 SCC 260 posed to itself a question
"If dignity or honour vanishes what remains of life"? This is the significance
of the Right to Life and Personal Liberty guaranteedunder the Constitution of
India in its third part.
72.
This
court in Central Inland Water Transport Corporation Ltd. and Another v. Brojo
Nath Ganguly and Another (1986) 3 SCC 156 observed that the law must respond and
be responsive to the felt and discernible compulsions of circumstances that
would be equitable, fair and justice, and unless there is anything to the
contrary in the statute, Court must take cognizance of that fact and act
accordingly.
73.
This
court remarked that an under trial prisoner should not be put in fetters while
he is being taken from prison to Court or back to prison from Court. Steps
other than putting him in fetters will have to be taken to prevent his escape.
74.
In
Prem Shankar Shukla v. Delhi Administration (1980)3 SCC 526, this court has
made following observations: "....... The Punjab Police Manual, in so far
as it puts the ordinary Indian beneath the better class breed (para 26.21A and
26.22 of Chapter XXVI) is untenable and arbitrary. Indian humans shall not be dichotomized
and the common run discriminated against regarding handcuffs. The provisions in
para 26.22 that every under-trial who is accused of a non-bailable offence
punishable with more than 3 years prison term shall be routinely handcuffed is violative
of Articles 14, 19 and 21. The nature of the accusation is not the criterion.
The clear and present danger of escape breaking out of the police control is
the determinant. And for this there must be clear material, not glib
assumption, record of reasons and judicial oversight and summary hearing and
direction by the court where the victim is produced. ... Handcuffs are not
summary punishment vicariously imposed at police level, at 38once obnoxious and
irreversible. Armed escorts, worth the salt, can overpower any unarmed undertrial
and extra guards can make up exceptional needs. In very special situations, the
application of irons is not ruled out. The same reasoning applies to (e) and
(f). Why torture the prisoner because others will demonstrate or attempt his
rescue? The plain law of under-trial custody is thus contrary to the unedifying
escort practice. (Para 31)Even in cases where, in extreme circumstances, handcuffs
have to be put on the prisoner, the escorting authority must record
contemporaneously the reason for doing so. Otherwise, under Article 21 the
procedure will be unfair and bad in law. The minions of the police
establishment must make good their security recipes by getting judicial approval.
And, once the court directs that handcuffs shall be off, no escorting authority
can overrule judicial direction. This is implicit in Article 21 which insists
upon fairness, reasonableness and justice in the very procedure which
authorities stringent deprivation of life and liberty. (Para 30)It is implicit
in Articles 14 and 19 that when there is no compulsive need to fetter a
person's limbs, it is sadistic, capricious, despotic and demoralizing to humble
a man by manacling him. Such arbitrary conduct surely slaps Article 14 on the
face. The minimal freedom of movement which even a detainee is entitled to
under Article 19 cannot be cut down cruelly by application of handcuffs or other
hoops. It will be unreasonable so to do unless the State is able to make out
that no other practical way of forbidding escape is available, the prisoner being
so dangerous and desperate and the circumstances so hostile to safekeeping.
(Para 23)Whether handcuffs or other restraint should be imposed on a prisoner
is a matter for the decision of the authority responsible for his custody. But
there is room for imposing supervisory regime over the 39 exercise of that
power. One sector of supervisory jurisdiction could appropriately lie with the
court trying the accused, and it would be desirable for the custodial authority
to inform that court of the circumstances in which, and the justification for, imposing
a restraint on the body of the accused. It should be for the court concerned to
work out the modalities of the procedure requisite for the purpose of enforcing
such control."
75.
After
dealing with the concept of life and liberty under the Indian Constitution, we
would like to have the brief survey of other countries to ascertain how life
and liberty has been protected in other countries.
UNITED KINGDOM
76.
Life
and personal liberty has been given prime importance in the United Kingdom. It
was in 1215 that the people of England revolted against King John and enforced
their rights, first time the King had acknowledged that there were certain
rights of the subject could be called Magna Carta 1215. In 1628 the petition of
rights was presented to King Charles-I which was the 1st step in the transfer
of Sovereignty from the King to Parliament. It was passed as the Bill of Rights
1689.
77.
In
the Magna Carta, it is stated "no free man shall be taken, or imprisoned
or diseased or outlawed or banished or any ways 40destroyed, nor will the King
pass upon him or commit him to prison, unless by the judgment of his peers or
the law of the land".
78.
Right
to life is the most fundamental of all human rights and any decision affecting
human right or which may put an individual's life at risk must call for the
most anxious scrutiny. See: Bugdaycay v. Secretary of State for the Home Department
(1987) 1 All ER 940. The sanctity of human life is probably the most
fundamental of the human social values. It is recognized in all civilized
societies and their legal system and by the internationally recognized
statements of human rights. See: R on the application of Pretty v. Director of
Public Prosecutions (2002) 1 All ER 1.U.S.A.
79.
The
importance of personal liberty is reflected in the Fifth Amendment to the
Constitution of U.S.A. (1791) which declares as under :"No person shall
be.....deprived of his life, liberty or property, without due process of
law." (The `due process' clause was adopted in s.1(a) of the Canadian Bill
of Rights Act, 1960. In the Canada Act, 1982, this expression has been substituted
by `the principles of fundamental justice' [s.7]. 41
80.
The
Fourteenth Amendment imposes similar limitation on the State authorities. These
two provisions are conveniently referred to as the `due process clauses'. Under
the above clauses the American Judiciary claims to declare a law as bad, if it
is not in accordance with `due process', even though the legislation may be
within the competence of the Legislature concerned. Due process is conveniently
understood means procedural regularity and fairness. (Constitutional
Interpretation by Craig R. Ducat, 8 th Edn. 2002 p.475.).WEST GERMANY
81.
Article
2(2) of the West German Constitution (1948)declares: "Everyone shall have
the right to life and physical inviolability. The freedom of the individual shall
be inviolable. These rights may be interfered with only on the basis of the
legal order."Though the freedom of life and liberty guaranteed by the
above Article may be restricted, such restriction will be valid only if it is in
conformity with the `legal order' (or `pursuant to a law, according to official
translation). Being a basic right, the freedom guaranteed by Article 2(2) is
binding on the legislative, administrative and judicial organs of the State
[Article 1(3)]. This gives the individual the rights to challenge the validity
of a law or an executive act violative the freedom of the person by a constitutional
complaint to the Federal Constitutional Court, under Article Procedural
guarantee is given by Articles103(1) and 104. Article 104(1)-2(2) provides: "(1)
The freedom of the individual may be restricted only on the basis of a formal
law and only with due regard to the forms prescribed therein.......... (2) Only
the Judge shall decide on the admissibility and continued deprivation of liberty."
82.
These
provisions correspond to Article 21 of our Constitution and the court is
empowered to set a man to liberty if it appears that he has been imprisoned
without the authority of a formal law or in contravention of the procedure
prescribedthere.JAPAN
83.
Article
XXXI of the Japanese Constitution of 1946 says : "No person shall be
deprived of life or liberty nor shall any other criminal penalty be imposed,
except according to procedure established by law."This article is similar
to Article 21 of our Constitution save that it includes other criminal
penalties, such as fine or forfeiture within its ambit. CANADA
84.
S.
1(1) of the Canadian Bill of Rights Act, 1960, adopted the` Due Process' Clause
from the American Constitution. But the difference in the Canadian set-up was
due to the fact that this Act was not a constitutional instrument to impose a
direct limitation on the Legislature but only a statute for interpretation of
Canadian status, which, again, could be excluded from the purview of the Act of
1960, in particular cases, by an express declaration made by the Canadian
Parliament itself (s.2). The result was obvious: The Canadian Supreme Court in
R. v. Curr (1972) S.C.R. 889 held that the Canadian Court would not import
`substantive reasonableness' into s.1(a), because of the un salutary experience
of substantive due process in the U.S.A.; and that as to `procedural
reasonableness', s.1(a) of the Bill of Rights Act only referred to `the legal
processes recognized by Parliament and the Courts in Canada'. The result was
that in Canada, the `due process clause' lost its utility as an instrument of
judicial review of legislation and it came to mean practically the same thing
as whatever the Legislature prescribes, much the same as `procedure established
by law' in Article 21 of the Constitution of India, as interpreted in A.K.
Gopalan (supra).BANGADESH
85.
Article
32 of the Constitution of Bangladesh, 1972 [3 SCW385] reads as under: "No
person shall be deprived of life or personal liberty save in accordance with
law."This provision is similar to Article 21 of the Indian Constitution. Consequently,
unless controlled by some other provision, it should be interpreted as in
India.
PAKISTAN
86.
Article
9 Right to life and Liberty. "Security of Person : No person shall be
deprived of life and liberty save in accordance with law."NEPAL
87.
In
the 1962 Constitution of Nepal, there is Article 11(1)which deals with right to
life and liberty which is identical with Article 21 of the Indian Constitution.
INTERNATIONAL
CHARTERS
88.
Universal
Declaration, 1948. Article 3 of the Universal Declaration says: "Everyone
has the right to life, liberty and security of person." Article 9
provides: "No one shall be subjected to arbitrary arrest, detention or
exile." Cl.10 says: "Everyone is entitled in full equality to a fair
and public hearing by an independent and impartial tribunal, in the
determination of his rights and obligations and of any criminal charge against
him." [As to its legal effect, see M. v. Organisation Belge, (1972) 45
Inter, LR 446 (447, 451, et. Sq.)]
89.
Covenant
on Civil and Political Rights Article 9(1) of the U.N. 1966, 1966 says: "Everyone
has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except
on such grounds and in accordance with such procedure as are established by
law."
90.
European
Convention on Human Rights, 1950. – This Convention contains a most elaborate
and detailed codification of the rights and safeguards for the protection of
life and personal liberty against arbitrary invasion.
91.
In
every civilized democratic country, liberty is considered to be the most
precious human right of every person. The Law Commission of India in its 177th
Report under the heading` Introduction to the doctrine of "arrest"
has described as follows: 46 "Liberty is the most precious of all the
human rights". It has been the founding faith of the human race for more
than 200 years. Both the American Declaration of Independence, 1776 and the
French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty
being one of the natural and inalienable rights of man. The universal
declaration of human rights adopted by the general assembly on United Nations
on December 10, 1948 contains several articles designed to protect and promote
the liberty of individual. So does the international covenant on civil and
political rights, 1996. Above all, Article 21 of the Constitution of India
proclaims that no one shall be deprived of his right to personal liberty except
in accordance with the procedure prescribed by law. Even Article 20(1) &
(2) and Article 22 are born out of a concern for human liberty. As it is often
said, "one realizes the value of liberty only when he is deprived of
it." Liberty, along with equality is the most fundamental of human rights
and the fundamental freedoms guaranteed by the Constitution. Of equal importance
is the maintenance of peace, law and order in the society. Unless, there is
peace, no real progress is possible. Societal peace lends stability and
security to the polity. It provides the necessary conditions for growth,
whether it is in the economic sphere or in the scientific and technological
spheres."
92.
Just
as the Liberty is precious to an individual, so is the society's interest in
maintenance of peace, law and order. Bothare equally important.
93.
It
is a matter of common knowledge that a large number of under trials are
languishing in jail for a long time even for allegedly committing very minor
offences. This is because section 438 Cr.P.C. has not been allowed its full
play. The Constitution Bench in Sibbia's case (supra) clearly mentioned that
section 438 Cr.P.C. is extraordinary because it was incorporated in the Code of
Criminal Procedure, 1973 and before that other provisions for grant of bail
were sections 437 and 439Cr.P.C. It is not extraordinary in the sense that it
should be invoked only in exceptional or rare cases. Some courts of smaller
strength have erroneously observed that section 438Cr.P.C. should be invoked
only in exceptional or rare cases. Those orders are contrary to the law laid
down by the judgment of the Constitution Bench in Sibbia's case (supra).
According to the report of the National Police Commission, the power of arrest is
grossly abused and clearly violates the personal liberty of the people, as
enshrined under Article 21 of the Constitution, then the courts need to take
serious notice of it. When conviction rate is admittedly less than 10%, then
the police should be slow in arresting the accused. The courts considering the bail
application should try to maintain fine balance between the societal interest
vis-`-vis personal liberty while adhering to the fundamental principle of
criminal jurisprudence that the accused that the accused is presumed to be
innocent till he is found guilty by the competent court.
94.
The
complaint filed against the accused needs to be thoroughly examined including the
aspect whether the complainant has filed false or frivolous complaint on
earlier occasion. The court should also examine the fact whether there is any
family dispute between the accused and the complainant and the complainant must
be clearly told that if the complaint is found to be false or frivolous, then
strict action will be taken against him in accordance with law. If the
connivance between the complainant and the investigating officer is established
then action be taken against the investigating officer in accordance with law.
95.
The
gravity of charge and exact role of the accused must be properly comprehended.
Before arrest, the arresting officer must record the valid reasons which have
led to the arrest of the accused in the case diary. In exceptional cases the
reasons could be recorded immediately after the arrest, so that while dealing
with the bail application, the remarks and observations of the arresting
officer can also be properly evaluated by the court.
96.
It
is imperative for the courts to carefully and with meticulous precision evaluate
the facts of the case. The discretion must be exercised on the basis of the
available material and the facts of the particular case. In cases where the court
is of the considered view that the accused has joined investigation and he is
fully cooperating with the investigating agency and is not likely to abscond,
in that event, custodial interrogation should be avoided.
97.
A
great ignominy, humiliation and disgrace is attached to the arrest. Arrest
leads to many serious consequences not only for the accused but for the entire
family and at times for the entire community. Most people do not make any
distinction between arrest at a pre-conviction stage or post-conviction stage. Whether
the powers under section 438 Cr.P.C. are subject tolimitation of section 437
Cr.P.C.?
98.
The
question which arises for consideration is whether the powers under section 438
Cr.P.C. are unguided or un canalized or are subject to all the limitations of
section 437 Cr.P.C.? The Constitution Bench in Sibbia's case (supra) has clearly
ob served that there is no justification for reading into section 438 Cr.P.C. and
the limitations mentioned in section 437 Cr.P.C. The Court 50further observed
that the plentitude of the section must be given its full play. The
Constitution Bench has also observed that the High Court is not right in
observing that the accused must make out a "special case" for the
exercise of the power to grant anticipatory bail. This virtually, reduces the
salutary power conferred by section 438 Cr.P.C. to a dead letter. The Court observed
that "We do not see why the provisions of Section 438Cr.P.C. should be
suspected as containing something volatile or incendiary, which needs to be
handled with the greatest care and caution imaginable."
99.
As
aptly observed in Sibbia's case (supra) that a wise exercise of judicial power
inevitably takes care of the evil consequences which are likely to flow out of
its intemperate use. Every kind of judicial discretion, whatever may be the
nature of the matter in regard to which it is required to be exercised, has to
be used with due care and caution. In fact, an awareness of the context in
which the discretion is required to be exercised and of the reasonably
foreseeable consequences of its use, is thehallmark of a prudent exercise of
judicial discretion. One ought not to make a bugbear of the power to grant
anticipatory bail.
100.
The
Constitution Bench in the same judgment also observed that a person seeking
anticipatory bail is still a freeman entitled to the presumption of innocence.
He is willing to submit to restraints and conditions on his freedom, by the acceptance
of conditions which the court may deem fit to impose, in consideration of the
assurance that if arrested, he shall enlarged on bail.
101.
The
proper course of action ought to be that after evaluating the averments and
accusation available on the record if the court is inclined to grant
anticipatory bail then an interim bail be granted and notice be issued to the
public prosecutor. After hearing the public prosecutor the court may either
reject the bail application or confirm the initial order of granting bail. The
court would certainly be entitled to impose conditions for the grant of bail. The
public prosecutor or complainant would be at liberty to move the same court for
cancellation or modifying the conditions of bail any time if liberty granted by
the court is misused. The bail granted by the court should ordinarily be continued
till the trial of the case.
102.
The
order granting anticipatory bail for a limited duration and thereafter
directing the accused to surrender and apply before a regular bail is contrary
to the legislative intention and the judgment of the Constitution Bench in
Sibbia's case(supra).
103.
It
is a settled legal position that the court which grants the bail also has the
power to cancel it. The discretion of grant or cancellation of bail can be
exercised either at the instance of the accused, the public prosecutor or the
complainant on finding new material or circumstances at any point of time.
104.
The
intention of the legislature is quite clear that the power of grant or refusal
of bail is entirely discretionary. The Constitution Bench in Sibbia's case
(supra) has clearly stated that grant and refusal is discretionary and it
should depend on the facts and circumstances of each case. The Constitution Bench
in the said case has aptly observed that we must respect the wisdom of the
Legislature entrusting this power to the superior courts namely, the High Court
and the Court of Session. The Constitution Bench observed as under: "We
would, therefore, prefer to leave the High Court and the Court of Session to
exercise their jurisdiction under Section 438 by a wise and careful use of
their discretion which, by their long training and experience, they are ideally
suited to do. The ends of justice will be better served by trusting these
courts to act objectively and in consonance with principles governing the grant
of bail which are recognized over the years, than by divesting them of their
discretion which the legislature has conferred upon them, by laying down
inflexible rules of general application. It is customary, almost chronic, to
take a statute as one finds it on the grounds that, after all "the
legislature in, its wisdom" has thought it fit to use a particular expression.
A convention may usefully grow whereby the High Court and the Court of Session
may be trusted to exercise their discretionary powers in their wisdom,
especially when the discretion is entrusted to their care by the legislature in
its wisdom. If they err, they are liable to be corrected."GRANT OF BAIL
FOR LIMITED PERIOD IS CONTRARY TO THE LEGISLATIVE INTENTION AND LAW DECLARED BY
THE CONSTITUTION BENCH”:
105.
The
court which grants the bail has the right to cancel the bail according to the
provisions of the General Clauses Act but ordinarily after hearing the public
prosecutor when the bail order is confirmed then the benefit of the grant of
the bail should continue till the end of the trial of that case.
106.
The
judgment in Salauddin Abdulsamad Shaikh (supra)is contrary to legislative
intent and the spirit of the very provisions of the anticipatory bail itself
and has resulted in an 54artificial and unreasonable restriction on the scope
of enactment contrary to the legislative intention.
107.
The
restriction on the provision of anticipatory bail under section 438 Cr.P.C.
limits the personal liberty of the accused granted under Article 21 of the
constitution. The added observation is nowhere found in the enactment and
bringing in restrictions which are not found in the enactment is again an unreasonable
restriction. It would not stand the test of fairness and reasonableness which
is implicit in Article 21 of the Constitution after the decision in Maneka
Gandhi's case (supra)in which the court observed 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.
108.
Section
438 Cr.P.C. does not mention anything about the duration to which a direction
for release on bail in the event of arrest can be granted. The order granting
anticipatory bail is a direction specifically to release the accused on bail in
the event of his arrest. Once such a direction of anticipatory bail is executed
by the accused and he is released on bail, the 55concerned court would be fully
justified in imposing conditions including direction of joining investigation.
109.
The
court does not use the expression `anticipatory bail' but it provides for issuance
of direction for the release on bail by the High Court or the Court of Sessions
in the event of arrest. According to the aforesaid judgment of Salauddin's
case, the accused has to surrender before the trial court and only there after
he/she can make prayer for grant of bail by the trial court. The trial court
would release the accused only after he has surrendered.
110.
In
pursuance to the order of the Court of Sessions or the High Court, once the
accused is released on bail by the trial court, then it would be unreasonable
to compel the accused to surrender before the trial court and again apply for
regular bail.
111.
The
court must bear in mind that at times the applicant would approach the court
for grant of anticipatory bail on mere apprehension of being arrested on accusation
of having committed a non-bailable offence. In fact, the investigating or concerned
agency may not otherwise arrest that applicant who has applied for anticipatory
bail but just because he makes an application before the court and gets the
relief from the court for a limited period and thereafter he has to surrender
before the trial court and only thereafter his bail application can be considered
and life of anticipatory bail comes to an end. This may lead to disastrous and
unfortunate consequences. The applicant who may not have otherwise lost his
liberty loses it because he chose to file application of anticipatory bail on
mere apprehension of being arrested on accusation of having committed a
non-bailable offence. No arrest should be made because it is lawful for the
police officer to do so. The existence of power to arrest is one thing and the
justification for the exercise of it is quite another. The police officer must
be able to justify the arrest apart from his power to do so. This finding of the
said judgment (supra) is contrary to the legislative intention and law which
has been declared by a Constitution Bench of this court in Sibbia's case
(supra).
112.
The
validity of the restrictions imposed by the Apex Court, namely, that the
accused released on anticipatory bail must submit himself to custody and only
thereafter can apply for regular bail. This is contrary to the basic intention
and spirit of section 438 Cr.P.C. It is also contrary to Article 21 of the Constitution.
The test of fairness and reasonableness is implicit under Article 21 of the
Constitution of India. Directing the accused to surrender to custody after the
limited period amounts to deprivation of his personal liberty.
113.
It
is a settled legal position crystallized by the Constitution Bench of this
court in Sibbia's case (supra) that the courts should not impose restrictions
on the ambit and scope of section438 Cr.P.C. which are not envisaged by the
Legislature. The court cannot rewrite the provision of the statute in the garb
of interpreting it.
114.
It
is unreasonable to lay down strict, inflexible and rigid rules for exercise of
such discretion by limiting the period of which an order under this section
could be granted. We deem it appropriate to reproduce some observations of the
judgment of the Constitution Bench of this court in the Sibbia's case(supra). "The
validity of that section must accordingly be examined by the test of fairness
and reasonableness which is implicit in Article 21. If the legislature itself were
to impose an unreasonable restriction on the grant of anticipatory bail, such a
restriction could have been struck down as being violative of Article 21. Therefore,
while determining the scope of Section 438, the court should not impose any
unfair or 58unreasonable limitation on the individual's right to obtain an
order of anticipatory bail. Imposition of an unfair or unreasonable limitation,
according to the learned Counsel, would be violative of Article 21, irrespective
of whether it is imposed by legislation or by judicial decision. xxx xxx xxx 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." xxx
xxx xxx "I desire in the first instance to point out that the discretion
given by the section is very wide. . . Now it seems to me that when the Act is
so expressed to provide a wide discretion, ... it is not advisable to lay down
any rigid rules for guiding that discretion. I do not doubt that the rules
enunciated by the Master of the Rolls in the present case are useful maxims in general,
and that in general they reflect the point of view from which judges would
regard an application for relief. But I think it ought to be distinctly understood
that there may be cases in which any or all of them may be disregarded. If it
were otherwise, the free discretion given by the statute would be fettered by
limitations which have nowhere been enacted. It is one thing to decide what is
the true meaning of the language contained in an Act of Parliament. It is quite
a different thing to place 59 conditions upon a free discretion entrusted by
statute to the court where the conditions are not based upon statutory
enactment at all. It is not safe, I think, to say that the court must and will
always insist upon certain things when the Act does not require them, and the
facts of some unforeseen case may make the court wish it had kept a free
hand." xxx xxx xxx "The concern of the courts generally is to
preserve their discretion without meaning to abuse it. It will be strange if we
exhibit concern to stultify the discretion conferred upon the courts by
law."
115.
The
Apex Court in Salauddin's case (supra) held that anticipatory bail should be
granted only for a limited period and on the expiry of that duration it should
be left to the regular court to deal with the matter is not the correct view.
The reasons quoted in the said judgment is that anticipatory bail is granted at
a stage when an investigation is incomplete and the court is not informed about
the nature of evidence against the alleged offender.
116.
The
said reason would not be right as the restriction is not seen in the enactment
and bail orders by the High Court and Sessions Court are granted under sections
437 and 439 also at such stages and they are granted till the trial.
117.
The
view expressed by this Court in all the above referred judgments have to be
reviewed and once the anticipatory bail is granted then the protection should
ordinarily be available till the end of the trial unless the interim protection
by way of the grant of anticipatory bail is curtailed when the anticipatory
bail granted by the court is cancelled by the court on finding fresh material
or circumstances or on the ground of abuse of the indulgence by the accused.
SCOPE AND AMBIT OF
ANTICIPATORY BAIL:
118.
A
good deal of misunderstanding with regard to the ambit and scope of section 438
Cr.P.C. could have been avoided in case the Constitution Bench decision of this
court in Sibbia's case(supra) was correctly understood, appreciated and
applied.
119.
This
Court in the Sibbia's case (supra) laid down the following principles with
regard to anticipatory bail:
a. Section 438(1) is to
be interpreted in light of Article of the Constitution of India.
b. Filing of FIR is not a
condition precedent to exercise of power under section 438.
c. Order under section
438 would not affect the right of police to conduct investigation.
d. Conditions mentioned
in section 437 cannot be read into section 438.
e. Although the power to
release on anticipatory bail can be described as of an
"extraordinary" character this would "not justify the conclusion
that the power must be exercised in exceptional cases only." Powers are
discretionary to be exercised in light of the circumstances of each case.
f. Initial order can be
passed without notice to the Public Prosecutor. Thereafter, notice must be issued
forthwith and question ought to be reexamined after hearing.
Such ad interim order
must conform to requirements of the section and suitable conditions should be
imposed on the applicant.
120.
The
Law Commission in July 2002 has severely criticized the police of our country
for the arbitrary use of power of arrest which, the Commission said, is the result
of the vast discretionary powers conferred upon them by this Code. The Commission
expressed concern that there is no internal mechanism within the police
department to prevent misuse of law in this manner and the stark reality that
complaint lodged in this regard does not bring any result. The Commission
intends to suggest amendments in the Criminal Procedure Code and has invited
suggestions from various quarters. Reference is made in this Article to the
41st Report of the Law Commission wherein the Commission saw `no justification'
to require a person to submit to custody, remain in prison for some days and
then apply for bail even when there are reasonable grounds for holding that the
person accused of an offence is not likely to abscond or otherwise misuse his
liberty. Discretionary power to order anticipatory bail is required to be
exercised keeping in mind these sentiments and spirit of the judgments of this
court in Sibbia's case (supra) and Joginder Kumar v. State of U.P. and Others
(1994) 4 SCC 260. Relevant consideration for exercise of the power
121.
No
inflexible guidelines or straitjacket formula can be provided for grant or
refusal of anticipatory bail. We are clearly of the view that no attempt should
be made to provide rigid and inflexible guidelines in this respect because all
circumstances and situations of future cannot be clearly visualized for the
grantor refusal of anticipatory bail. In consonance with the legislative intention
the grant or refusal of anticipatory bail should necessarily depend on facts
and circumstances of each case. As aptly observed in the Constitution Bench
decision in Sibbia's case (supra) that the High Court or the Court of Sessions
to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful
use of their discretion which by their long training and experience they are
ideally suited to do. In any event, this is the legislative mandate which we
are bound to respect andhonour.
122.
The
following factors and parameters can be taken into consideration while dealing
with the anticipatory bail:
i.
The
nature and gravity of the accusation and the exact role of the accused must be
properly comprehended before arrest is made;
ii.
The
antecedents of the applicant including the fact as to whether the accused has
previously undergone imprisonment on conviction by a Court in respect of any
cognizable offence;
iii.
The
possibility of the applicant to flee from justice;
iv.
The
possibility of the accused's likelihood to repeat similar or the other
offences.
v.
Where
the accusations have been made only with the object of injuring or humiliating
the applicant by arresting him or her.
vi.
vi.
Impact of grant of anticipatory bail particularly in cases of large magnitude
affecting a very large number of people.
vii.
vii.
The courts must evaluate the entire available material against the accused very
carefully.
The court must also
clearly comprehend the exact role of the accused in the case. The cases in
which accused is implicated with the help of sections 34 and 149 of the Indian
Penal Code, the court should consider with even greater care and caution because
over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance
has to be struck between two factors namely, no prejudice should be 64 caused
to the free, fair and full investigation and there should be prevention of
harassment, humiliation and unjustified detention of the accused; ix. The court
to consider reasonable apprehension of tampering of the witness or apprehension
of threat to the complainant; x. Frivolity in prosecution should always be considered
and it is only the element of genuineness that shall have to be considered in
the matter of grant of bail and in the event of there being some doubt as to
the genuineness of the prosecution, in the normal course of events, the accused
is entitled to an order of bail.
123.
The
arrest should be the last option and it should be restricted to those
exceptional cases where arresting the accuse dis imperative in the facts and
circumstances of that case.
124.
The
court must carefully examine the entire available record and particularly the
allegations which have been directly attributed to the accused and these
allegations are corroborated by other material and circumstances on record.
125.
These
are some of the factors which should be taken into consideration while deciding
the anticipatory bail applications. These factors are by no means exhaustive
but they are only illustrative in nature because it is difficult to clearly
visualize all situations and circumstances in which a person may pray for anticipatory
bail. If a wise discretion is exercised by the concerned judge, after
consideration of entire material on record then most of the grievances in
favour of grant of or refusal of bail will be taken care of. The legislature in
its wisdom has entrusted the power to exercise this jurisdiction only to the
judges of the superior courts. In consonance with the legislative intention we should
accept the fact that the discretion would be properly exercised. In any event,
the option of approaching the superior court against the court of Sessions or
the High Court is alwaysavailable.
126.
Irrational
and Indiscriminate arrest are gross violation of human rights. In Joginder
Kumar's case (supra), a three Judge Bench of this Court has referred to the 3rd
report of the National Police Commission, in which it is mentioned that the quality
of arrests by the Police in India mentioned power of arrest as one of the chief
sources of corruption in the police. The report suggested that, by and large,
nearly 60% of the arrests were either unnecessary or unjustified and that such
unjustified police action accounted for 43.2% of the expenditure of the jails.
127.
Personal
liberty is a very precious fundamental right and it should be curtailed only
when it becomes imperative according to the peculiar facts and circumstances of
the case.
128.
In
case, the State consider the following suggestions in proper perspective then
perhaps it may not be necessary to curtail the personal liberty of the accused
in a routine manner. These suggestions are only illustrative and not exhaustive.
a. Direct the accused to
join investigation and only when the accused does not cooperate with the investigating
agency, then only the accused be arrested.
b. Seize either the
passport or such other related documents, such as, the title deeds of
properties or the Fixed Deposit Receipts/Share Certificates of the accused.
c. Direct the accused to
execute bonds;
d. The accused may be
directed to furnish sureties of number of persons which according to the prosecution
are necessary in view of the facts of the particular case. 5) The accused be
directed to furnish undertaking that he would not visit the place where the witnesses
reside so that the possibility of tampering of evidence or otherwise
influencing the course of justice can be avoided. 6) Bank accounts be frozen
for small duration during investigation.
129.
In
case the arrest is imperative, according to the facts of the case, in that
event, the arresting officer must clearly record the reasons for the arrest of
the accused before the arrest in the case diary, but in exceptional cases where
it becomes imperative to arrest the accused immediately, the reasons be
recorded in the case diary immediately after the arrest is made without loss of
any time so that the court has an opportunity to properly consider the case for
grant or refusal of bail in the light of reasons recorded by the arresting
officer.
130.
Exercise
of jurisdiction under section 438 of Cr.P.C. is extremely important judicial
function of a judge and must been trusted to judicial officers with some
experience and good track record. Both individual and society have vital
interest in orders passed by the courts in anticipatory bail applications.
131.
It
is imperative for the High Courts through its judicial academies to
periodically organize workshops, symposiums, seminars and lectures by the
experts to sensitize judicial officers, police officers and investigating
officers so that they can properly comprehend the importance of personal
liberty vis-`-vis social interests. They must learn to maintain fine balance
between the personal liberty and the social interests.
132.
The
performance of the judicial officers must be periodically evaluated on the
basis of the cases decided by them. In case, they have not been able to
maintain balance between personal liberty and societal interests, the lacunae
must be pointed out to them and they may be asked to take corrective measures
in future. Ultimately, the entire discretion of grant or refusal of bail has to
be left to the judicial officers and all concerned must ensure that grant or
refusal of bail is considered basically on the facts and circumstances of each
case.
133.
In
our considered view, the Constitution Bench in Sibbia's case (supra) has
comprehensively dealt with almost all aspects of the concept of anticipatory
bail under section 438 Cr.P.C. A number of judgments have been referred to by
the learned counsel for the parties consisting of Benches of smaller strength where
the courts have observed that the anticipatory bail should be of limited
duration only and ordinarily on expiry of that duration or standard duration, the
court granting the anticipatory bail should leave it to the regular court to
deal with the matter. This view is clearly contrary to the view taken by the Constitution
Bench in Sibbia's case (supra). In the preceding paragraphs, it is clearly
spelt out that no limitation has been envisaged by the Legislature under
section 438 Cr.P.C. The Constitution Bench has aptly observed that "we see
no valid reason for rewriting section 438 with a view, not to expanding the
scope and ambit of the discretion conferred on the High Court or the Court of
Session but, for the purpose of limiting it".
134.
In
view of the clear declaration of law laid down by the Constitution Bench in
Sibbia's case (supra), it would not be proper to limit the life of anticipatory
bail. When the court observed that the anticipatory bail is for limited
duration and there after the accused should apply to the regular court for
bail, that means the life of section 438 Cr.P.C. would come to an end after
that limited duration. This limitation has not been envisaged by the
legislature. The Constitution Bench in Sibbia's case (supra) clearly observed
that it is not necessary tore-write section 438 Cr.P.C. Therefore, in view of
the clear declaration of the law by the Constitution Bench, the life of the order
under section 438 Cr.P.C. granting bail cannot be curtailed.
135.
The
ratio of the judgment of the Constitution Bench in Sibbia's case (supra)
perhaps was not brought to the notice of their Lordships who had decided the
cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra, K. L. Verma
v.State and Another, Adri Dharan Das v. State of West Bengaland Sunita Devi v.
State of Bihar and Another (supra).
136.
In
Naresh Kumar Yadav v. Ravindra Kumar (2008) 1SCC 632, a two-Judge Bench of this
Court observed "the power exercisable under section 438 Cr.P.C. is some what
extra ordinary in character and it should be exercised only in exceptional
cases. This approach is contrary to the legislative intention and the
Constitution Bench's decision in Sibbia's case (supra).
137.
We
deem it appropriate to reiterate and assert that discretion vested in the court
in all matters should be exercised with care and circumspection depending upon
the facts and circumstances justifying its exercise. Similarly, the discretion
vested with the court under section 438 Cr.P.C. should also be exercised with
caution and prudence. It is unnecessary to travel beyond it and subject to the
wide power 71and discretion conferred by the legislature to a rigorous code of
self-imposed limitations.
138.
The
judgments and orders mentioned in paras 135 and136 are clearly contrary to the law
declared by the Constitution Bench of this Court in Sibbia's case (supra).These
judgments and orders are also contrary to the legislative intention. The Court
would not be justified in re-writing section 438 Cr.P.C.
139.
Now
we deem it imperative to examine the issue of perincuriam raised by the learned
counsel for the parties. In Young v. Bristol Aeroplane Company Limited (1994)
All ER293 the House of Lords observed that `In curia' literally means` carelessness'.
In practice per incuriam appears to mean perignoratium. English courts have
developed this principle in relaxation of the rule of stare decisis. The
`quotable in law' is avoided and ignored if it is rendered, `in ignoratium of a
statute or other binding authority. The same has been accepted, approved and
adopted by this court while interpreting Article141 of the Constitution which
embodies the doctrine of precedents as a matter of law. "......... In
Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial
Decisions as Authorities (pp. 297-98, para 578) per in curiam has been
elucidated as under: "A decision is given per incuriam when the court has
acted in ignorance of a previous decision of its own or of a court of
coordinate jurisdiction which covered the case before it, in which case it must
decide which case to follow (Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at
729 : (1944) 2 All ER 293 at 300. In Huddersfield Police Authority v. Watson,
1947 KB 842 : (1947) 2 All ER 193.); or when it has acted in ignorance of a
House of Lords decision, in which case it must follow that decision; or when the
decision is given in ignorance of the terms of a statute or rule having statutory
force."
140.
Lord
Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193
observed that where a case or statute had not been brought to the court's
attention and the court gave the decision in ignorance or forgetfulness of the existence
of the case or statute, it would be a decision rendered in per in curiam.
141.
This
court in Government of A.P. and Another v. B. Satyanarayana Rao (dead) by LRs.
and Others (2000) 4SCC 262 observed as under: "The rule of per incuriam
can be applied where a court omits to consider a binding precedent of the same
court or the superior court rendered on the same issue or where a court omits
to consider any statute while deciding that issue."
142.
In
a Constitution Bench judgment of this Court in Union of India v. Raghubir Singh
(1989) 2 SCC 754, Chief Justice Pathak observed as under: "The doctrine of
binding precedent has the merit of promoting a certainty and consistency in
judicial decisions, and enables an organic development of the law, besides
providing assurance to the individual as to the consequence of transactions forming
part of his daily affairs. And, therefore, the need for a clear and consistent
enunciation of legal principle in the decisions of a court."
143.
In
Thota Sesharathamma and another v. Thota Manikyamma (Dead) by LRs. and others
(1991) 4 SCC 312 atwo Judge Bench of this Court held that the three Judge Bench
decision in the case of Mst. Karmi v. Amru (1972) 4SCC 86 was per incuriam and
observed as under: "...It is a short judgment without adverting to any
provisions of Section 14 (1) or 14(2) of the Act. The judgment neither makes
any mention of any argument raised in this regard nor there is any mention of
the earlier decision in Badri Pershad v. Smt. Kanso Devi. The decision in Mst.
Karmi cannot be considered as an authority on the ambit and scope of Section
14(1) and (2) of the Act."
144.
In
R. Thiruvirkolam v. Presiding Officer and Another (1997) 1 SCC 9 a two Judge
Bench of this Court observed that the question is whether it was bound to
accept the decision rendered in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha
(1980) 2 SCC 593, which was not inconformity with the decision of a
Constitution Bench in P.H.Kalyani v. Air France (1964) 2 SCR 104. J.S. Verma,
J. speaking for the court observed as under: "With great respect, we must
say that the above-quoted observations in Gujarat Steel at P. 215 are not in
line with the decision in Kalyani which was binding or with D.C. Roy to which
the learned Judge, Krishna Iyer, J. was a party. It also does not match with
the underlying juristic principle discussed in Wade. For the reasons, we are
bound to follow the Constitution Bench decision in Kalyani, which is the
binding authority on the point."
145.
In
Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and others (2001) SCC
448 a Constitution Bench of this Court ruled that a decision of a Constitution
Bench of this Court binds a Bench of two learned Judges of this Court and that
judicial discipline obliges them to follow it, regardless of their doubts about
its correctness.
146.
A
Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v.
State of Maharashtra(2005) 2 SCC 673 has observed that the law laid down by
this Court in a decision delivered by a Bench of larger strength is binding on
any subsequent Bench of lesser or co equal strength.
147.
A
three-Judge Bench of this court in Official Liquidatorv. Dayanand and Others
(2008) 10 SCC 1 again reiterated the clear position of law that by virtue of
Article 141 of the Constitution, the judgment of the Constitution Bench in
State of Karnataka and Others v. Umadevi (3) and Others (2006)4 SCC 1 is
binding on all courts including this court till the same is overruled by a
larger Bench. The ratio of the Constitution Bench has to be followed by Benches
of lesser strength. In para 90, the court observed as under:"We are
distressed to note that despite several pronouncements on the subject, there is
substantial increase in the number of cases involving violation of the basics
of judicial discipline. The learned Single Judges and Benches of the High
Courts refuse to follow and accept the verdict and law laid down by coordinate
and even larger Benches by citing minor difference in the facts as the ground
for doing so. Therefore, it has become necessary to reiterate that disrespect
to the constitutional ethos and breach of discipline have grave impact on the 76
credibility of judicial institution and encourages chance litigation. It must
be remembered that predictability and certainty is an important hallmark of
judicial jurisprudence developed in this country in the last six decades and
increase in the frequency of conflicting judgments of the superior judiciary
will do incalculable harm to the system inasmuch as the courts at the grass
roots will not be able to decide as to which of the judgments lay down the
correct law and which one should be followed."
148.
In
Subhash Chandra and Another v. Delhi Subordinate Services Selection Board and
Others (2009)15 SCC 458, this court again reiterated the settled legal position
that Benches of lesser strength are bound by the judgments of the Constitution
Bench and any Bench of smaller strength taking contrary view is per incuriam. The
court in para 110 observed as under:"Should we consider S. Pushpa v. Sivachanmugavelu
(2005) 3 SCC 1 to be an obiter following the said decision is the question
which arises herein. We think we should. The decisions referred to hereinbefore
clearly suggest that we are bound by a Constitution Bench decision. We have referred
to two Constitution Bench decisions, namely, Marri Chandra Shekhar Rao v. Seth
G.S. Medical College (1990) 3 SCC 139 and E.V. Chinnaiah v. State of A.P.
(2005) 1 SCC 394. Marri Chandra Shekhar Rao (supra) had been followed by this
Court in a large number of decisions including the three-Judge Bench decisions.
S. Pushpa (supra) therefore, could not have ignored either Marri Chandra
Shekhar Rao 77 (supra) or other decisions following the same only on the basis
of an administrative circular issued or otherwise and more so when the constitutional
scheme as contained in clause (1) of Articles 341 and 342 of the Constitution
of India putting the State and Union Territory in the same bracket. Following
Official Liquidator v. Dayan and Others (2008) 10 SCC 1 therefore, we are of
the opinion that the dicta in S. Pushpa (supra) is an obiter and does not lay
down any binding ratio."
149.
The
analysis of English and Indian Law clearly leads to the irresistible conclusion
that not only the judgment of a larger strength is binding on a judgment of
smaller strength but the judgment of a co-equal strength is also binding on a Bench
of judges of co-equal strength. In the instant case, judgments mentioned in
paragraphs 135 and 136 are by two or three judges of this court. These
judgments have clearly ignored a Constitution Bench judgment of this court in Sibbia's
case (supra) which has comprehensively dealt withal the facets of anticipatory
bail enumerated under section438 of Cr.P.C.. Consequently, judgments mentioned in
paragraphs 135 and 136 of this judgment are per incuriam.
150.
In
case there is no judgment of a Constitution Bench orlarger Bench of binding
nature and if the court doubts the correctness of the judgments by two or three
judges, then the proper course would be to request Hon'ble the Chief Justice to
refer the matter to a larger Bench of appropriate strength.
151.
In
the instant case there is a direct judgment of the Constitution Bench of this
court in Sibbia's case (supra)dealing with exactly the same issue regarding
ambit, scope and object of the concept of anticipatory bail enumerated under
section 438 Cr.P.C. The controversy is no longer reintegrate. We are clearly
bound to follow the said judgment of the Constitution Bench. The judicial
discipline obliges us to follow the said judgment in letter and spirit.
152.
In
our considered view the impugned judgment and order of the High Court declining
anticipatory bail to the appellant cannot be sustained and is consequently set
aside.
153.
We
direct the appellant to join the investigation and fully cooperate with the
investigating agency. In the event of arrest the appellant shall be released on
bail on his furnishing a personal bond in the sum of Rs.50,000/with two
sureties in the like amount to the satisfaction of the arresting officer.
154.
Consequently,
this appeal is allowed and disposed of in terms of the aforementioned
observations.
...............................................J.
(Dalveer Bhandari)
..............................................J.
(K.S. PanickerRadhakrishnan)
New
Delhi;
December
2, 2010
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