State Of Manipur vs Vikas Yadav on 2/3/2000
1. This Revision petition under sections 379 and 401 of the Code of Criminal Procedure, 1973 read with sections 483 and Article 227 of the Constitution of India is directed against the order dated 15.5.1999 passed by the learned District & Sessions Judge, Manipur East, Shri Th. Sudhir Singh (under suspension) in Cril Misc. (Bail) case No.34/99 in connection with FIR Case No. 287 Mehrauli, P.S. Delhi under sections 302, 212, 201, 120-B/34 IPC in exercise of power under section 438 of the Code thereby granting pre-arrest bail to the accused/petitioner. At the outset, I must observe that in the note of Registry dated 20.9.1999 it is indicated that the service report upon the respondent has been returned after duly served, however, non appear on behalf of the respondent.
2. I have heard Mr. T. Nandakumar, learned Advocate General on behalf of the State of Manipur assisted by Mr. Mohendro.
3. Facts giving rise to the filing of the present revision petition is interesting and worth to be noted briefly. It is stated that on 30.4.1999 the respondent along with 3 (three) other accused went to Tamarind Cafe of Kutub Collonade, Delhi in which the deceased Ms. Jessica Lal worked as a Bar Attendant. A firing incident took place resulting the death of Ms. Jessica Lal Involving the respondent and 3 accused. It is stated that immediately after the occurrence the respondent along with 2 accused ran away from the place of occurrence by driving Tata Sierra bearing registration No. MP-04-V-2634. Mehrauli Police Station Delhi registered a case being FIR Case No. 287/99 under sections 302, 212, 201, 120-B and 34 IPC (popularly know as Jessica Lal murdered case). In course of Investigation accused Manu Sharma was arrested on 6.5.1999 and accused Amerdeep Singh Gill @ Tony and Alok Khanna was arrested on 5.5.1999. On their being interrogated, it has come to light that the present respondent along with 3 accused were responsible in killing Jessica Lal on the fateful day. However, the respondent could not be apprehended as he was absconding. It appear from the police report that the present respondent also filed an application dated 15.5.1999 under section 438 of the Code praying for pre-arrest bail before the Court of Additional District and Session Judge, New Delhi, subsequently withdrawn on 17.5.1999. On 15-5-99 respondent also filed a Bail Application registered as criminal Misc. (B) Cases No. 34/99 under section 438 of the Code for granting pre-arrest bail before the Court of District and Sessions Judge, Manipur East stating inter alia that he is running a business at Thangal Bazar and also residing at Thangal Bazar which subsequently proved to be false. By the impugned order dated 15-5-99, the learned District & Sessions judge, Manipur East Shri Th. Sudhir Singh (under suspension) granted pre-arrest bail for a period of 2(two) months. Hence the petition.
4. Following contentions have been raised by the learned Advocate General, Manipur :-
(a) The learned Sessions Judge, Manipur East has no jurisdiction to grant anticipatory bail inasmuch as the occurrence took place at Delhi within the territorial jurisdiction of Additional Sessions Judge, New Delhi and the accused is not a resident of any place within the territorial jurisdiction of Sessions Judge, Manipur East.
(b) The learned sessions Judge, Manipur East passed the impugned order without calling any report from the State of Manipur/DGP Manipur or Commissioner of Police, New Delhi and the Police Officials of Mehrauli within whose local jurisdiction the crime has been committed.
(c) The impugned order passed by the learned Sessions Judge, Manipur East is not sustainable as the learned Sessions Judge has passed the impugned order by relying on the provision of section 81 of the Code of Criminal Procedure inasmuch as section 81 speaks about post-arrest bail and this provision would not be available in respect of pre-arrest bail.
5. The sole question that posed for determination is whether any High Court or any Court of Session within the country can grant pre-arrest bail in exercise of the power under section 438 of the Code of Criminal Procedure, irrespective of geographical jurisdiction of the commission of the offence.
6. To answer this question, it would be necessary to have to quick survey of sections 438, 177, 76 and 167(2) of the Code of Criminal Procedure.
7. Section 438 deals with the grant of bail to person apprehending arrest. It reads :-
“(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including …..”
8. It will be noticed that the section does not mention the local jurisdiction within which the non-bailable offence has been committed. In may view, the language, “the High Court or the Court of Session” employed both in sub-section (1) and sub-section (2) means the High Court or the Court of Session having jurisdiction within the local limits of which non-bailable offence has been committed. It would be incongruous to suggest that offence is committed in one place and the trial will be taken at another place which would create anomalies and create more problems than solving it. It would not be an intention of the law maker that the discretionary power under section 438 of the Code of Criminal Procedure is vested upon any “High Court” or any “Court of Session”, irrespective of the local jurisdiction of the commission of offence, If that would be the intention of the law maker, then they would have used the word “any High Court” or “any Court of Session”. In my view, therefore, the language employed in section 438 of the Code of Criminal Procedure “the High Court” or “the Court of Session” could meant the High Court or the Court of Session within whose local jurisdiction the non-bailable offence has been committed.
9. A situation may arise (as the case at hand) the absconding accused may file several applications before the various Courts, one having jurisdiction and the other the place where the accused absconded or apprehend arrest, there is danger of likelihood of passing conflicting orders over the same offence, one granting bail, the other rejecting bail resulting in anomalous situation. Also such applications when filed are invariably considered after calling case diaries and report from the concerned Police Station and the Court within whose local jurisdiction the offence has been committed is in a better priviledge than any other Court. To avoid miscarriage of justice, it is always better to have the case diaries and police report perused before the anticipatory bail is granted. Even looking from this angle, it would not be the intention of the law maker to empower any “High Court” or the “Session Court” within the country to grant anticipatory bail irrespective of the geographical jurisdiction of the offence committed.
10. That apart, section 438 cannot be read in isolation. It has to be read in juxtaposition with sections 177, 76, 167(2) of the Code of Criminal Procedure. Section 177 deals with the ordinary place of inquiry and trial. It reads :-
“Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.”
It is noticed from the provision of section 177 and other provisions of Chapter XIII of the Code, the whole concept of criminal jurisprudence is that the jurisdiction for trial and inquiry by Criminal Court is the place or the spot of commission within whose local jurisdiction it was committed and not the resident of the accused or any other places he may abscond.
11. Section 76 of the Code will also be relevant. It reads :-
“76. The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person.
Provided that such delay shall not, in any case, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.”
12. Section 167 of the Code deals with the procedure when the investigation cannot be completed in 24 hours. Sub-section (2) is relevant for the present purpose. It reads :-
“(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit if for trial, and considers further detention unnecessary, he may order the accused to he forwarded to a Magistrate having such jurisdiction.”
13. A fascicule reading of sections 438, 177, 76 and 167(2) of the Code of Criminal Procedure, in my view, it makes it abundantly clear that the affiances are to be inquired into and tried in a court within whose local jurisdiction the crime has been committed. It is a common knowledge that many hardened criminals in India after committing heinous crime flee the place of crime and abscond or go underground so that he is thwarted from justice. Very often, the hardened criminals are arrested in place other than the place of commission of the offence but they have to be brought before the Court within whose local jurisdiction the crime has been committed. Absconding accused does not carry jurisdiction with him. The jurisdiction of the court is the place of the offence and not the place where offender is arrested or found.
14. Several High Court have given several opinions on this point. Reference may be made to the Full Bench decision of the Patna High Court in Syed Zafrul Hassan and another, petitioners v. State. Respondent, 1986, CRI.L.J. 605 where it has been held that section 438 of the Code does not permit the grant of anticipatory bail by any High Court or any Court of Session within the country where the accused may choose or apprehend arrest. Such a power vests only in the Court of Session or the High Court having jurisdiction over the locale of the commission of the offence of which the person is accused. Question of residence of accused is irrelevant in such a case.
15. In Ravinder Mohan Bakhshi and another, petitioners v. States of Punjab and others, Respondents, 1984 CRI.L.J. 714 it has been held by Punjab and Haryana High Court that where a criminal case has been registered against a person in the State of Madras, the High Court of Punjab and Haryana has no jurisdiction to grant anticipatory bail to the said person.
It has been further held that the jurisdiction of the Court arises with reference to an offence and not with reference to the offender.
16. In Dr. Pradeep Kumar Soni, application v. State of Madhaya Pradesh, non-applicant, 1990 Criminal Law Journal 2055 it has been held by the Madhaya Pradesh High Court that the Jurisdiction of a Court to grant anticipatory bail under section 438 would lie in the Court within whose jurisdiction the offence is committed and not the place where the offender resides. I respectively agree with the view taken by the different High Court as referred to above.
17. The legal controversy in my view is now set at rest by the Apex Court in State of Assam and another, appellant v. Saeed Kidwai and others, respondents, AIR 1998 SC 144. This is what has been said by the Apex Court in paragraphs 5 and 6 of the Judgment :-
“5. We do not think it necessary to decide whether Bombay High Court has jurisdiction to entertain the applications filed by the respondents. AH the same, the question of granting anticipatory bail to any person who is allegedly connected with the offenses in question must for all practical purposes be considered by the High Court of Gauhati within whose territorial jurisdiction such activities should have been perpetrated.
In view of the conceded position that appellant were not heard by the High Court we set aside the impugned orders on that ground alone. The applications are to be disposed of after hearing the appellants also. For that purpose we order that the applications for anticipatory bail filed by the respondents would stand transferred to the High Court of Gauhati where those applications would be heard by a Division Bench of that High Court and appropriate orders be passed thereon. We request the Chief Justice of High Court of Gauhati to allot these cases to a Division Bench to hear the applications, preferably on 4-11-1997.
6. In order to avoid conflicting decisions and opinion, we think it necessary that all future petitions for anticipatory bail made by any one in common or related matters referring to such activities committed within the territorial limits of Gauhati High Court shall be heard only by the same Division Bench. We further direct that no such application for anticipatory bail shall be entertained by any Court other than the division Bench of the High Court of Gauhati indicated above.”
18. It must now be taken to be the law that the discretionary power under section 438 of the Code of Criminal Procedure must now be exercised by the High Court of Court of Session within whose territorial Jurisdiction the commission of the crime should have been perpetrated.
19. Keeping in view of the settled principle of law as referred to above, I am clearly of the view that the learned Sessions Judge, Manipur East has passed the impugned order dated 15.5.1999 without any jurisdiction, resulting grave miscarriage of justice and it is accordingly quashed and set aside.
20. Adverting to the merit of the case, even the learned Session Judge, Manipur East himself has recorded that he has no jurisdiction as the case was registered in one of the Police Station at New Delhi but resorted to second proviso to section 81(1) of the Code of Criminal Procedure. Section 81(1) of the Code prescribes the procedure to be followed by Magistrate before whom such person arrested is brought. The provision under section 81 envisages post-arrest situation and not pre-arrest one. Second proviso to section 81(1) to which reliance has been placed by the learned Sessions Judge, Manipur East can be exercised only after considering the informations and documents referred to in sub-section (2) of section 78. It is significant that this power is available only under section 78 and on the basis of documents mandated to be forwarded along with the warrant by sub-section (2) thereof. The second proviso to section 81(1) is made to take care of a situation where a warrant of arrest having been executed outside the jurisdiction and accompanied by the relevant documents and informations referred to in sub-section (2) of section 78. Therefore, the provision made in proviso to section 81(1) of the Code relates to the post-arrest and not pre-arrest. This power is not available before the Judge while considering the pre-arrest bail under section 438 of the Code. The learned Sessions Judge, Manipur East, therefore, has committed a grave miscarriage of justice by resorting to proviso to section 81 while considering the pre-arrest bail under section 438 of the Code.
21. A clear distinction between post-arrest and pre-arrest bail has been highlighted by the Constitutional Bench in Gurbaksh Singh Sibbia set., appellants v. The State of Punjab, respondent and Sarbajit Singh and another, petitioners v. The State of Punjab, respondent, AIR 1980 SC 1632 in the following words :-
“The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means releases from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.”
22. In paragraph 31 of the Gurbaksh Singh Sibbia (supra), the Supreme Court has laid down the relevant considerations which weights the Court’s direction and decision in granting anticipatory bail under section 438 of the Code of Criminal Procedure. These considerations are :-
(a) Nature and seriousness of the charges.
(b) Context of the events likely to lead to the making of the charges.
(c) Reasonable possibility of the applicant’s presence not being secured at the trial.
(d) Reasonable apprehension that witnesses will be tampered with and
(e) Larger interest of the public or the State.
23. In the instant case, non of the relevant considerations enunciated by the Apex Court was available before the learned Sessions Judge while considering the application under section 438 of the Code.
24. The learned Sessions Judge, Manipur East appears to have been carried away by the statement made by the petitioner that the petitioner Js apprehending arrest for political reason because of the fact that his father is a politician and his rivals will be too happy to see the arrest and detention of the petitioner in custody, if such thing happens, it will be a great political value which may be used by the political rivals in the forthcoming election as campaign materials. These are not relevant considerations for granting pre-arrest bail under section 438.
25. It has been observed by the Apex Court in Pokar Ram, appellant v. State of Rajasthan and others, respondents, AIR 1985 SC 969 as under :-
“Let it be made distinctly clear that status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail. Anticipatory bail to some extent intrudes in the sphere of investigation of crime and the court must be cautious and circumspect in exercising such power of a discretionary nature.”
26. The Court also observed in paragraph 13 that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress. In the instant case, no relevant considerations and circumstances, much less compelling circumstances were made out for granting anticipatory bail in exercise of power under section 438 of the Code. In fact, there was no material at all and no case was made out before the learned Sessions Judge, Manipur East for granting anticipatory bail, save and except the mere statement made by the accused in the application.
27. Such a heinous and sensational murder (popularly known as Jessica Lal murder case) evokes immense public response and hue and cry has been handled in such a casual and cavalier manner as is sought to be done in the fashion it has been done by the highest hierarchy of the subordinate judiciary, is clearly highlighted from the ordersheet. From the ordersheet It appears that the accused filed an application under section 438 of the Code on 15.5.1999 and on the same day the learned Sessions Judge, Manipur East Passed the following order :-
This is an application u/s 438 CrPC praying for the grant of pre-arrest bail and issuance of direction to the arresting authority for releasing the petitioner on bail in c/w/ FIR Case No. 287/99 Mehrauli P.S. Case No. 302/212/201/120-B/34 IPC.
Register it as Cril. Misc.(B) Case.
Notice also furnished to the Addl. P.P.(D).
Put up on the bench at 3 P.M.”
28. From the ordersheet as referred to above, it clearly appears that the learned Court below neither called for the comments nor the diary from the concerned police or the Department, therefore, there was no material available before him and no case was made out for granting anticipatory bail. From the ordersheet it also as appears notice was given to the learned public prosecutor on 15.5.1999 and the consideration of pre-arrest arrest bail under section 438 was considered at 3:00 P.M. on the same day. Save and except a copy of the petition, no opportunity was given to the public prosecutor to seek instruction and put forth his point of view after giving reasonable opportunity of obtaining instruction from the Investigation Agency and case diary. A reasonable opportunity is not empty formalities. It would meant an opportunity to obtain instruction and oppose the prayer for grant of anticipatory bail. Public Prosecutor can only oppose the prayer for bail on the basis of materials collected by the Investigation Agency and appear in the case diary. Simply supplying a copy of the petition to the Public Prosecutor does not serve the purpose of the notice unless he has been given a reasonable opportunity of obtaining instruction from the Investigating Agency as well as from the case diary. The big question mark are, what has prevented the learned Court below even to adjourn the case to the next day so as to enable the Public Prosecutor to receive Instruction even through fax from the concerned Police Station ? What has prompted the learned Sessions Judge, Manipur East to act so swiftly and hastily at the costs of justice ? These mysterious questions remained unanswered, but the conclusion is obvious. To my mind, the learned Sessions Judge Manipur East has acted with an unholy haste.
29. There is yet another mysterious circumstance as to how the accused/petitioner came all the way from Delhi to the trouble torn State of Manipur situated in the remotest corner of the country bordering Burma, seeking pre-arrest bail, who is neither a resident of the State nor has any business connection with the State that too when he has already filed another application dated 15.5.1999 for bail under section 438 of the Code of Criminal Procedure as would appear at Annexure-G/9 of the Revision Petition before the Court of Additional Session Judge, New Delhi within whose jurisdiction the offence has been committed.
30. In page 4 of its judgment, the learned Court below has made the following observations :-
“It appears to me that the petitioner had no complicity with the crime, if at all he was telling the truth. In such circumstance, it will be in the interest of justice to grant an appropriate relief to the petitioner.”
31. The aforesaid observation in my view was voluntary and based on no materials not even on the plea of the accused and not at all warranted. Such observation at the threshold of the case is well motivated.
32. Judiciary is the Trustee of the public.
It is respected because it is capable of functioning for the ends of justice and for larger public interest. Public have faith in judiciary because its decisions are independent and uninfluence by any other considerations.
33. I am also tempted to quote the observation made by the Apex Court in All India Judges Association, petitioners v. Union of India and others, respondents, AIR 1992 SC 165 with regard to the conduct and character of Judicial Officer. This is what has been said by the Apex Court in paragraph 58 of its judgment :-
“58. The conduct of every judicial officer should be above reproach. He should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, fearless of public clamor, regardless of public praise, and indifferent to private, political or partisan influences; he should administer Justice according to law, and deal with his appointment as a public trust; he should not allow other affairs or his private interests to Interfere with the prompt and proper performance of his judicial duties, nor should be administer the office for the purpose of advancing his personal ambitions or increasing his popularity.”
34. The acceptability of the judgment depends upon the credibility of the conduct, honesty, integrity and character of the officer. The confidence of the litigating public gets affected or shaken by the lack of integrity and character of Judicial Officer. (See High Court of Judicature at Bombay, petitioner v. Uday Singh & Ors, respondent, (1997) 5 SCC-129).
35. In the aforesaid facts and circumstances as discussed above, the impugned order dated 15.5.1999 passed by Shri Th. Sudhir Singh, District and Sessions Judge, Manipur East (under suspension) is hereby quashed and set aside.
This Revision Petition is allowed.
36. Before parting with the records, I must place on record the valuable legal assistance rendered by Shri T. Nandakumar, learned Advocate General, Manipur, In reaching this conclusion.