1 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 321 OF 2018 (Arising Out of SLP (Crl.) Diary No. 1445 of 2018)

PANKAJ JAIN               … APPELLANT

VERSUS

UNION OF INDIA & ANR.  … RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

Leave granted.  

2. This  appeal  has  been  filed  against  the

judgment and order of Allahabad High Court dated

21.12.2017  dismissing  the  Writ  Petition

No. 62167 of 2017 filed by the appellant. The

principal  issue,  which  has  arisen  for

interpretation of this Court, is the content and

meaning of Section 88 of the Code of Criminal

Procedure,  1973  (hereinafter  referred  to  as

“Cr.P.C.”).   Before  we  come  to  the  impugned

2 judgment of the High Court, it is necessary to

note a series of litigations initiated at the

instance of the appellant in different courts,

arising  out  of  criminal  proceeding  lodged

against him.   

3. A First Information Report under Sections

120-B, 409, 420, 466, 467, 469 and 471 of Indian

Penal Code and under Sections 13(2) and 13(1)(d)

of the Prevention of Corruption Act, 1988 was

lodged against one Yadav Singh, the then Chief

Engineer of Noida, Greater Noida and the Yamuna

Expressway Authorities and a charge sheet dated

15.03.2016  being  Charge  Sheet  No.02/2016  was

submitted in the Court of Special Judge, C.B.I.

against  several  accused  including  Yadav  Singh

and the appellant Pankaj Jain.  The trial court

took  cognizance  by  order  dated  29.03.2016

summoning accused for 29.04.2016 for appearance.

The appellant filed an application under Section

482 Cr.P.C. in the Allahabad High Court being

3 Application  No.  31090  of  2016,  praying  for

quashing  the  entire  criminal  proceeding  of

Special Case No. 10 of 2016 as well as summoning

order  dated  29.03.2016.   The  application  was

finally  disposed  off  by  the  High  Court  vide

order dated 17.10.2016 with a direction that if

the applicant appears and surrenders before the

Court  below  within  two  weeks  and  applies  for

bail,  then  his  bail  application  shall  be

considered and decided.   The appellant filed an

Special  Leave  Petition  (Crl.)  No.  10191/2016

against  the  judgment  of  the  High  Court  dated

17.10.2016, which was dismissed by this Court as

withdrawn on 16.01.2017 with liberty to apply

for regular bail.   

4. A supplementary charge sheet was filed on

31.05.2017, on the basis of which a Cognizance

Order dated 07.06.2017 was passed by the Special

Judge,  C.B.I.  taking  cognizance  against  the

appellant and other accused under Sections 120B,

4 420, 468, 471 of I.P.C. and Sections 13(2) and

13(1)(d) of the Prevention of Corruption Act,

1988.  Again an application under Section 482

Cr.P.C. being Application No. 18849 of 2017 was

filed by the appellant in the High Court praying

for  quashing  the  criminal  proceeding  in

pursuance  of  supplementary  charge  sheet  dated

31.05.2017.  The High Court vide its order dated

06.07.2017  disposed  of  the  application  under

Section  482  Cr.P.c.  directing  that  if  the

applicant  appears  and  surrenders  before  the

Special  Judge,  C.B.I.  within  two  weeks  and

applies for bail, it is expected that the same

will be disposed of expeditiously in accordance

with  law.   It  was  further  directed  in  the

meantime for a period of two weeks, effect of

non-bailable warrant shall be kept in abeyance.

The appellant aggrieved by the order of the High

Court dated 06.07.2017 again filed an Special

Leave  Petition  (Criminal)  No.  7749  of  2017,

which  was  disposed  of  by  this  Court  on

5 24.11.2017 granting further two weeks’ time to

the petitioner(appellant) to apply for regular

bail  before  the  Special  Judge,  C.B.I.  with  a

direction  to  the  trial  court  to  consider  the

said application for bail forthwith.   

5. On 27.11.2017, the case was taken up by the

Special Judge, C.B.I.  The Court noticed that

appellant and one other accused was not present.

The  Court  ordered  for  issuing  non-bailable

warrants and process of Sections 82 and 83 of

Cr.P.C. against the appellant.  On the same day,

noticing  the  order  passed  by  this  Court  on

24.11.2017  in  S.L.P.  (Criminal)  No.  7749  of

2017,  the  learned  Special  Judge  stayed  the

orders against the appellant for a period of two

weeks’  as  per  order  of  this  Court.   The

appellant further filed Writ Petition (Criminal)

No. 199 of 2017 in this Court under Article 32

of the Constitution of India contending that the

petitioner  (appellant),  who  was  not  arrested

6 during  investigation  by  the  C.B.I.,  has  to

simply surrender and give a bond under Section

88  of  the  Code  of  Criminal  Procedure.   A

direction to that effect was sought for by this

Court.  This Court disposed of the writ petition

vide  its  order  dated  06.12.2017  noticing  the

earlier  order  of  this  Court  dated  24.11.2017

with the following order:-

“In  view  of  our  aforesaid  orders dated  24.11.2017,  we  are  of  the opinion that the petitioner should, in the first instance, appear before the trial  Court,  which  is  the  course  of action already charted out. It would be open to the petitioner to move an application  under  Section  88  Cr.P.C. or  a  bail  application,  as  may  be advised. It will also be open to the petitioner to rely upon the judgments in support of his contention as noted above. It is for the trial Court to go through  the  matter  and  take  a  view thereupon.  Insofar  as  this  Court  is concerned,  no  opinion  on  merits  is expressed.  

Mr.  Mukul  Rohatgi,  learned  senior counsel, submits that the petitioner, who  is  present  in  the  Court  today, shall surrender and appear before the trial Court tomorrow, 07.12.2017. This statement  of  the  learned  senior counsel is noted.

7 The  writ  petition  stands  disposed

of in the aforesaid terms.”

6. After order of this Court dated 06.12.2017,

the appellant appeared before Court of Special

Judge, C.B.I. and submitted an application dated

07.12.2017.   In  the  application,  following

prayer has been made:-

“a) That  this  Hon’ble  Court  may  be pleased  to  forthwith  take  up  and dispose this application made by the Applicant  Pankaj  Jain,  who  is voluntarily  present  before  this Hon’ble Court, pursuant to the liberty granted by the Hon’ble Supreme Court vide Order dated 6.12.2017 passed in the  Writ  Petition  (Crl.)  No.  199  of 2017 read with Order dated 24.11.2017 passed in the SLP (Crl.) No. 7749 of 2017,  and  to  permit  him  to  furnish such bond, as may deemed fit, as per Section 88 of the Cr.P.C. in RC No. RC/DST/2015/A/0004/CBI/STF/DLI  dated 30.07.2015/Case  No.  10A/2016  and 3/2017  without  sending  him  to  any prison;

b) Any such other or further order as this  Hon’ble  Court  may  deem  fit  to grant in the facts and circumstances of  the  case  and  in  the  interest  of justice.”  

7. The above application dated 07.12.2017 was

8 rejected  by  the  Special  Judge,  C.B.I.   The

Special Judge, C.B.I.  observed that the word

‘may’ used in Section 88 signifies that Section

88  is  not  mandatory  and  it  is  a  matter  of

judicial discretion.  The Special Judge after

noticing  the  allegations  of  the  appellant

rejected  the  application  No.  14B  of  2017.

Aggrieved against the judgment dated 07.12.2017,

another application No. 101B of 2017 was filed

by the appellant, which was also rejected.  The

applicant  filed  a  S.L.P.  (Crl.)  No.  9764  of

2017, which was disposed of vide its order dated

15.12.2017  observing  that  since  the  impugned

order is passed by the Special Judge, CBI, it

would  be  appropriate  for  the  petitioner  to

challenge  that  order  by  approaching  the  High

Court.   Subsequent  to  the  order  dated

15.12.2017,  the  petitioner-appellant  filed  a

Writ  Petition  No.  62167  of  2017,  where  the

Petitioner-appellant  also  sought  to  challenge

the  vires  of  Section  88  as  well  as  writ  for

9 Certiorari quashing the order dated 07.12.2017

of trial court.  In the Writ Petition, following

prayers have been made:-

(a) Issue  an  appropriate  writ,  order or  direction,  declaring  in  the above  context,  the  use  of  word ‘may’ in Section 88 of Cr.P.C. as unconstitutional,  manifestly arbitrary, unreasonable and ultra vires  of  the  fundamental  rights guaranteed under Article 14 and 21 of the Constitution of India or in the alternative to read it down by expounding,  deliberating  and delineating  its  scope  in  the context, to save Section 88 from unconstitutionally on the vice of Article  14  and  21  of  the Constitution of India.  

(b) Issue a writ of certiorari or any other  appropriate  writ,  order  or direction,  setting  aside  the impugned Order/s dated 07.12.2017 passed  by  the  Trial  Court  i.e. Special Judge for Anti-Corruption CBI  cases  at  Ghaziabad,  with consequential  relief  of  setting the  petitioner  at  liberty  by permitting  him  to  furnish  his Bonds under Section 88 of Cr.P.C. to  the  satisfaction  of  the  said Trial  Court  in  RC  No. RC/DST/2015/A/0004/CBI/STF/DLI dated 30.07.2015.

(c) Any further Order as may be in the interest  of  justice  may  also  be

10 passed by this Hon’ble Court.”  

8. The  writ  petition  has  been  dismissed  by

Division  Bench  of  the  High  Court  vide  its

judgment  and  order  dated  21.12.2017,  against

which judgment this appeal has been filed.   

9. We have heard Shri Mukul Rohtagi, learned

senior counsel appearing for the appellant and

Shri  Maninder  Singh,  Additional  Solicitor

General of India for the respondent.     

10. Shri Mukul Rohtagi, learned senior counsel

appearing  for  the  appellant  submits  that

appellant  having  not  been  arrested  during

investigation  when  he  appeared  before  the

Special Judge, C.B.I., it was obligatory on the

part of the Court to have accepted the bail bond

under Section 88 of the Cr.P.C. and released the

appellant forthwith.  It is submitted that the

Court  of  Special  Judge  committed  error  in

rejecting the application under Section 88.  It

11 is further submitted that bail application was

not filed by the appellant since all those, who

appeared  before  the  Court  were  taken  into

custody  and  their  bail  applications  were

rejected.  Learned  senior  counsel  submits  that

although Section 88 uses the word ‘may’ but the

word ‘may’ has to be read as shall causing an

obligation  on  the  Court  to  release  on  bond,

those, who appeared on their own volition in the

Court.  He further submits that the High Court

committed error in observing that petitioner has

concealed material facts from this Court when he

had filed S.L.P. (Criminal) No. 7749 of 2017.

It is submitted that all facts were mentioned in

S.L.P.  (Criminal)  No.  7749  of  2017  and

observation of the High Court that any fact was

concealed is incorrect.   

11. Shri  Maninder  Singh,  learned  Additional

Solicitor General of India for the respondent

refuting  the  submission  of  the  appellant

12 contended  that  Section  88  Cr.P.C.  has  been

rightly interpreted by the High Court.  It is

submitted that against the appellant not only

summons but non-bailable warrant and proceedings

under  Sections  82  and  83  Cr.P.C.  were  also

initiated by the Special Judge.  Hence, he was

not entitled for indulgence of being released on

submission of bond under Section 88 Cr.P.C.  He

further submits that the Court has discretionary

power under Section 88 to release a person on

accepting  bond,  which  cannot  be  claimed  as  a

matter of right by the accused, who has already

been  summoned  and  against  whom  non-bailable

warrant  has  been  issued.   It  is  further

submitted that although the petitioner-appellant

has filed various applications under Section 482

Cr.P.C.  as  well  as  Special  Leave  Petitions

before this Court, but has so far not filed any

bail  application  before  the  Special  Judge,

C.B.I.   He  submits  that  although  liberty  was

taken  by  the  appellant  from  this  Court  on

13 16.01.2017 when SLP (Crl.) No. 10190 of 2017 was

dismissed  as  well  as  on  24.11.2017  when  SLP

(Crl.)  No.  7749  of  2017  was  disposed  off  to

apply  for  regular  bail  before  the  Court  but

inspite of taking such liberty, no application

for bail was filed by the appellant.  

12. We have considered the submissions of the

learned  senior  counsel  for  the  parties  and

perused the records.  

13. The main issue which needs to be answered

in the present appeal is as to whether it was

obligatory  for  the  Court  to  release  the

appellant by accepting the bond under Section 88

Cr.P.C. on the ground that he was not arrested

during investigation or the Court has rightly

exercised its jurisdiction under Section 88 in

rejecting the application filed by the appellant

praying for release by accepting the bond under

Section 88 Cr.P.C.                    

14

14. Section 88 Cr.P.C. is a provision which is

contained  in  Chapter  VI  “Processes  to  Compel

Appearance” of the Code of Criminal Procedure,

1973.  Chapter VI is divided in four Sections –

A.-Summons;  B.-Warrant  of  arrest;  C.-

Proclamation and Attachment and D.-Other rules

regarding  processes.  Section  88  provides  as

follows:-

88. Power to take bond for appearance. -When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to  execute  a  bond,  with  or  without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial.

15. We need to first consider as to what was

the import of the words ‘may’ used in Section

88.  

16. Justice  G.P.  Singh in  “Principles  of

Statutory  Interpretation”,  14th Edition,  while

considering the enabling words ‘may’ explained

15 the following principles of interpretation:-

“(K) Enabling words, e.g., ‘may’, ‘it shall be lawful’, ‘shall have power’. Power Coupled with duty

Ordinarily,  the  words  ‘May’  and  ‘It shall  be  lawful’  are  not  words  of compulsion.  They are enabling words and they only confer capacity, power or  authority  and  imply  discretion. “They are both used in a statute to indicate  that  something  may  be  done which prior to it could not be done”. The  use  of  words  ‘Shall  have  power’ also connotes the same idea.”

17. Although, ordinary use of word ‘may’ imply

discretion but when the word ‘may’ is coupled

with duty on an authority or Court, it has been

given meaning of shall that is an obligation on

an authority or Court.  Whether use of the word

‘may’ is coupled with duty is a question, which

needs to be answered from the statutory scheme

of  a  particular  statute.   The  Principles  of

Interpretation  have  been  laid  down  by  Lord

Cairns  in  Julius  Vs.  Lord  Bishop  of  Oxford,

(1874-80)  All  ER  Rep.  43 where  Lord  Cairns

enunciated  Principles  of  Statutory

16 Interpretation in the following words:-

“There may be something in the nature of  the  thing  empowered  to  be  done, something in the object for which it is  to  be  done,  something  in  the conditions  under  which  it  is  to  be done,  something  in  the  title  of  the person  or  persons  for  whose  benefit the  power  is  to  be  exercised,  which may couple the power with a duty and make it the duty of the person in whom the power is reposed to exercise the power when called upon to do so.

Where  a  power  is  deposited  with  a public  officer  for  the  purpose  of being used for the benefit of persons specifically  pointed  out  with  regard to  whom  a  definition  is  supplied  by the Legislature of the conditions upon which  they  are  entitled  to  call  for its exercise, that power ought to be exercised and the Court will require it to be exercised.

The  enabling  words  are  construed  as compulsory whenever the object of the power is to effectuate a legal right”

18. Learned  senior  counsel  for  the  appellant

has referred to judgments of this Court in the

case  of  State  of  Uttar  Pradesh  Vs.  Jogendra

Singh, AIR 1963 SC 1618 and Ramji Missar & Anr.

Vs. State of Bihar, AIR 1963 SC 1088.  In State

of  Uttar  Pradesh  Vs.  Jogendra  Singh  (supra),

17 this Court had occasion to consider the use of

word ‘may’ in Rule 4(2) of the Uttar Pradesh

Disciplinary  Proceedings  (Administrative

Tribunal) Rules, 1947.  In the above regard, in

Paragraph 8 following has been stated:-

“8. Rule 4(2) deals with the class of gazetted government servants and gives them the right to make a request to the Governor that their cases should be referred to the Tribunal in respect of matters specified in clauses (a) to (d) of sub-rule (1). The question for our decision is whether like the word “may” in Rule 4(1) which confers the discretion on the Governor, the word “may” in sub-rule (2) confers the dis- cretion on him, or does the word “may” in sub-rule (2) really mean “shall” or “must”?  There  is  no  doubt  that  the word  “may”  generally  does  not  mean “must” or “shall”. But it is well set- tled that the word “may” is capable of meaning “must” or “shall” in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obli- gation, the word “may” which denotes discretion should be construed to mean a command. Sometimes, the legislature uses the word “may” out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. In the present case, it is the context which is decisive. The whole purpose of  Rule  4(2)  would  be  frustrated  if the word “may” in the said rule re-

18 ceives  the  same  construction  as  in sub-rule (1). It is because in regard to  gazetted  government  servants  the discretion had already been given to the Governor to refer their cases to the Tribunal that the rule making au- thority wanted to make a special pro- vision in respect of them as distin- guished from other government servants falling under Rule 4(1) and Rule 4(2) has  been  prescribed,  otherwise  Rule 4(2)  would  be  wholly  redundant.  In other words, the plain and unambiguous object  of  enacting  Rule  4(2)  is  to provide an option to the gazetted gov- ernment servants to request the Gover- nor that their cases should be tried by a tribunal and not otherwise. The rule-making  authority  presumably thought that having regard to the sta- tus  of  the  gazetted  government  ser- vants, it would be legitimate to give such an option to them. Therefore, we feel  no  difficulty  in  accepting  the view taken by the High Court that Rule 4(2) imposes an obligation on the Gov- ernor to grant a request made by the gazetted  government  servant  that  his case  should  be  referred  to  the  Tri- bunal under the Rules. Such a request was admittedly made by the respondent and has not been granted. Therefore, we are satisfied that the High Court was right in quashing the proceedings proposed to be taken by the appellant against the respondent otherwise than by referring his case to the Tribunal under the Rules.”

19. This Court held that use of the word ‘may’

19 in Rule 4(2) confers an obligation and gaven the

right  to  the  government  servants  to  make  a

request to the Governor.  Thus, in the above

case,  the  word  ‘may’  was  coupled  with  duty,

which was held to be obligatory.  

20. In  Ramji Missar & Anr. Vs. State of Bihar

(supra),  this  Court  again  considered  Sections

11(1) and 6(2) of Probation of Offenders Act,

1958.   In  Para  16,  this  Court  laid  down

following:-

“16. Though the word “may” might con- note merely an enabling or premissive power in the sense of the usual phrase “it shall be lawful”, it is also capa- ble of being construed as referring to a compellable duty, particularly when it refers to a power conferred on a court or other judicial authority. As observed in Maxwell on Statutes: “Statutes  which  authorise  persons to do acts for the benefit of oth- ers, or, as it is sometimes said, for the public good or the advance- ment of justice, have often given rise to controversy when conferring the authority in terms simply en- abling and not mandatory. In enact- ing that they ‘may’, or shall, if they  think  fit,’  or,  ‘shall  have power,’ or that ‘it shall be law-

20 ful’ for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have — to say the least  —  a  compulsory force.”……………………

21. This Court noticed that in the 1958 Act,

certain tests as a guidance have been laid down

for exercise of discretion by the Court.  The

Court  rejected  the  submission  that  there  is

unfettered discretion in the Appellate Court in

exercising power under Section 11.  The above

case was also a case where discretion given to

the  Court  to  be  exercised  under  certain

guidelines  and  tests,  which  was  a  case  of

discretion coupled with duty.

22. This Court in the case of State of Kerala &

Ors. Vs. Kandath Distilleries, (2013) 6 SCC 573

came to consider the use of expression ‘may’ in

Kerala Abkari Act, 1902.  The Court held that

the expression conferred discretionary power on

21 the Commissioner and power is not coupled with

duty.  Following observation has been made in

paragraph 29:-

“29.Section  14  uses  the expression  “Commissioner  may”, “with  the  approval  of  the Government” so also Rule 4 uses the  expressions  “Commissioner may”, “if he is satisfied” after making such enquiries as he may consider  necessary  “licence  may be issued”. All those expressions used  in  Section  14  and  Rule  4 confer  discretionary  powers  on the Commissioner as well as the State  Government,  not  a discretionary power coupled with duty....”

23. Section 88 of the Cr.P.C. does not confer

any right on any person, who is present in a

Court.  Discretionary power given to the Court

is  for  the  purpose  and  object  of  ensuring

appearance of such person in that Court or to

any  other  Court  into  which  the  case  may  be

transferred for trial.  Discretion given under

Section  88  to  the  Court  does  not  confer  any

right on a person, who is present in the Court

rather it is the power given to the Court to

22 facilitate  his  appearance,  which  clearly

indicates  that  use  of  word  ‘may’  is

discretionary  and  it  is  for  the  Court  to

exercise  its  discretion  when  situation  so

demands.  It is further relevant to note that

the word used in Section 88 “any person” has to

be  given  wide  meaning,  which  may  include

persons, who are not even accused in a case and

appeared as witnesses.  

24. Learned  counsel  for  the  appellant  has

referred to two judgments of Delhi High Court,

namely,  Court  on  Its  own  Motion  Vs.  Central

Bureau of Investigation, 109 (2003) Delhi Law

Times 494. In the above case, certain general

directions were issued by the Court in context

of Section 173 and 170 of Cr.P.C.  The said case

was not a case where issue which has fallen in

the  present  case  pertaining  to  Section  88

Cr.P.C. was involved.  The subsequent judgment

of  Delhi  High  Court  in  Sanjay  Chaturvedi  Vs.

23 State, 132 (2006) Delhi Law Times 692 was also a

case where earlier judgment of Delhi High Court

in Court on Its own Motion Vs. Central Bureau of

Investigation (supra) was followed.  The said

case also does not in any manner adopted the

interpretation of Section 88 as contended by the

appellant.  

25. Another  judgment  of  Delhi  High  Court  in

Bail Application No. 508 of 2011 Sanjay Chandra

Vs. C.B.I. decided on 23.05.2011 supports the

submission  raised  by  learned  Additional

Solicitor General that power under Section 88

Cr.P.C.,  the  word  ‘may’  used  in  Section  88

Cr.P.C.  is  not  mandatory  and  is  a  matter  of

judicial discretion. Paras 20, 21 and 22 of the

judgment are to the following effect:-

“20. Learned Shri Ram Jethmalani and learned  Shri  K.T.S.  Tulsi,  Sr. Advocates appearing for accused Sanjay Chandra,  learned  Shri  Mukul  Rohtagi, Sr.  Advocate  appearing  for  accused Vinod  Goenka,  learned  Shri  Soli Sorabjee  and  learned  Shri  Ranjit Kumar,  Sr.  Advocates  appearing  for accused  Gautam  Doshi,  learned  Shri

24 Rajiv  Nayar,  Sr.  Advocate  appearing for accused Hari Nair and learned Shri Neeraj  Kishan  Kaul,  Sr.  Advocate appearing for accused Surendra Pipara, at the outset, have contended that the order of learned Special Judge dated 20th April, 2011 rejecting the bail of the  petitioners  is  violative  of  the mandate  of  Section  88  Cr.P.C.  It  is contended  that  admittedly  the petitioners  were  neither  arrested during  investigation  nor  they  were produced  in  custody  along  with  the charge  sheet  as  envisaged  under Section  170  Cr.P.C.  Therefore,  the trial  court  was  supposed  to  release the  petitioners  on  bail  by  seeking bonds with or without sureties in view of  Section  88  Cr.P.C.  Thus,  it  is urged  that  on  this  count  alone,  the petitioners are entitled to bail.  

21. The  interpretation  sought  to  be given  by  the  petitioners  is misconceived and based upon incorrect reading of Section 88 Cr.P.C., which is reproduced thus:  

“88.  Power  to  take  bond  for appearance.---When  any  person  for whose  appearance  or  arrest  the officer presiding in any Court is empowered  to  issue  a  summons  or warrant, is present in such court, such  officer  may  require  such person to execute a bond, with or without  sureties,  for  his appearance  in  such  court,  or  any other court to which the case may be transferred for trial”  

22.  On  reading  of  the  above,  it  is

25 obvious  that  Section  88  Cr.P.C. empowers  the  court  to  seek  bond  for appearance from any person present in the court in exercise of its judicial discretion. The Section also provides that  aforesaid  power  is  not unrestricted and it can be exercised only  against  such  persons  for  whose appearance or arrest Bail Applications No.508/2011,  509/2011,  510/2011, 511/2011 & 512/2011 Page 21 of 34 the court is empowered to issue summons or warrants.  The  words  used  in  the Section are “may require such person to  execute  a  bond“  and  any  person present in the court. The user of word “may”  signifies  that  Section  88 Cr.P.C. is not mandatory and it is a matter of judicial discretion of the court. The word “any person” signifies that  the  power  of  the  court  defined under  Section  88  Cr.P.C.  is  not accused specific only, but it can be exercised  against  other  category  of persons  such  as  the  witness  whose presence the court may deem necessary for the purpose of inquiry or trial. Careful reading of Section 88 Cr.P.C. makes it evident that it is a general provision  defining  the  power  of  the court, but it does not provide how and in  what  manner  this  discretionary power is to be exercised. Petitioners are accused of having committed non- bailable  offences.  Therefore,  their case for bail falls within Section 437 of  the  Code  of  Criminal  Procedure which  is  the  specific  provision dealing  with  grant  of  bail  to  an accused  in  cases  of  non-bailable offences. Thus, on conjoint reading of Section  88  and  437  Cr.P.C.,  it  is

26 obvious that Section 88 Cr.P.C. is not an  independent  Section  and  it  is subject  to  Section  437  Cr.P.C. Therefore, I do not find merit in the contention  that  order  of  learned Special  Judge  refusing  bail  to  the petitioners is illegal being violation of Section 88 Cr.P.C.”

26. Another judgment which is relevant in this

context is judgment of Patna High Court in Dr.

Anand Deo Singh Vs. The State of Bihar & Ors.,

2000(2)  Patna  Law  Journal  Reports  686.  The

Patna  High  Court  had  occasion  to  consider

Section 88 Cr.P.C. where in Para 18, following

has been held:-

“18. In my considered view, Section 88 of the Code is an enabling provision, which  vests  a  discretion  in  the Magistrate  to  exercise  power  under said  Section  asking  the  person  to execute a bond for appearance only in bailable cases or in trivial cases and it cannot be resorted to in a case of serious offences. Section 436 of the Code itself provides that bond may be asked  for  only  in  cases  of  bailable offences.”

27. This Court had occasion to consider Section

91 of Cr.P.C. 1898, which was akin to present

27 Section 88 of 1973 Act, in Madhu Limaye & Anr.

Vs.  Ved  Murti  &  Ors.,  (1970)  3  SCC  739,

following observations were made in context of

Section 91:-

  “…………….In fact Section 91 applies to a person who is present in Court and is free  because  it  speaks  of  his  being bound over, to appear on another day before the Court. That shows that the person must be a free agent whether to appear or not. If the person is al- ready under arrest and in custody, as were the petitioners, their appearance depended  not  on  their  own  violation but on the violation of the person who had  their  custody.  This  section  was therefore inappropriate and the ruling cited  in  support  of  the  case  were wrongly  decided  as  was  held  by  the Special Bench……………….”  

28. Another judgment relied by the appellant is

judgment of Punjab & Haryana High Court in Arun

Sharma Vs. Union of India & Ors., 2016 (3) RCR

(Criminal) 883.  In the above case, the Punjab &

Haryana High Court was considering Section 88

Cr.P.C. read with Section 65 of Prevention of

Money  Laundering  Act.   In  the  above  context,

28 following has been observed in Para 11:-

“11.  On  the  same  principles,  in absence  of  anything  inconsistent  in PMLA with section 88 of Cr.P.C., when a  person  voluntarily  appears  before the Special Court for PMLA pursuant to issuance  of  process  vide  summons  or warrant,  and  offers  submission  of bonds  for  further  appearances  before the  Court,  any  consideration  of  his application for furnishing such bond, would  be  necessarily  governed  by section  88  of  the  Cr.P.C.  read  with section 65 of PMLA. Section 88 of the Cr.P.C. reads as follows-

"88.  Power  to  take  bond  for appearance.--When  any  person  for whose  appearance  or  arrest  the officer presiding in any Court is empowered  to  issue  a  summons  or warrant, is present in such Court, such  officer  may  require  such person to execute a bond, with or without  sureties,  for  his appearance  in  such  Court,  or  any other Court to which the case may be transferred for trial."

This  Section  88  (corresponding  to section 91 of Cr.P.C., 1898) would not apply qua a person whose appearance is not on his volition, but is brought in custody by the authorities as held by the Constitution Bench of the Hon'ble Supreme Court in Madhu Limaye v. Ved Murti, AIR 1971 SC 2481 wherein it was observed that-

"18.......In  fact  Section  91 applies to a person who is present

29 in  Court  and  is  free  because  it speaks of his being bound over, to appear  on  another  day  before  the Court. That shows that the person must  be  a  free  agent  whether  to appear  or  not.  If  the  person  is already  under  arrest  and  in custody,  as  were  the  petitioners, their  appearance  depended  not  on their  own  volition  but  on  the volition  of  the  person  who  had their custody......."

Thus, in a situation like this where the  accused  were  not  arrested  under section  19  of  PMLA  during investigations  and  were  not  produced in  custody  for  taking  cognizance, section 88 of Cr.P.C. shall apply upon appearance  of  the  accused  person  on his  own  volition  before  the  Trial Court  to  furnish  bonds  for  further appearances.”

29. The present is not a case where accused was

a free agent whether to appear or not.  He was

already issued non-bailable warrant of arrest as

well as proceeding of Sections 82 and 83 Cr.P.C.

had been initiated.  In this view of the matter

he was not entitled to the benefit of Section

88.  

30. In  the  Punjab  &  Haryana  case,  the  High

30 Court has relied on judgment of this Court in

Madhu Limaye Vs. Ved Murti (supra) and held that

Section  88  shall  be  applicable  since  accused

were  not  arrested  under  Section  19  of  PMLA

during  investigation  and  were  not  taken  into

custody for taking cognizance.  What the Punjab

& Haryana High Court missed, is that this Court

in the same paragraph had observed “that shows

that the person must be a free agent whether to

appear or not”.  When accused was issued warrant

of arrest to appear in the Court and proceeding

under  Sections  82  and  83  Cr.P.C.  has  been

initiated, he cannot be held to be a free agent

to appear or not to appear in the Court.  We

thus are of the view that the Punjab & Haryana

High Court has not correctly applied Section 88

in the aforesaid case.  

31. We thus conclude that the word ‘may’ used

in Section 88 confers a discretion on the Court

whether to accept a bond from an accused from a

person appearing in the Court or not.  The both

31 Special Judge, C.B.I. as well as the High Court

has given cogent reasons for not exercising the

power under Section 88 Cr.P.C. We do not find

any infirmity in the view taken by the Special

Judge,  C.B.I.  as  well  as  the  High  Court  in

coming to the conclusion that accused was not

entitled to be released on acceptance of bond

under Section 88 Cr.P.C. We thus do not find any

error  in  the  impugned  judgment  of  the  High

Court.  

32. Shri Mukul Rohtagi, learned senior counsel

for the appellant has placed reliance on recent

judgment  of  this  Court  dated  06.02.2018  in

Dataram Singh Vs. State of Uttar Pradesh & Anr.,

Criminal  Appeal  No.  227  of  2018.   Learned

counsel  for  the  appellant  submits  that  this

Court has elaborately explained principles for

grant or refusal of bail. This Court in Paras 6

and 7 made following observations:-

“6. The historical background of the provision  for  bail  has  been elaborately and lucidly explained in a

32 recent  decision  delivered  in  Nikesh Tarachand Shah v. Union of India, 2017 (13) SCALE 609 going back to the days of the Magna Carta. In that decision, reference was made to  Gurbaksh Singh Sibbia  v.  State  of  Punjab, (1980)  2 SCC 565 in which it is observed that it was held way back in  Nagendra v. King-Emperor, AIR  1924  Cal  476  that bail  is  not  to  be  withheld  as  a punishment. Reference was also made to Emperor  v.  Hutchinson, AIR  1931  All 356 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore  age-old  and  the  liberal interpretation  to  the  provision  for bail  is  almost  a  century  old,  going back to colonial days.

7.  However,  we  should  not  be understood to mean that bail should be granted  in  every  case.  The  grant  or refusal of bail is entirely within the discretion  of  the  judge  hearing  the matter and though that discretion is unfettered,  it  must  be  exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict  as  to  be  incapable  of compliance,  thereby  making  the  grant of bail illusory.”

33. In  the  facts  of  the  aforesaid  case,  the

Court held that the trial court as well as the

High  Court  ought  to  have  exercised  the

discretion  in  granting  the  bail  to  the

33 appellant.  This Court in above circumstances,

granted the bail to the appellant of that case.

There cannot be any dispute to the proposition

as laid down by this Court with regard to grant

or refusal of the bail, which are well settled.

The discretion to grant bail has to be exercised

judiciously  and  in  a  humane  manner  and

compassionately as has been laid down by this

Court in the above case.            

34. Shri Mukul Rohtagi, learned senior counsel

appearing for the appellant submits that since

the appellant has made a request to set him on

liberty by accepting the bond before the Special

Judge, C.B.I. as well may release the appellant

on bail.  He further submits that appellant is a

person with 60% disability.  He further submits

that the loss which was alleged in the First

Information Report is secured and this Court may

exercise its jurisdiction in granting the bail

to the appellant.

34

35. There are two reasons due to which we are

unable to accept the request of the appellant to

consider the case of bail of the appellant in

present proceeding. Firstly, this Court on two

earlier  occasions  had  granted  liberty  to  the

appellant to make an application for bail before

the trial court, the appellant has not filed any

application for bail before the trial court and

had insisted on releasing him on acceptance of

bond under Section 88 Cr.P.C. Secondly, in the

facts  of  this  case,  trial  court  is  to  first

consider  the  prayer  of  grant  of  bail  of  the

appellant. We, thus, are of the view that as and

when the appellant files a bail application, the

same  shall  be  considered  forthwith  by  trial

court  taking  into  consideration  his  claim  of

disability and other relevant grounds which are

urged or may be urged by the appellant before

it.

35

36. With  these  observations,  the  appeal  is

disposed of.  

..........................J. ( A.K. SIKRI )

..........................J. NEW DELHI,     ( ASHOK BHUSHAN ) February 23, 2018.