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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.  689   OF 2014 [Arising out of SLP (Crl.)No.1348 of 2014]

SUNDEEP KUMAR BAFNA                                  ....APPELLANT

vs

STATE OF MAHARASHTRA & ANR.                 …..RESPONDENT(S)

J U D G M E N T

VIKRAMAJIT SEN,J.   

1. Leave granted.

2. A neat legal nodus of ubiquitous manifestation and gravity has   arisen  

before  us.    It  partakes  the  character  of  a  general  principle  of  law with  

significance  sans  systems  and  States.   The  futility  of  the  Appellant’s  

endeavours to secure anticipatory bail having attained finality, he had once  

again knocked at the portals of the High Court of Judicature at Bombay, this  

time around for  regular  bail  under  Section 439 of  the Code of  Criminal  

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Procedure (CrPC), which was declined with the observations that it is the  

Magistrate whose jurisdiction has necessarily to be invoked and not of the  

High Court or even the Sessions Judge.    The legality of this conclusion is  

the gravemen of the appeal before us.   While declining to grant anticipatory  

bail  to the Appellant,  this Court had extended to him transient  insulation  

from arrest for a period of four weeks to enable him to apply for regular bail,  

even in the face of the rejection of his Special Leave Petition on 28.1.2014.  

This  course  was courted by him,  in  the  event  again  in  vain,  as  the bail  

application preferred by him under Section 439 CrPC has been dismissed by  

the  High  Court  in  terms  of  the  impugned  Order  dated  6.2.2014.    His  

supplications to the Bombay High Court were twofold; that the High Court  

may permit the petitioner to surrender to its  jurisdiction and secondly, to  

enlarge him on regular bail under Section 439 of the Code, on such terms  

and conditions as may be deemed fit and proper.

3. In the impugned Judgment, the learned Single Judge has opined that  

when the Appellant’s plea to surrender before the Court is accepted and he is  

assumed to be in its custody, the police would be deprived of getting his  

custody,  which  is  not  contemplated  by  law,  and  thus,  the  Appellant  “is  

required to be arrested or otherwise he has to surrender before the Court  

which  can  send  him  to  remand  either  to  the  police  custody  or  to  the  

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Magisterial custody and this can only be done under Section 167 of CrPC by  

the Magistrate and that  order cannot be passed at  the High Court level.”  

Learned Senior Counsel for the Appellant have fervidly assailed the legal  

correctness  of  this  opinion.    It  is  contended  that  the  Magistrate  is  not  

empowered to grant bail to the Appellant,  since he can be punished with  

imprisonment for life, as statutorily stipulated in Section 437(1) CrPC; CR  

No.290 of 2013 stands registered with P.S. Mahim for offences punishable  

under Sections 288, 304, 308, 336, 388 read with 34 and Section 120-B of  

IPC.   Learned Senior Counsel further contends that since the matter stands  

committed to Sessions, the Magistrate is denuded of all powers in respect of  

the said matter, for the reason that law envisages the commitment of a case  

and not of an individual accused.

4. While accepting the Preliminary Objection, the dialectic articulated in  

the impugned order is that law postulates that a person seeking regular bail  

must  perforce languish in the custody of  the concerned Magistrate  under  

Section 167 CrPC. The Petitioner had not responded to the notices/summons  

issued by the concerned Magistrate leading to the issuance of non-bailable  

warrants  against  him,  and  when  even  these  steps  proved  ineffectual  in  

bringing him before the Court, measures were set in motion for declaring  

him as a proclaimed offender under Section 82 CrPC.   Since this was not  

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the position obtaining in the case, i.e. it was assumed by the High Court that  

the Petitioner was not in custody, the application for bail under Section 439  

of CrPC was held to be not maintainable.    This conclusion was reached  

even though the petitioner was present in Court and had pleaded in writing  

that he be permitted to surrender to the jurisdiction of the High Court.   We  

shall abjure from narrating in minute detail the factual matrix of the case as  

it  is not essential to do so for deciding the issues that have arisen in the  

present Appeal.

Relevant Provisions in the CrPC Pertaining to Regular Bail:

5. The pandect providing for bail is Chapter XXXIII comprises Sections  

436 to 450 of the CrPC, of which Sections 437 and 439 are currently critical.  

Suffice it to state that Section 438 which deals with directions for grant of  

bail to persons apprehending arrest does not mandate either the presence of  

the applicant in Court or for his being in custody.    Section 437, inter alia,  

provides that if any person accused of, or suspected of the commission of  

any  non-bailable  offence  is  arrested  or  detained  without  warrant  by  an  

officer in charge of a police station or if such person appears or is brought  

before a Court other than the High Court or Court of Session, he may be  

released on bail in certain circumstances.     

6. For  facility  of  reference,  Sections  437 and 439,  both  covering the  

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grant  of  regular  bail  in  non-bailable  offences  are  reproduced  hereunder.  

Section 438 has been ignored because it is the composite provision dealing  

only with the grant of anticipatory bail.

“437.  When bail may be taken in case of non- bailable  offence.- (1) When any person accused of, or suspected of, the  commission of any non-bailable offence is arrested or detained  without  warrant  by an officer  in  charge  of  a  police station or  appears or is brought before a Court other than the High Court or  Court of Session, he may be released on bail, but –  

(i) such  person  shall  not  be  so  released  if  there  appear  reasonable grounds for believing that he has been guilty of an  offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a  cognizable offence and he had been previously convicted of an  offence  punishable  with  death,  imprisonment  for  life  or  imprisonment for seven years or more, or he had been previously  convicted  on  two  or  more  occasions  of  a  cognizable  offence  punishable  with imprisonment  for  three years  or  more but  not  less than seven years:  

Provided that the Court may direct that a person referred to  in clause (i) or clause (ii) be released on bail if such person is  under the age of sixteen years or is a woman or is sick or infirm:  

Provided  further  that  the  Court  may  also  direct  that  a  person referred to in clause (ii) be released on bail if it is satisfied  that it is just and proper so to do for any other special reason:  

Provided also that  the mere fact  that  an accused person  may  be  required  for  being  identified  by  witnesses  during  investigation shall not be sufficient ground for refusing to grant  bail if he is otherwise entitled to be released on bail and gives an  undertaking that he shall comply with such directions as may be  given by the Court:

Provided also that no person shall, if the offence alleged to  have  been  committed  by  him  is  punishable  with  death,  imprisonment for life, or  imprisonment for seven years or more,  be released on bail by the Court under this sub-section without  giving an opportunity of hearing to the Public Prosecutor.  (2) If  it  appears  to  such officer  or  Court  at  any stage  of  the  

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investigation, inquiry or trial, as the case may be, that there are  not  reasonable  grounds  for  believing  that  the  accused  has  committed a  non-bailable  offence,  but  that  there  are  sufficient  grounds  for  further  inquiry  into  his  guilt,  the  accused  shall,  subject  to  the  provisions  of  section  446A and  pending  such  inquiry, be released on bail, or at the discretion of such officer or  Court, on the execution by him of a bond without sureties for his  appearance as hereinafter provided.   (3) When a person accused or suspected of the commission of  an offence punishable with imprisonment which may extend to  seven years or more or of an offence under Chapter VI, Chapter  XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or  abetment  of,  or  conspiracy  or  attempt  to  commit,  any  such  offence, is released on bail  under sub- section (1) – the Court  shall impose the conditions –  

(a) that such person shall attend in accordance with the  conditions of the bond executed under this Chapter,  

(b)  that such person shall not commit an offence similar  to  the  offence  of  which  he  is  accused,  or  suspected,   of  the  commission of which he is suspected, and

(c) that such 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  or  tamper  with the  evidence, and may also impose, in the interests of justice, such  other conditions as it considers necessary.  (4)  An officer or a Court releasing any person on bail  under  sub-section (1) or sub- section (2), shall record in writing his or  its reasons or special reasons for so doing.  (5) Any Court which has released a person on bail under sub-  section (1) or sub- section (2), may, if it considers it necessary so  to  do,  direct  that  such  person  be  arrested  and commit  him to  custody. (6) If, in any case triable by a Magistrate, the trial of a person  accused of  any non-bailable offence is not concluded within a  period of sixty days from the first date fixed for taking evidence  in the case, such person shall, if he is in custody during the whole  of the said period, be released on bail to the satisfaction of the  Magistrate,  unless  for  reasons  to  be  recorded  in  writing,  the  Magistrate otherwise directs.

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(7) If, at any time after the conclusion of the trial of a person  accused  of  a  non-bailable  offence  and  before  judgment  is  delivered,  the  Court  is  of  opinion  that  there  are  reasonable  grounds for believing that the accused is not guilty of any such  offence, it shall release the accused, if he is in custody, on the  execution by him of a bond without sureties for his appearance to  hear judgment delivered.

439.   Special  powers  of  High  Court  or  Court  of  Session  regarding bail –   

(1) A High Court or Court of Session may direct- (a) that  any person accused of  an offence and in  

custody be released on bail, and if the offence is of the nature  specified  in  sub-section  (3)  of  section  437,  may  impose  any  condition  which  it  considers  necessary  for  the  purposes  mentioned in that sub-section;

(b) that  any  condition  imposed  by  a  Magistrate  when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall,  before granting bail  to a person who is accused of  an offence  which is triable exclusively by the Court of Session or which,  though not so triable, is punishable with imprisonment for life,  give notice of the application for bail to the Public Prosecutor  unless it is, for reasons to be recorded in writing, of the opinion  that it is not practicable to give such notice.  

(2) A High Court or Court of Session may direct that any  person  who  has  been  released  on  bail  under  this  Chapter  be  arrested and commit him to custody.”

7. Article 21 of the Constitution states that no person shall be deprived  

of his life or personal liberty except according to procedure established by  

law.   We are immediately reminded of three sentences from the Constitution  

Bench decision in P.S.R. Sadhanantham vs Arunachalam  (1980) 3 SCC 141,  

which we appreciate as poetry in prose -  “Article 21, in its sublime brevity,  

guards  human  liberty  by  insisting  on  the  prescription  of  procedure  

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established  by  law,  not  fiat  as  sine  qua  non for  deprivation  of  personal  

freedom.  And those procedures so established must be fair, not fanciful, nor  

formal nor flimsy, as laid down in Maneka Gandhi case.  So, it is axiomatic  

that  our Constitutional  jurisprudence mandates the State not  to deprive a  

person of his personal liberty without adherence to fair procedure laid down  

by  law”.   Therefore,  it  seems  to  us  that  constriction  or  curtailment  of  

personal  liberty  cannot  be  justified  by a  conjectural  dialectic.   The  only  

restriction allowed as a general principle of law common to all legal systems  

is the period of 24 hours post-arrest on the expiry of which an accused must  

mandatorily  be  produced  in  a  Court  so  that  his  remand  or  bail  can  be  

judicially considered.   

8. Some poignant particulars of Section 437 CrPC may be pinpointed.  

First,  whilst  Section 497(1) of  the old Code alluded to an accused being  

“brought before a Court”, the present provision postulates the accused being  

“brought before a Court other than the High Court or a Court of Session”  in  

respect  of the commission of any non-bailable offence.    As observed in  

Gurcharan Singh vs State (1978) 1 SCC 118, there is no provision in the  

CrPC dealing with the production of an accused before the Court of Session  

or the High Court.  But it must also be immediately noted that no provision  

categorically prohibits the production of an accused before either of these  

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Courts.    The  Legislature  could  have  easily  enunciated,  by  use  of  

exclusionary or exclusive terminology, that the superior Courts of Sessions  

and High Court are bereft of this jurisdiction or if they were so empowered  

under the Old Code now stood denuded thereof.   Our understanding is in  

conformity with Gurcharan Singh, as perforce it must.   The scheme of the  

CrPC plainly provides that bail will not be extended to a person accused of  

the  commission  of  a  non-bailable  offence  punishable  with  death  or  

imprisonment  for  life,  unless  it  is  apparent  to  such  a  Court  that  it  is  

incredible or beyond the realm of reasonable doubt that the accused is guilty.  

The enquiry of the Magistrate placed in this position would be akin to what  

is envisaged in State of Haryana vs Bhajan Lal, 1992 (Supp)1 SCC 335, that  

is, the alleged complicity of the accused should, on the factual matrix then  

presented or prevailing, lead to the overwhelming, incontrovertible and clear  

conclusion of his innocence.   The CrPC severely curtails the powers of the  

Magistrate while leaving that of the Court of Session and the High Court  

untouched and unfettered.    It  appears  to us that  this  is  the only logical  

conclusion that can be arrived at on a conjoint consideration of Sections 437  

and 439 of the CrPC.   Obviously, in order to complete the picture so far as  

concerns the powers and limitations thereto of the Court of Session and the  

High Court, Section 439 would have to be carefully considered.   And when  

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this is done, it will at once be evident that the CrPC  has placed an embargo  

against granting relief to an accused, (couched by us in the negative), if he is  

not in custody.   It seems to us that any persisting ambivalence or doubt  

stands dispelled by the proviso to this Section, which mandates only that the  

Public  Prosecutor  should  be  put  on  notice.    We  have  not  found  any  

provision in the CrPC   or elsewhere, nor have any been brought to our ken,  

curtailing the power of either of the superior Courts to entertain and decide  

pleas  for  bail.    Furthermore,  it  is  incongruent  that  in  the  face  of  the  

Magistrate  being  virtually  disempowered  to  grant  bail  in  the  event  of  

detention or arrest without warrant of any person accused of or suspected of  

the  commission  of  any  non-bailable  offence  punishable  by  death  or  

imprisonment for life, no Court is enabled to extend him succour.      Like  

the science of  physics,  law also abhors the existence of  a vacuum, as is  

adequately adumbrated by the common law maxim, viz. ‘where there is a  

right there is a remedy’.   The universal right of personal liberty emblazened  

by Article 21 of our Constitution, being fundamental to the very existence of  

not  only to a citizen of  India but to every person,  cannot be trifled with  

merely on a presumptive plane.   We should also keep in perspective the fact  

that  Parliament  has  carried  out  amendments  to  this  pandect  comprising  

Sections  437  to  439,  and,  therefore,  predicates  on  the  well  established  

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principles of interpretation of statutes that what is not plainly evident from  

their reading, was never intended to be incorporated into law.  Some salient  

features of these provisions are that whilst Section 437 contemplates that a  

person  has  to  be  accused  or  suspect  of  a  non-bailable  offence  and  

consequently arrested or detained without warrant, Section 439 empowers  

the Session Court or High Court to grant bail if such a person is in custody.  

The difference of language manifests the sublime differentiation in the two  

provisions,  and,  therefore,  there  is  no  justification  in  giving  the  word  

‘custody’ the  same  or  closely  similar  meaning  and  content  as  arrest  or  

detention.   Furthermore, while Section 437 severally curtails the power of  

the Magistrate to grant bail in context of the commission of  non-bailable  

offences  punishable  with  death  or  imprisonment  for  life,  the  two higher  

Courts have only the procedural requirement of giving notice of the Bail  

application to the Public Prosecutor, which requirement is also ignorable if  

circumstances  so  demand.   The  regimes  regulating  the  powers  of  the  

Magistrate on the one hand and the two superior Courts are decidedly and  

intentionally not identical, but vitally and drastically dissimilar.   Indeed, the  

only complicity that can be contemplated is the conundrum of ‘Committal of  

cases to the Court of Session’ because of a possible hiatus created by the  

CrPC.    

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Meaning of Custody:

9. Unfortunately,  the  terms  ‘custody’,  ‘detention’ or  ‘arrest’ have  not  

been  defined  in  the  CrPC,  and  we  must  resort  to  few  dictionaries  to  

appreciate  their  contours  in  ordinary  and  legal  parlance.   The  Oxford  

Dictionary  (online) defines  custody  as imprisonment,  detention,  

confinement,  incarceration,  internment,  captivity;  remand,  duress,  and  

durance.    The Cambridge Dictionary (online) explains ‘custody’ as the state  

of  being  kept in prison,  especially while waiting to  go  to court for trial.  

Longman Dictionary (online) defines ‘custody’ as ‘when someone is kept in  

prison until they go to court, because the police think they have committed a  

crime’.    Chambers  Dictionary  (online) clarifies  that  custody  is ‘the  

condition  of  being  held  by  the  police;  arrest  or  imprisonment;  to  take  

someone  into  custody to  arrest  them’.   Chambers’  Thesaurus supplies  

several synonyms, such as detention, confinement, imprisonment, captivity,  

arrest, formal incarceration.   The  Collins  Cobuild  English  Dictionary  for  

Advance Learners states in terms of that someone who is in custody or has  

been taken into custody or has been arrested and is being kept in prison until  

they get tried in a court or if someone is being held in a particular type of  

custody, they are being kept in a place that is similar to a prison.     The  

Shorter Oxford English Dictionary postulates the presence of confinement,  

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imprisonment, durance and this feature is totally absent in the factual matrix  

before  us.    The  Corpus  Juris  Secundum under  the  topic  of  ‘Escape  &  

Related Offenses; Rescue’ adumbrates that ‘Custody, within the meaning of  

statutes defining the crime, consists of the detention or restraint of a person  

against his or her will, or of the exercise of control over another to confine  

the other person within certain physical limits or a restriction of ability or  

freedom of movement.’ This is how ‘Custody’ is dealt with in Black’s Law  

Dictionary, (9th ed. 2009):-

“Custody-  The care and control  of  a  thing or  person.    The  keeping, guarding, care, watch, inspection, preservation or security  of a thing, carrying with it  the idea of the thing being within the  immediate personal care and control of the person to whose custody  it is subjected.   Immediate charge and control, and not the final,  absolute  control  of  ownership,  implying   responsibility  for  the  protection  and  preservation  of  the  thing  in  custody.    Also  the  detainer of a man’s person by virtue of lawful process or authority.

The term is very elastic and may mean actual imprisonment or  physical detention or mere power, legal or physical, of imprisoning  or  of  taking  manual  possession.    Term “custody”  within  statute  requiring  that  petitioner  be  “in  custody” to  be  entitled  to  federal  habeas  corpus  relief  does  not  necessarily  mean  actual  physical  detention in jail or prison but rather is synonymous with restraint of  liberty.   U. S. ex rel. Wirtz v. Sheehan, D.C.Wis, 319 F.Supp. 146,  147.     Accordingly,  persons  on  probation  or  released  on  own  recognizance  have  been  held  to  be  “in  custody”  for  purposes  of  habeas corpus proceedings.”

10. A perusal of the dictionaries thus discloses that the concept that  is  

created is the controlling of a person’s liberty in the course of a criminal  

investigation, or curtailing in a substantial or significant manner a person’s  

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freedom of action.  Our attention has been drawn, in the course of  Rejoinder  

arguments to the judgment of the Full Bench of the High Court of Madras in  

Roshan Beevi vs Joint Secretary 1984(15) ELT 289 (Mad), as also to the  

decision of the Court in Directorate of Enforcement vs  Deepak Mahajan  

(1994)  3  SCC  440;  in  view  of  the  composition  of  both  the  Benches,  

reference to the former is otiose.     Had we been called upon to peruse  

Deepak  Mahajan earlier,  we  may  not  have  considered  it  necessary  to  

undertake  a  study  of  several  Dictionaries,  since  it  is  a  convenient  and  

comprehensive  compendium  on  the  meaning  of  arrest,  detention  and  

custody.

11. Courts in Australia, Canada, U.K. and U.S. have predicated in great  

measure, their decisions on paragraph 99 from Vol. II Halsbury’s Laws of  

England  (4th Edition)  which  states  that  –  “Arrest  consists  of  the  actual  

seizure or touching of a person’s body with a view to his detention.   The  

mere  pronouncing  of  words  of  arrest  is  not  an  arrest,  unless  the  person  

sought  to  be arrested  submits  to  the  process  and goes with the arresting  

officer”.  The  US  Supreme  Court  has  been  called  upon  to  explicate  the  

concept of custody on a number of occasions, where, coincidentally, the plea  

that was proffered was the failure of the police to administer the Miranda  

caution,  i.e.  of  apprising  the  detainee  of  his  Constitutional  rights.   In  

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Miranda vs Arizona 384 US 436 (1966), custodial interrogation has been  

said  to  mean  “questioning  initiated  by  law  enforcement  officers  after  a  

person has been taken into custody or otherwise deprived of his freedom of   

action in any significant way”. In Minnesota vs Murphy 465 US 420 (1984),  

it  was opined by the U.S. Supreme Court that since “no formal arrest or  

restraint  on  freedom of  movement  of  the  degree  associated  with  formal  

arrest” had transpired, the Miranda doctrine had not become operative.  In R.  

vs Whitfield 1969 CareswellOnt  138, the Supreme Court  of  Canada was  

called upon to decide whether the police officer, who directed the accused  

therein to stop the car and while seizing him by the shirt said “you are under  

arrest:”, could be said to have been “custodially arrested” when the accused  

managed to sped away.   The plurality of the Supreme Court declined to  

draw any distinction between an arrest amounting to custody and a mere or  

bare arrest and held that the accused was not arrested and thus could not  

have been guilty of  “escaping from lawful  custody”.   More recently,  the  

Supreme Court of Canada has clarified in R. vs Suberu [2009] S.C.J.No.33  

that detention transpired only upon the interaction having the consequence  

of a significant deprivation of liberty.   Further, in Berkemer vs McCarty 468  

U.S. 420 (1984), a roadside questioning of a motorist detained pursuant to a  

routine  traffic  stop  was  not  seen  as  analogous  to  custodial  interrogation  

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requiring adherence to Miranda rules.

12. It appears to us from the above analysis that custody, detention and  

arrest are sequentially cognate concepts.   On the occurrence of a crime, the  

police is likely to carry out the investigative interrogation of a person, in the  

course of which the liberty of that individual is not impaired, suspects are  

then preferred by the police to undergo custodial interrogation during which  

their liberty is impeded and encroached upon.  If grave suspicion against a  

suspect emerges, he may be detained in which event his liberty is seriously  

impaired.   Where the investigative agency is of the opinion that the detainee  

or person in custody is guilty of the commission of a crime, he is charged of  

it and thereupon arrested.   In  Roshan Beevi, the Full Bench of the High  

Court  of  Madras,  speaking through S.  Ratnavel  Pandian  J,  held  that  the  

terms ‘custody’ and ‘arrest’ are not synonymous even though in every arrest  

there is a deprivation of liberty is custody but not vice versa.   This thesis is  

reiterated  by  Pandian  J  in  Deepak  Mahajan by  deriving  support  from  

Niranjan Singh vs Prabhakar Rajaram Kharote  (1980) 2 SCC 559.   The  

following passages from Deepak Mahajan are worthy of extraction:-

“48. Thus the Code gives power of arrest not only to a police  officer and a Magistrate but also under certain circumstances or  given situations to private persons. Further, when an accused per- son appears before a Magistrate or surrenders voluntarily, the Mag- istrate is empowered to take that accused person into custody and  deal with him according to law.  Needless to emphasize that the ar-

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rest of a person is a condition precedent for taking him into judicial  custody thereof.  To put it differently, the taking of the person  into judicial custody is followed after the arrest of the person  concerned by the Magistrate on appearance or surrender.  It  will be appropriate, at this stage, to note that in every arrest, there  is custody but not vice versa and that both the words ‘custody’ and  ‘arrest’ are not synonymous terms. Though ‘custody’ may amount  to  an  arrest  in  certain  circumstances  but  not  under  all  circum- stances.  If  these  two terms are  interpreted as  synonymous,  it  is  nothing but an ultra legalist interpretation which if under all cir- cumstances accepted and adopted, would lead to a startling anom- aly resulting in serious consequences, vide Roshan Beevi.

49. While interpreting the expression ‘in custody’ within the  meaning of Section 439 CrPC, Krishna Iyer,  J.  speaking for the  Bench in Niranjan Singh v. Prabhakar Rajaram Kharote  observed  that: (SCC p. 563, para 9)

“He can be in custody not merely when the police arrests him,  produces him before a Magistrate and gets a remand to judicial or  other custody.  He can be stated to be in judicial custody when  he surrenders before the court and submits to its directions.”  (emphasis added)

If the third sentence of para 48 is discordant to Niranjan Singh, the view of  

the  coordinate  Bench  of  earlier  vintage  must  prevail,  and  this  discipline  

demands  and  constrains  us  also  to  adhere  to  Niranjan  Singh;  ergo,  we  

reiterate that a person is in custody no sooner he surrenders before the police  

or  before  the  appropriate  Court.    This  enunciation  of  the  law  is  also  

available in three decisions in which Arijit Pasayat J spoke for the 2-Judge  

Benches, namely (a) Nirmal Jeet Kaur vs State of M.P. (2004) 7 SCC 558  

and  (b)  Sunita  Devi  vs  State  of  Bihar  (2005)  1  SCC 608,  and (c)  Adri  

Dharan Das vs State of West Bengal, (2005) 4 SCC 303,  where the Co-

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equal Bench has opined that since an accused has to be present in Court on  

the moving of a bail  petition under Section 437, his physical  appearance  

before the Magistrate  tantamounts to  surrender.    The view of  Niranjan  

Singh (see extracted para 49 infra) has been followed in State of Haryana vs  

Dinesh  Kumar (2008)  3  SCC  222.   We  can  only  fervently  hope  that  

member of Bar will desist from citing several cases when all that is required  

for their purposes is to draw attention to the precedent that holds the field,  

which in the case in hand, we reiterate is Niranjan Singh.

Rule of Precedent &   Per Incuriam  :   

13. The Constitution Bench in Union of India vs Raghubir Singh, 1989  

(2)  SCC  754,  has come to the conclusion extracted below:    

“27. What then should be the position in regard to the effect of  the law pronounced by a Division Bench in relation to a case  raising the same point subsequently before a Division Bench of a  smaller number of Judges? There is no constitutional or statutory  prescription in the matter, and the point is governed entirely by  the practice in India of the courts sanctified by repeated affirma- tion over a century of time. It cannot be doubted that in order to  promote consistency and certainty in the law laid down by a su- perior Court, the ideal condition would be that the entire Court  should sit in all cases to decide questions of law, and for that rea- son the Supreme Court of the United States does so. But having  regard  to  the  volume of  work demanding the  attention  of  the  Court, it has been found necessary in India as a general rule of  practice and convenience that the Court should sit in Divisions,  each Division being constituted of Judges whose number may be  determined by the exigencies of judicial need, by the nature of  the case including any statutory mandate relative thereto, and by  such other considerations which the Chief Justice, in whom such  

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authority devolves by convention, may find most appropriate. It  is in order to guard against the possibility of inconsistent deci- sions  on points  of  law by different  Division  Benches  that  the  Rule has been evolved, in order to promote consistency and cer- tainty in the development of the law and its contemporary status,  that the statement of the law by a Division Bench is considered  binding on a Division Bench of  the same or lesser number of  Judges. This principle has been followed in India by several gen- erations of Judges. …”  

14. This ratio of Raghubir Singh was applied once again by the Constitu-

tion Bench in Chandra Prakash v. State of U.P.: AIR 2002 SC 1652.   We  

think it instructive to extract the paragraph 22 from Chandra Prakash in or-

der to underscore that  there is a consistent  and constant  judicial  opinion,  

spanning across decades, on this aspect of jurisprudence:

“Almost similar is the view expressed by a recent judgment  of a five-Judge Bench of this Court in Parija’s case (supra).   In  that case, a Bench of  two learned Judges doubted the correctness  of the decision a Bench of three learned Judges, hence, directly re- ferred the matter to a Bench of five learned Judges for reconsidera- tion.   In such a situation, the five-Judge Bench held that judicial  discipline  and propriety  demanded that  a  Bench of  two learned  Judges  should  follow the  decision  of  a  Bench  of  three  learned  Judges.  On this basis, the five-Judge Bench found fault with the  reference made by the two-Judge Bench based on the doctrine of  binding precedent.”

15. It  cannot  be  over-emphasised  that  the  discipline  demanded  by  a  

precedent  or  the  disqualification  or  diminution  of  a  decision  on  the  

application of the per incuriam rule is of great importance, since without it,  

certainty of law, consistency of rulings and comity of Courts would become  

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a costly casualty.   A decision or judgment can be per incuriam any provision  

in a statute, rule or regulation, which was not brought to the notice of the  

Court.   A decision or judgment can also be per incuriam if it is not possible  

to reconcile its ratio with that of a previously pronounced judgment of a Co-

equal  or  Larger  Bench;  or  if  the  decision  of  a  High  Court  is  not  in  

consonance with the views of this Court.  It must immediately be clarified  

that the  per incuriam rule is strictly and correctly applicable to the  ratio  

decidendi   and not to obiter  dicta.   It is often encountered in High Courts  

that two or more mutually irreconcilable decisions of the Supreme Court are  

cited at the Bar.   We think that the inviolable recourse is to apply the earliest  

view as the succeeding ones would fall in the category of per incuriam.    

Validation of   Ratio   in Niranjan Singh:   

16. We must now discuss in detail the decision of  a Two-Judge Bench in  

Rashmi Rekha Thatoi vs State of Orissa, (2012) 5 SCC 690,  for the reason  

that  in  the  impugned  Order  the  Single  Judge  of  the  High  Court  has  

proclaimed, which word we used intentionally, that  Niranjan Singh is  per  

incuriam.    The  ‘chronology  of  cases’  mentioned  in  Rashmi  Rekha  

elucidates  that  there  is  only  one  judgment  anterior  to  Niranjan  Singh,  

namely, Balchand Jain vs State of M.P. (1976) 4 SCC 572, which along with  

the  Constitution  Bench  decision  in  Gurbaksh  Singh  Sibbia,  intrinsically  

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concerned  itself  only  with  anticipatory  bail.    It  is  necessary  to  give  a  

salutary clarion caution to all Courts, including High Courts, to be extremely  

careful and circumspect in concluding a judgment of the Supreme Court to  

be   per incuriam.   In the present case, in the impugned Order the learned  

Single Judge appears to have blindly followed the incorrect and certainly  

misleading editorial note in the Supreme Court Reports without taking the  

trouble  of  conscientiously  apprising  himself  of  the  context  in  which  

Rashmi Rekha appears to hold Niranjan Singh per incuriam, and equally  

importantly,  to  which  previous  judgment.   An  earlier  judgment  cannot  

possibly be seen as per incuriam a later judgment as the latter if numerically  

stronger only then it would overrule the former.  Rashmi Rekha dealt with  

anticipatory bail under Section 438  and only tangentially with Sections 437  

and 439 of the CrPC, and while deliberations and observations found in this  

clutch of cases may not be circumscribed by the term obiter dicta, it must  

concede to any judgment directly on point.   In the factual matrix before us,  

Niranjan  Singh is  the  precedent  of  relevance  and  not  Gurbaksh  Singh  

Sibbia or any other decision where the scope and sweep of anticipatory bail  

was at the fulcrum of the conundrum.   

17. Recently, in  Dinesh Kumar, this conundrum came to be considered  

again.   This Court adhered to the Niranjan Singh dicta (as it was bound to  

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do),  viz.  that  a  person  can  be  stated  to  be  in  judicial  custody  when  he  

surrendered  before  the  Court  and  submits  to  its  directions.   We  further  

regretfully observe that the impugned Judgment is repugnant to the analysis  

carried out by two coordinate Benches of the High Court of Bombay itself,  

which were duly cited on behalf of the Appellant.   The first one is reported  

as Balkrishna Dhondu Rani vs Manik Motiram Jagtap 2005 (Supp.) Bom  

C.R.(Cri) 270 which applied  Niranjan Singh; the second is by a different  

Single Bench, which correctly applied the first.   In the common law system,  

the purpose of precedents is to impart predictability to law, regrettably the  

judicial indiscipline displayed in the impugned Judgment, defeats it.   If the  

learned Single Judge who had authored the impugned Judgment irrepressibly  

held divergent opinion and found it unpalatable, all that he could have done  

was to  draft  a  reference  to  the Hon’ble  Chief  Justice  for  the purpose of  

constituting a larger Bench; whether or not to accede to this request remains  

within the discretion of the Chief Justice.  However, in the case in hand, this  

avenue could also not have been traversed since Niranjan Singh binds not  

only Co-equal Benches of the Supreme Court but certainly every Bench of  

any High Court of India.   Far from being per incuriam, Niranjan Singh has  

metamorphosed  into  the  structure  of  stare  decisis,  owing  to  it  having  

endured over two score years of consideration, leading to  the position that  

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even Larger Benches of this Court should hesitate to remodel its ratio.    

18. It will also be germane to briefly cogitate on the fasciculous captioned  

“Section 438 of the Code of Civil Procedure, as amended by the Code of  

Criminal Procedure (Amendment) Act, 2005 of the 203rd Report of the Law  

Commission.   Although, the Law Commission was principally focused on  

the parameters of anticipatory bail, it had reflected on Niranjan Singh, and,  

thereafter, observed in paragraph 6.3.23 that “where a person appears before  

the Court in compliance with any Court’s order and surrenders himself to the  

Court’s directions or  control,  he may be granted regular bail,  since he is  

already under restraint.   The provisions relating to the anticipatory bail may  

not  be  attracted  in  such  a  case”.   An  amendment  was  proposed  to  the  

provisions vide CrPC (Amendment) Act, 2005 making the presence of the  

applicant seeking anticipatory bail obligatory at the time of final hearing of  

the application for enlargement on bail.  The said amendment has not been  

notified  yet  and  kept  in  abeyance  because  of  two  reasons.   Firstly,  the  

amendment  led to widespread agitation by the lawyers fraternity  since it  

would virtually enable the police to immediately arrest an accused in the  

event the Court declined to enlarge the accused on bail.  Secondly, in the  

perception of the Law Commission, it would defeat the very purpose of the  

anticipatory  bail.   The  conclusion  of  the  Law  Commission,  in  almost  

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identical  words  to  those  extracted  above  are  that:  “when  the  applicant  

appears in the Court in compliance of the Court’s order and is subjected to  

the Court’s directions, he may be viewed as in Court’s custody and this may  

render the relief  of  anticipatory bail  infructuous”.   Accordingly,  the Law  

Commission has recommended omission of sub-section (1-B) of Section 438  

CrPC.   

19. The Appellant had relied on  Niranjan Singh vs Prabhakar Rajaram  

Kharote  (1980) 2 SCC 559, before the High Court as well as before us.   A  

perusal of the impugned Order discloses that the learned Single Judge was of  

the  mistaken  opinion  that  Niranjan  Singh was  per  incuriam,  possibly  

because of an editorial error in the reporting of the later judgment in Rashmi  

Rekha  Thatoi vs State of Orissa (2012) 5 SCC 690.  In the latter decision  

the  curial  assault  was  to  the  refusal  to  grant  of  anticipatory  bail  under  

Section 438(1) CrPC, yet nevertheless enabling him to surrender before the  

Sub Divisional  Magistrate and thereupon to be released on bail.    In the  

appeal in hand this issue is not in focus;  the kernel of the conundrum before  

us is the meaning to be ascribed to the concept of  custody in Section 439  

CrPC, and a careful scrutiny  of Rashmi Rekha will disclose that it does not  

even purport  to or  tangentially  intend to  declare  Niranjan Singh  as  per  

incuriam.   Any remaining doubt would be dispelled on a perusal of Ranjit  

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Singh  vs  State  of  M.P,  where  our  esteemed  Brother  Dipak  Misra  has  

clarified that  Rashmi Rekha concerned itself only with anticipatory bail.  

The impugned Order had therefore to remain in complete consonance with  

Niranjan Singh.    It needs to be clarified that paragraph 14 of  Sunita Devi  

vs  State  of  Bihar  (2005)  1  SCC  608,  extracts  verbatim  paragraph  7  of  

Niranjan Singh, without mentioning  so.   The annals of the litigation in  

Niranjan Singh are that pursuant to a private complaint under Section 202  

CrPC, the concerned Magistrate issued non-bailable warrants in respect of  

the accused, and subsequently while refusing bail to them had neglected to  

contemporaneously cause them to be taken into custody.  In that interregnum  

or hiatus, the accused moved the Sessions Court which granted them bail  

albeit  on certain terms which the High Court  did not interfere therewith.  

This Court,  speaking through Krishna Iyer J  elucidated the law in these  

paragraphs:   

“6. Here the respondents were accused of offences but were  not in  custody, argues the petitioner so no bail, since this basic  condition of  being in jail  is  not  fulfilled.  This  submission has  been rightly rejected by the courts below. We agree that, in one  view, an outlaw cannot ask for the benefit  of law and he who  flees justice cannot claim justice. But here the position is differ- ent. The accused were not absconding but had appeared and sur- rendered before the Sessions Judge.  Judicial  jurisdiction arises  only when persons are already in custody and seek the process of  the court to be enlarged. We agree that no person accused of an  offence can move the court for bail under Section 439 CrPC un- less he is in custody.

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7. When is a person in custody, within the meaning of Section  439 CrPC? When he is in duress either because he is held by the  investigating agency or other police or allied authority or is under  the control of the court having been remanded by judicial order,  or having offered himself to the court’s jurisdiction and submitted  to its orders by physical presence. No lexical dexterity nor prece- dential  profusion is needed to come to the realistic conclusion  that he who is under the control of the court or is in the physical  hold of an officer with coercive power is in custody for the pur- pose of Section 439. This word is of elastic semantics but its core  meaning  is  that  the  law has  taken  control  of  the  person.  The  equivocatory  quibblings  and  hide-and-seek  niceties  sometimes  heard in court that the police have taken a man into informal cus- tody but not arrested him, have detained him for interrogation but  not taken him into formal custody and other like terminological  dubieties  are  unfair  evasions  of  the  straightforwardness  of  the  law. We need not dilate on this shady facet here because we are  satisfied that the accused did physically submit before the Ses- sions Judge and the jurisdiction to grant bail thus arose.  

8. Custody, in the context of Section 439, (we are not, be it  noted, dealing with anticipatory bail under Section 438) is physi- cal control or at least physical presence of the accused in court  coupled  with  submission  to  the  jurisdiction  and  orders  of  the  court.

9. He can be in custody not merely when the police arrests  him, produces him before a Magistrate and gets a remand to judi- cial or other custody.  He can be stated to be in judicial custody  when he surrenders before the court and submits to its direc- tions.  In the present case, the police officers applied for bail be- fore a Magistrate who refused bail and still the accused, without  surrendering before the Magistrate, obtained an order for stay to  move the Sessions Court. This direction of the Magistrate was  wholly irregular and maybe, enabled the accused persons to cir- cumvent the principle of Section 439 CrPC. We might have taken  a serious view of such a course, indifferent to mandatory provi- sions, by the subordinate magistracy but for the fact that in the  present case the accused made up for it by surrender before  the Sessions Court. Thus, the Sessions Court acquired jurisdic- tion to consider the bail application. It could have refused bail  and remanded the accused to custody, but, in the circumstances  

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and for the reasons mentioned by it, exercised its jurisdiction in  favour of grant of bail.  The High Court added to the conditions  subject to which bail was to be granted and mentioned that the  accused had submitted to the custody of the court. We, therefore,  do not proceed to upset the order on this ground. Had the circum- stances been different we would have demolished the order for  bail. We may frankly state that had we been left to ourselves we  might not have granted bail but, sitting under Article 136, do not  feel that we should interfere with a discretion exercised by the  two courts below.”                                                    ( Emphasis  added by us)

It should not need belabouring that High Courts must be most careful and  

circumspect  in  concluding  that  a  decision  of  a  superior  Court  is  per  

incuriam.   And here, palpably without taking the trouble of  referring to and  

reading the precedents alluded to, casually accepting to be correct a careless  

and incorrect editorial note, the Single Judge has done exactly so.  All the  

cases  considered  in  Rashmi  Rekha including  the  decision  of the  

Constitution Bench in Gurbaksh Singh Sibbia vs State of Punjab (1980) 2  

SCC 565, concentrated on the contours and circumference of anticipatory  

bail,  i.e. Section 438.    We may reiterate that the Appellant’s prayer for  

anticipatory bail had already been declined by this Court, which is why he  

had no alternative but to apply for regular bail.   Before we move on we shall  

reproduce the following part of paragraph 19 of  Sibbia as it has topicality:-

“19 …  Besides,  if  and when the occasion arises,  it  may be  possible for the prosecution to claim the benefit of Section 27  of the Evidence Act in regard to a discovery of facts made in  

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pursuance of information supplied by a person released on bail  by invoking the principles stated by this Court in State of U.P.  v. Deoman Upadhyaya to the effect that when a person not in  custody approaches a police officer investigating an offence and  offers to give information leading to the discovery of  a fact,  having a bearing on the charge which may be made against him,  he may appropriately be deemed so have surrendered himself to  the police.   The broad foundation of this rule is stated to be that  Section  46  of  the  Code  of  Criminal  Procedure  does  not  contemplate any formality before a person can be said to be  taken in custody: submission to the custody by word or action  by a person is sufficient.   For similar reasons, we are unable to  agree  that  anticipatory  bail  should  be  refused if  a  legitimate  case for the remand of the offender to the police custody under  Section 167(2) of  the Code is made out by the investigating  agency.”

20. In this  analysis,  the opinion in the impugned Judgment  incorrectly  

concludes that the High Court is bereft or devoid of power to jurisdiction  

upon a petition which firstly pleads surrender and, thereafter, prays for bail.  

The High Court could have perfunctorily taken the Appellant into its custody  

and then proceeded with the perusal of the prayer for bail; in the event of its  

coming to the conclusion that sufficient grounds had not been disclosed for  

enlargement on bail, necessary orders for judicial or police custody could  

have been ordained.   A Judge is expected to perform his onerous calling  

impervious of any public pressure that may be brought to bear on him.

The Conundrum of Cognizance, Committal & Bail

21. We have already noted in para 8 the creation by the CrPC of a hiatus  

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between the cognizance of an offence by the Magistrate and the committal  

by him of that offence to the Court of Session.   Section 190 contemplates  

the cognizance of an offence by a Magistrate in any of the following four  

circumstances: (i) upon receiving a complaint of facts; or (ii) upon a police  

report of such facts; or (iii) upon information received from any person other  

than  a  police  officer,  or  (iv)  upon  the  Magistrate’s  own  knowledge.  

Thereafter,  Section  193  proscribes  the  Court  of  Session  from  taking  

cognizance of any offence, as a Court of original jurisdiction, unless the case  

has been committed to it by a Magistrate; its Appellate jurisdiction is left  

untouched.    Chapter XVI makes it amply clear that a substantial period  

may  inevitably  intervene  between  a  Magistrate  taking  cognizance  of  an  

offence  triable  by  Sessions  and  its  committal  to  the  Court  of  Session.  

Section 204 casts the duty on a Magistrate to issue process; Section 205  

empowers him to dispense with personal attendance of accused; Section 206  

permits Special summons in cases of petty offence; Sections 207 and 208  

obligate  the Magistrate  to  furnish  to  the accused,  free of  cost,  copies  of  

sundry documents mentioned therein; and, thereafter, under Section 209 to  

commit  the  case  to  Sessions.   What  is  to  happen to  the  accused in  this  

interregnum; can his liberty be jeopardized! The only permissible restriction  

to personal freedom, as a universal legal norm, is the arrest or detention of  

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an accused for a reasonable period of 24 hours.   Thereafter, the accused  

would  be  entitled  to  seek  before  a  Court  his  enlargement  on  bail.  In  

connection with serious offences,  Section 167 CrPC contemplates that an  

accused  may  be  incarcerated,  either  in  police  or  judicial  custody,  for  a  

maximum of 90 days if the Charge Sheet has not been filed.   An accused  

can and very often does remain bereft of his personal liberty for as long as  

three months and law must enable him to seek enlargement on bail in this  

period.   Since  severe  restrictions  have  been  placed  on  the  powers  of  a  

Magistrate to grant bail, in the case of an offence punishable by death or for  

imprisonment for life, an accused should be in a position to move the Courts  

meaningfully  empowered  to  grant  him succour.   It  is  inevitable  that  the  

personal freedom of an individual would be curtailed even before he can  

invoke  the  appellate  jurisdiction  of  Sessions  Judge.   The  Constitution  

therefore requires that a pragmatic, positive and facilitative interpretation be  

given  to  the  CrPC  especially  with  regard  to  the  exercise  of  its  original  

jurisdiction by the Sessions Court.    We are unable to locate any provision in  

the CrPC which prohibits an accused from moving the Court of Session for  

such a relief except, theoretically, Section 193 which also only prohibits it  

from taking cognizance of  an offence as a Court  of  original  jurisdiction.  

This embargo does not prohibit the Court of Session from adjudicating upon  

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a plea for bail.  It appears to us that till the committal of case to the Court of   

Session, Section 439 can be invoked for the purpose of pleading for bail.   If  

administrative difficulties are encountered, such as, where there are several  

Additional Session Judges, they can be overcome by enabling the accused to  

move the Sessions Judge, or by further empowering the Additional Sessions  

Judge  hearing  other  Bail  Applications  whether  post  committal  or  as  the  

Appellate  Court,  to  also  entertain  Bail  Applications  at  the  pre-committal  

stage.   Since the Magistrate is completely barred from granting bail to a  

person accused even of an offence punishable by death or imprisonment for  

life, a superior Court such as Court of Session, should not be incapacitated  

from considering a bail application especially keeping in perspective that its  

powers are comparatively unfettered under Section 439 of the CrPC.   

22. In the case in hand, we need not dwell further on this question since  

the Appellant has filed an application praying, firstly, that he be permitted to  

surrender to the High Court and secondly, for his plea to be considered for  

grant of bail by the High Court.   We say this because there are no provisions  

in  the  CrPC  contemplating  the  committal  of  a  case  to  the  High  Court,  

thereby  logically  leaving  its  powers  untrammelled.     There  are  no  

restrictions on the High Court to entertain an application for bail provided  

always the accused is in custody, and this position obtains as soon as the  

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accused actually surrenders himself to the Court.   Reliance on R vs Evans,  

(2012) 1 WLR 1192, by learned Senior Counsel for the respondents before  

us  is  misplaced,  since  on  its  careful  reading,  the  facts  are  totally  

distinguishable  inasmuch  as  the  accused  in  that  case  had  so  engineered  

events  as  not  to  be available  in  persona in  the Court  at  the time of  the  

consideration  of  his  application  for  surrender.      The  Court  of  Appeal  

observed  that  they “do not  agree  that  reporting  to  the  usher  amounts  to  

surrender”. The Court in fact supported the view that surrender may also be  

accomplished  by  the  commencement  of  any  hearing  before  the  Judge,  

however brief, where the accused person is formally identified and plainly  

would  overtly  have  subjected  himself  to  the  control  of  the  Court.  

Incontrovertibly, at the material time the Appellant was corporeally present  

in  the  Bombay  High Court  making  Evans applicable  to  the  case  of  the  

Appellant rather than the case of the respondent.   A further singularity of the  

present  case  is  that  the offence has  already been committed to  Sessions,  

albeit,  the  accused/Appellant  could  not  have  been  brought  before  the  

Magistrate.   It is beyond cavil “that a Court takes cognizance of an offence  

and  not  an  offender”  as  observed in  Dilawar  Singh vs  Parvinder  Singh,  

(2005) 12 SCC 709,  in which Raghubans Dubey vs State of Bihar, AIR  

1967 SC 1167, was applied.    Therefore, the High Court was not justified in  

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directing the Appellant to appear before the Magistrate.

23. On behalf of the State, the submission is that the prosecution should  

be afforded a free and fair opportunity of subjecting the accused to custody  

for interrogation as provided under Section 167 CrPC.   This power rests  

with the Magistrate  and not  with the High Court,  which is  the Court  of  

Revision and Appeal; therefore, the High Court under Section 482 CrPC can  

only correct or rectify an order passed without jurisdiction by a subordinate  

Court.   Learned State counsel submits that the High Court in exercise of  

powers under Section 482 can convert  the nature of  custody from police  

custody to judicial custody and vice versa, but cannot pass an Order of first  

remanding to custody.   Therefore, the only avenue open to the accused is to  

appear before the Magistrate who is empowered under Section 167 CrPC.  

Thereupon, the Magistrate can order for police custody or judicial custody or  

enlarge him on bail.   On behalf of the State, it is contended that if accused  

persons are permitted to surrender to the High Court, it is capable of having,  

if not a disastrous, certainly a deleterious effect on investigations and shall  

open up the flood gates for accused persons to make strategies by keeping  

themselves away from the investigating agencies for months on end.   The  

argument    continues  that  in  this  manner  absconding  accused  in  several  

sensitive cases, affecting the security of the nation or the economy of the  

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country, would take advantage of such an interpretation of law and get away  

from the clutches of the investigating officer.   We are not impressed by the  

arguments  articulated  by learned Senior  Counsel  for  the  Complainant  or  

informant because it is axiomatic that any infraction or inroad to the freedom  

of  an  individual  is  possible  only  by  some  clear  unequivocal   and  

unambiguous procedure known to law.      

Role of Public Prosecutor and Private Counsel in Prosecution

24. The concern of the Three Judge Bench in  Thakur Ram vs State of  

Bihar  AIR 1966 SC 911,   principally  was whether  the case before  them  

should have been committed to Sessions, as also whether this plea could be  

countenanced at the stage when only the Judgment was awaited and any  

such  interference  would  effectuate  subjecting  the  accused  to  face  trial  

virtually de novo.  The observations that where “a case has proceeded on a  

police report a private party has really no locus standi, since the aggrieved  

party is the State”, are strictly senso obiter dicta but it did presage the view  

that  was  to  be  taken  by  this  Court  later.    In  Bhagwant  Singh vs  

Commissioner  of  Police,  (1985) 2 SCC 537, another  Three Judge Bench  

formulated the question which required its answer that “whether in a case  

where  First  Information  Report  is  lodged  and  after  completion  of  

investigation initiated on the basis of the First Information Report, the police  

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submits  a  report  that  no  offence  appears  to  have  been  committed,  the  

Magistrate can accept the report and drop the proceeding without issuing  

notice to the first  informant or  to the injured or  in case the incident has  

resulted in death, to the relatives of the deceased”.  Sections 154, 156, 157,  

173 and 190 of the CrPC were duly considered threadbare, before opining  

thus:-

“4. ….when, on a consideration of the report made by the  officer-in-charge of a police station under sub-section (2)(i)  of  Section  173,  the  Magistrate  is  not  inclined  to  take  cognizance of the offence and issue process, the informant  must be given an opportunity of being heard so that he can  make  his  submissions  to  persuade  the  Magistrate  to  take  cognizance of the offence and issue process…..

xxxxxxxxxx

“5. The position may however, be a little different when we  consider  the  question  whether  the  injured  person  or  a  relative of the deceased, who is not the informant, is entitled  to notice when the report comes up for consideration by the  Magistrate.  We cannot spell out either from the provisions  of  the  Code  of  Criminal  Procedure,  1973  or  from  the  principles of natural justice, any obligation on the Magistrate  to issue notice to the injured person or to a relative of the  deceased  for  providing  such  person  an  opportunity  to  be  heard at the time of consideration of the report, unless such  person is the informant who has lodged the First Information  Report.   But  even if  such person is not  entitled to notice  from the Magistrate,  he can appear  before  the Magistrate  and make his submissions when the report is considered by  the Magistrate for the purpose of deciding what action he  should take on the report……”

Thereafter,  in  Shiv  Kumar  vs  Hukam  Chand  (1999)  7  SCC  467,  the  

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question that was posed before another Three Judge Bench was whether an  

aggrieved has a right to engage its own counsel to conduct the prosecution  

despite the presence of the Public Prosecutor.   This Court duly noted that  

the role of the Public Prosecutor was upholding the law and putting together  

a  sound  prosecution;  and  that  the  presence  of  a  private  lawyer  would  

inexorably  undermine  the  fairness  and  impartiality  which  must  be  the  

hallmark, attribute and distinction of every proper prosecution.  In that case  

the advocate appointed by the aggrieved party ventured to conduct the cross-

examination of the witness which was allowed by the Trial Court but was  

reversed in Revision by the High Court, and the High Court  permitted only  

the  submission  of  Written  Argument  after  the  closure  of  evidence.  

Upholding the view of the High Court, this Court went on to observe that  

before the Magistrate any person (except a police officer below the rank of  

Inspector)  could  conduct  the  prosecution,  but  that  this  laxity  is  

impermissible  in  Sessions  by  virtue  of  Section  225  of  the  CrPC,  which  

pointedly  states  that  the  prosecution  shall  be  conducted  by  a  Public  

Prosecutor.  We, respectfully, agree with the observations that – “A Public  

Prosecutor is not expected to show a thirst to reach the case in the conviction  

of the accused somehow or the other irrespective of the true facts involved in  

the case.  The expected attitude of the Public Prosecutor while conducting  

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prosecution must be couched in fairness not only to the Court and to the  

investigating agencies but to the accused as well.  ……..  A private counsel,  

if allowed a free hand to conduct prosecution would focus on bringing the  

case to conviction even if it is not a fit case to be so convicted.  That is the  

reason why Parliament applied a bridle on him and subjected his role strictly  

to the instructions given by the Public Prosecutor.”   In J.K. International  

vs State (2001) 3 SCC 462, the Appellant  had filed a complaint alleging  

offences  under  Sections  420,  406  and  120-B IPC in  respect  of  which  a  

Charge Sheet was duly filed.  The Appellant preferred a petition in the High  

Court for quashing the FIR in which proceeding the complainant’s request  

for  being  heard  was  rejected  by  the  High  Court.   Thakur  Ram and  

Bhagwant Singh were cited and analysed.  It was reiterated by this Court  

that it is the Public Prosecutor who is in the management of the prosecution  

the Court should  look askance at frequent interjection and interference by a  

private person.   However, if the proceedings are likely to be quashed, then  

the complainant should be heard at that stage, rather than compelling him to  

assail the quashment by taking recourse to an appeal.  Sections 225, 301 and  

302 were also adverted to and, thereafter, it was opined that a private person  

is not altogether eclipsed from the scenario, as he remains a person who will  

be prejudiced by an order culminating in the dismissal of the prosecution.  

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The  Three  Judge  Bench  observed  that  upon  the  Magistrate  becoming  

prescient  that  a prosecution is  likely to  end in  its  dismissal,  it  would be  

salutary to allow a hearing to the Complainant at the earliest; and, in the case  

of a Sessions trial,  by permitting the filing of Written Arguments.  

25. The upshot  of  this  analysis  is  that  no  vested  right  is  granted  to  a  

complainant  or  informant  or  aggrieved  party  to  directly  conduct  a  

prosecution.  So far as the Magistrate is concerned, comparative latitude is  

given to him but he must always bear in mind that   while the prosecution  

must  remain being robust  and comprehensive and effective it  should not  

abandon the need to be free, fair and diligent.  So far as the Sessions Court is  

concerned, it is the Public Prosecutor who must at all times remain in control  

of the prosecution and a counsel of a private party can only assist the Public  

Prosecutor in discharging its responsibility.  The complainant or informant  

or aggrieved party may, however, be heard at a crucial and critical juncture  

of  the Trial  so that  his  interests  in the prosecution are  not  prejudiced or  

jeopardized.   It seems to us that constant or even frequent interference in the  

prosecution should not be encouraged as it will have a deleterious impact on  

its impartiality.  If the Magistrate or Sessions Judge harbours the opinion that  

the prosecution is likely to fail, prudence would prompt that the complainant  

or informant or aggrieved party be given an informal hearing.  Reverting to  

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the case in hand, we are of the opinion that the complainant or informant or  

aggrieved party who is himself an accomplished criminal lawyer and who  

has  been  represented  before  us  by  the  erudite  Senior  Counsel,  was  not  

possessed of any vested right of being heard as it is manifestly evident that  

the Court has not formed any opinion adverse to the prosecution. Whether  

the Accused is to be granted bail is a matter which can adequately be argued  

by the State Counsel.  We have, however, granted a full hearing to Mr. Gopal  

Subramanium,  Senior  Advocate  and  have  perused  detailed  Written  

Submissions since we are alive to impact that our opinion would have on a  

multitude of criminal trials.

26. In conclusion, therefore, we are of the opinion that the learned Single  

Judge erred in law in holding that he was devoid of jurisdiction  so far as the  

application  presented  to  him by the  Appellant  before  us  was  concerned.  

Conceptually, he could have declined to accept the prayer to surrender to the  

Courts’ custody, although, we are presently not aware of any reason for this  

option  to  be  exercised.    Once  the  prayer  for  surrender  is  accepted,  the  

Appellant before us would come into the custody of the Court within the  

contemplation of Section 439 CrPC.   The Sessions Court as well as the  

High Court, both of which exercised concurrent powers under Section 439,  

would  then  have  to  venture  to  the  merits  of  the  matter  so  as  to  decide  

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whether the applicant/Appellant had shown sufficient reason or grounds for  

being enlarged on bail.

27. The impugned Order is, accordingly, set aside.   The Learned Single  

Judge shall consider the Appellant’s plea for surrendering to the Court and  

dependent  on  that  decision,  the  Learned  Single  Judge  shall,  thereafter,  

consider the Appellant’s plea for his being granted bail.   The Appellant shall  

not be arrested for a period of two weeks or till the final disposal of the said  

application, whichever is later.   We expect that the learned Single Judge  

shall remain impervious to any pressure that may be brought to bear upon  

him either from the public or from the media as this is the fundamental and  

onerous duty cast on every Judge.   

28. The appeal is allowed in the above terms.     

                           .............................................J.

            [K.S.RADHAKRISHNAN]

                         ............................................J.

             [VIKRAMAJIT SEN] New Delhi; March 27,  2014.   

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