IN THE HIGH COURT OF DELHI AT NEW DELHI.
Crl.M(M) 3875/2003
Date of Decision: January 28, 2004
Court On Its Own Motion
Versus
Central Bureau of Investigation ...Respondents
Through: Mr. K.K. Sud, ASG, with Mr. Neeraj Jain, Advocate for respondent-CBI.
Mr.Sidharth Luthra,Mr. Vaibhav Gaggar,Advocates for the accused.
CORAM:
HON'BLE MR. JUSTICE J.D.KAPOOR
1.Whether the reporters of local papers may be allowed to see the judgment?
2.To be referred to the reporter or not?
3.Whether the judgment should be referred in the Digest?
J.D.KAPOOR, J
1
2
.
.
.
26. Arrest of a person for less serious or such kinds of offence or offences those can be investigated
without arrest by the police cannot be brooked by any civilized society.
Directions for Criminal Courts :-(i) Whenever officer-in-charge of police station or investigating agency like CBI files a chargesheet without arresting the accused during investigation and does not produce the accused in custody as referred in Section 170 Cr.P.C the Magistrate or the court empowered to take cognizance or try the accused shall accept the chargesheet forthwith and proceed according to the procedure laid down in Section 173 Cr.P.C. and exercise the options available to it as discussed in this judgment. In such a case the Magistrate or court shall invariably issue a process of summons and not warrant of arrest.
(ii) In case the court or Magistrate exercises the discretion of issuing warrant of arrest at any stage including the stage while taking cognizance of the chargesheet, he or it shall have to record the reasons in writing as contemplated under Section 87 Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.
(iii) Rejection of an application for exemption from personal appearance on any date of hearing or even at first instance does not amount to non-appearance despite service of summons or absconding or failure to obey summons and the court in such a case shall not issue warrant of arrest and may either give direction to the accused to appear or issue process of summons.
(iv) That the Court shall on appearance of an accused in a bailable offence release him forthwith on his furnishing a personal bond with or without sureties as per the mandatory provisions of Section 436 Cr.P.C
(v) The Court shall on appearance of an accused in non-bailable offence who has neither been arrested by the police/Investigating agency during investigation nor produced in custody as envisaged in Section 170 Cr.P.C. call upon the accused to move a bail application if the accused does not move it on his own and release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because chargesheet has been filed is against the basic principles governing grant or refusal of bail.
(vi) That the Court shall always keep the mandatory provisions of Section 440 Cr.P.C. in mind while fixing the amount of bail bond or surety bond which provides that the amount of bond shall never be "excessive" amount and take into consideration the financial condition, the nature of offence and other conditions, as "Excessive" amount of bond which a person is not in a position to furnish amounts to denial of bail in a non-bailable offence and conversion of bailable offence into non-bailable offence as the fundamental concept of granting bail on bond is security of appearance of the accused person to answer the charges and face the trial. Nothing more nothing less.
Principles that govern the grant of refusal of bail in other kinds of cases and shall be followed in letter and spirit are as under:-
(a) Bail should not be refused unless the crime charged is of the highest magnitude and the punishment of it prescribed by law is of extreme severity;
(b) Bail may be refused when the court may reasonably presume, some evidence warranting that no amount of bail would secure the presence of the convict at the stage of judgment;
(c) Bail may be refused if the course of justice would be thwarted by the person who seeks the benignant jurisdiction of the Court to be freed for the time being;
(d) Bail may be refused if there is likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice; and
(e) Bail may be refused if the antecedents of a man who is applying for bail show a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail.
(f) Similarly, the Court shall not while releasing a person on bail put any condition, say in the form of
deposit of extra amount or FDR etc. of any amount which is beyond the conditions permissible under Section 439 Cr.PC.
27. This Court has laid down aforesaid law in various cases decided from time to time for the
guidance and compliance of the subordinate courts but it is with great anguish and pain that this
Court observes that it has come across a large number of orders passed by the subordinate courts in
complete violation of the law laid down by this Court and Supreme Court in many more other cases.
28. There is no gain saying the fact that the disobedience or disregard of the law laid down by the
High Court by the subordinate courts is not only against the very concept of rule of law but also
verges on contempt of court as subordinate courts are, by way of constitutional provisions, bound by
the decision of the local High Court as is every court of the country including the High Courts,
bound by the decisions of the Supreme Court by virtue of provisions of Article 141 of the
Constitution. If the subordinate courts start ignoring the law laid down by their High Courts and
start acting contrary thereto, then not only the legal anarchy will set in but the democratic structure
of the country, rule of law and concept of liberty of citizens will be the first casualty.
29. Motion is disposed of with the aforesaid directions.
30. In view of the wide ramifications of the law laid in this case and cases referred therein and for
the benefit of the society and people at large, Registrar General of this Court is directed to send the
copy of the Judgment to Police Commissioner for guidance and compliance by the
SHOs/Investigating Officers and to all the Judicial Officers of Delhi and to the Director, Central
Bureau of Investigation.
January 28, 2004 ( J.D.KAPOOR)
sk/ssb JUDGE
Crl.M(M) 3875/2003
Date of Decision: January 28, 2004
Court On Its Own Motion
Versus
Central Bureau of Investigation ...Respondents
Through: Mr. K.K. Sud, ASG, with Mr. Neeraj Jain, Advocate for respondent-CBI.
Mr.Sidharth Luthra,Mr. Vaibhav Gaggar,Advocates for the accused.
CORAM:
HON'BLE MR. JUSTICE J.D.KAPOOR
1.Whether the reporters of local papers may be allowed to see the judgment?
2.To be referred to the reporter or not?
3.Whether the judgment should be referred in the Digest?
J.D.KAPOOR, J
1
2
.
.
.
26. Arrest of a person for less serious or such kinds of offence or offences those can be investigated
without arrest by the police cannot be brooked by any civilized society.
Directions for Criminal Courts :-(i) Whenever officer-in-charge of police station or investigating agency like CBI files a chargesheet without arresting the accused during investigation and does not produce the accused in custody as referred in Section 170 Cr.P.C the Magistrate or the court empowered to take cognizance or try the accused shall accept the chargesheet forthwith and proceed according to the procedure laid down in Section 173 Cr.P.C. and exercise the options available to it as discussed in this judgment. In such a case the Magistrate or court shall invariably issue a process of summons and not warrant of arrest.
(ii) In case the court or Magistrate exercises the discretion of issuing warrant of arrest at any stage including the stage while taking cognizance of the chargesheet, he or it shall have to record the reasons in writing as contemplated under Section 87 Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.
(iii) Rejection of an application for exemption from personal appearance on any date of hearing or even at first instance does not amount to non-appearance despite service of summons or absconding or failure to obey summons and the court in such a case shall not issue warrant of arrest and may either give direction to the accused to appear or issue process of summons.
(iv) That the Court shall on appearance of an accused in a bailable offence release him forthwith on his furnishing a personal bond with or without sureties as per the mandatory provisions of Section 436 Cr.P.C
(v) The Court shall on appearance of an accused in non-bailable offence who has neither been arrested by the police/Investigating agency during investigation nor produced in custody as envisaged in Section 170 Cr.P.C. call upon the accused to move a bail application if the accused does not move it on his own and release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because chargesheet has been filed is against the basic principles governing grant or refusal of bail.
(vi) That the Court shall always keep the mandatory provisions of Section 440 Cr.P.C. in mind while fixing the amount of bail bond or surety bond which provides that the amount of bond shall never be "excessive" amount and take into consideration the financial condition, the nature of offence and other conditions, as "Excessive" amount of bond which a person is not in a position to furnish amounts to denial of bail in a non-bailable offence and conversion of bailable offence into non-bailable offence as the fundamental concept of granting bail on bond is security of appearance of the accused person to answer the charges and face the trial. Nothing more nothing less.
Principles that govern the grant of refusal of bail in other kinds of cases and shall be followed in letter and spirit are as under:-
(a) Bail should not be refused unless the crime charged is of the highest magnitude and the punishment of it prescribed by law is of extreme severity;
(b) Bail may be refused when the court may reasonably presume, some evidence warranting that no amount of bail would secure the presence of the convict at the stage of judgment;
(c) Bail may be refused if the course of justice would be thwarted by the person who seeks the benignant jurisdiction of the Court to be freed for the time being;
(d) Bail may be refused if there is likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice; and
(e) Bail may be refused if the antecedents of a man who is applying for bail show a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail.
(f) Similarly, the Court shall not while releasing a person on bail put any condition, say in the form of
deposit of extra amount or FDR etc. of any amount which is beyond the conditions permissible under Section 439 Cr.PC.
27. This Court has laid down aforesaid law in various cases decided from time to time for the
guidance and compliance of the subordinate courts but it is with great anguish and pain that this
Court observes that it has come across a large number of orders passed by the subordinate courts in
complete violation of the law laid down by this Court and Supreme Court in many more other cases.
28. There is no gain saying the fact that the disobedience or disregard of the law laid down by the
High Court by the subordinate courts is not only against the very concept of rule of law but also
verges on contempt of court as subordinate courts are, by way of constitutional provisions, bound by
the decision of the local High Court as is every court of the country including the High Courts,
bound by the decisions of the Supreme Court by virtue of provisions of Article 141 of the
Constitution. If the subordinate courts start ignoring the law laid down by their High Courts and
start acting contrary thereto, then not only the legal anarchy will set in but the democratic structure
of the country, rule of law and concept of liberty of citizens will be the first casualty.
29. Motion is disposed of with the aforesaid directions.
30. In view of the wide ramifications of the law laid in this case and cases referred therein and for
the benefit of the society and people at large, Registrar General of this Court is directed to send the
copy of the Judgment to Police Commissioner for guidance and compliance by the
SHOs/Investigating Officers and to all the Judicial Officers of Delhi and to the Director, Central
Bureau of Investigation.
January 28, 2004 ( J.D.KAPOOR)
sk/ssb JUDGE
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