- Bench - Full bench of I Murtiza, M Katju, S Singh, S Ambwani, K Mishra, P Shrivastava, R Singh
- Appellants - Smt. Amravati
- Respondents - State Of Uttar Pradesh
Issues
1. Whether the arrest of an accused is a must if cognizable offence is disclosed in the FIR or in a criminal complaint?
2. Whether the High Court can direct the Subordinate Courts to decide the Bail Application on the same day it is filed?
3. Whether the case Dr. Vinod Narain v. State of U.P., has been correctly decided by the five Judges Full Bench of this Court?
Judgement -
(1) Even if cognizable offence is disclosed, in the FIR or complaint the arrest of the accused is not a must, rather the police officer should be guided by the decision of the Supreme Court in Joginder Kumar v. State of U.P., 1994 Cr LJ 1981. before deciding whether to make an arrest or not.
(2) The High Court should ordinarily not direct any Subordinate Court to decide the bail application the same day, as that would be interfering with the judicial discretion of the Court hearing the bail application. However, as stated above, when the bail application is under Section 437. CrPC ordinarily the Magistrate should himself decide the bail application the same day, and if he decides in a rare and exceptional case not to decide it on the same day, he must record his reasons in writing. As regards the application under Section 439, CrPC it is in the discretion of the learned Sessions Judge considering the facts and circumstances whether to decide the bail application the same day or not, and it is also in his discretion to grant interim bail the same day subject to the final decision on the bail application later.
(3) The decision in Dr. Vinod Narain v. State of UP. (supra) is incorrect and is substituted accordingly by this judgment.
Relevant paragraphs -
â—� 41. We again make it clear that the learned Sessions Judge in his discretion can hear and decide the bail application under Section 439 on the same day of its filing provided notice is given to the Public Prosecutor, or he may not choose to do so. This is entirely a matter in the discretion of the learned Sessions Judge. There may also be cases where the learned Sessions Judge on the material available before him may decide to grant interim bail as he may feel that while he has sufficient material for giving interim bail he requires further material for grant of final bail. In such cases also he can in his discretion, grant interim bail and he can hear the bail application finally after a few days. All these are matters which should ordinarily be left to his discretion.
â—� 38. The fact that in the same statute in one provision the period of the notice has been prescribed, while in another provision it has not indicates that Parliament in its wisdom has left it to the discretion of the Court where such period has not been prescribed to regulate its proceedings and determine in its own discretion what reasonable period should there be between giving of the notice and hearing of the bail application under Section 439.
â—� 39. In Ramesh Chandra Kapil v. High Court of Judicature at Allahabad, 1984 UPCR 159, the Court referred to the Latin Maxim 'CURSUS CURLAF LEX CURAE' which means "every Court is the guardian of its own records and of its practice".
â—� It may be mentioned that a person's reputation and esteem in society is a valuable asset, just as in civil law it is an established principle that goodwill of a firm is an intangible asset. In practice, if a person applies for bail he has to surrender in Court, and normally the bail application is put up for hearing after a few days and in the meantime he has to go to jail. Even if he is subsequently granted bail or is acquitted, his reputation is irreparably tarnished in society. Often false and frivolous FIRs arc filed yet the innocent person has to go to jail, and this greatly damages his reputation in society. For instance, as observed by the Supreme Court in Karis Raj v. State of Punjab, 2000 Cr LJ 2993 (vide Para 5), a tendency has developed of roping in all relations of the in-laws of the deceased wife in matters of dowry death. All these factors must be kept in mind by the Court particularly after the promulgation of the Constitution, which has embodied the right to liberty as a valuable fundamental right in Article 21 of the Constitution of India.
â—� 32. In our country unfortunately whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused. This practice in our opinion is illegal as it is against the decision of the Supreme Court in Joginder Kumar's case, and it is also in violation of Article 21 of the Constitution as well as Section 157(1), CrPC gives a police officer discretion to arrest or not, but this discretion cannot be exercised arbitrarily, and it must be exercised in accordance with the principles laid down in Joginder Kumar's case (supra). The view of Hon'ble Palok Basu, J. in this connection is hence clearly incorrect.
