- Bench: K.S. Radhakrishnan, Vikramajit Sen
- Appellant: Sundeep Kumar Bafna
- Respondent: State Of Maharashtra & Anr
Issue
For a regular bail under section 439 of Cr.P.C, whether it is the Magistrate whose jurisdiction has necessarily to be invoked and not of the High Court or even the Sessions Judge?
Facts
• The Appellant's application for regular bail under Section 439 of the Code of Criminal Procedure 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 by the Bombay High Court.
• Earlier, while declining to grant anticipatory bail to the Appellant, The Supreme Court had extended to him transient insulation from arrest for a period of four weeks to enable him to apply for regular bail.
• In the impugned Judgment, the learned Single Judge 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 Magisterial custody and this can only be done under Section 167 of Code of Criminal Procedure by the Magistrate and that order cannot be passed at the High Court level."
• The Appellant contended that the Magistrate is not empowered to grant bail to the Appellant, since he can be punished with imprisonment for life. 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 Code of Criminal Procedure.
• Since this was not 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 Code of Criminal Procedure 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.
Appellant's Contentions
• The Appellant is not 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 Magisterial custody and this can only be done under Section 167 of Code of Criminal Procedure by the Magistrate and that order cannot be passed at the High Court level.
• 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) Code of Criminal Procedure
• 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.
Respondent's Contentions
• The prosecution should be afforded a free and fair opportunity of subjecting the accused to custody for interrogation as provided under Section 167 Code of Criminal Procedure. 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 Code of Criminal Procedure can only correct or rectify an order passed without jurisdiction by a subordinate Court.
• 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 Code of Criminal Procedure. Thereupon, the Magistrate can order for police custody or judicial custody or enlarge him on bail.
• 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.
Judgment
The Single Judge erred in law in holding that he was devoid of jurisdiction so far as the application presented to him by the Appellant. The impugned Order was thus set aside. The appeal is allowed with terms.
Relevant Paragraphs
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 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 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. 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 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 whether the applicant/Appellant had shown sufficient reason or grounds for being enlarged on bail.
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