IMPORTANT POINTS
1. Exercise of jurisdiction under Section 438 of the Code is an extremely important judicial function of a judge and both individual and society have vital interest in the orders passed by the court in anticipatory bail applications.
2. A court of law has to act within the statutory command and not deviate from it.

Headnote:Code of Criminal Procedure,1973- Section 438-Grant of anticipatory bail to five accused persons pertaining to offences punishable under Section 341/294/506 and 302 read with Section 34 of the Indian Penal Code-Appeals thereagainst seeking quashing of orders on ground that High Court had extended benefit of Section 438 (1) of Code in an illegal and impermissible manner-Held High Court cannot pass an order that on surrendering of accused before Magistrate he shall be released on bail on such terms and conditions as Magistrate may deem fit and proper or the superior court would impose conditions for grant of bail on such surrender- When the High Court in categorical terms had expressed the view that it was not inclined to grant anticipatory bail to accused petitioners it could not have issued such a direction which would tantamount to conferment of benefit by which the accused would be in a position to avoid arrest- It was in clear violation of language employed in statutory provision-Impugned orders directing enlargement of bail of accused persons, by Magistrate on their surrendering held wholly unsustainable –Appeals disposed off (Paras 30 to 34)
       Facts of the Case :
        Present appeals have been filed against orders passed by High Court in respect of five accused persons under Section 438 of the Code pertaining to offences punishable under Section 341/294/506 and 302 read with Section 34 of the Indian Penal Code .The present appeals had been preferred by the sister of the deceased and the complainant, an eye witness, seeking quashing of the orders on the foundation that High Court had extended the benefit of Section 438 (1) of the Code in an illegal and impermissible manner.
       Findings of the Court :
        The Court held that High Court cannot pass an order that on surrendering of accused before Magistrate he shall be released on bail on such terms and conditions as Magistrate may deem fit and proper or the superior court would impose conditions for grant of bail on such surrender. When the High Court in categorical terms had expressed the view that it was not inclined to grant anticipatory bail to accused petitioners it could not have issued such a direction which would tantamount to conferment of benefit by which the accused would be in a position to avoid arrest. It was in clear violation of language employed in statutory provision. Impugned orders directing enlargement of bail of accused persons, by Magistrate on their surrendering held to be wholly unsustainable. Appeals were disposed of.

JUDGMENT

Dipak Misra, J.-Leave granted in both the petitions.

2. “Liberty is to the collective body, what health is to every individual body. Without health no pleasure can be tasted by man; without Liberty, no happiness can be enjoyed by society.” Thus spoke Bolingbroke.

3. Liberty is the precious possession of the human soul. No one would barter it for all the tea in China. Not for nothing Patrick Henry thundered: “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God ! I know not what course others may take, but as for me, give me liberty, or give me death !” The thought of losing one’s liberty immediately brings in a feeling of fear, a shiver in the spine, an anguish of terrible trauma, an uncontrollable agony, a penetrating nightmarish perplexity and above all a sense of vacuum withering the very essence of existence. It is because liberty is deep as eternity and deprivation of it, infernal. May be for this protectors of liberty ask, “How acquisition of entire wealth of the world would be of any consequence if one’s soul is lost?” It has been quite often said that life without liberty is eyes without vision, ears without hearing power and mind without coherent thinking faculty.

4. Almost two centuries and a decade back thus spoke Edmund Burke: -

“Men are qualified for civil liberty, in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love to justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters.”

5. Similar voice was echoed by E. Barrett Prettyman, a retired Chief Judge of U.S. Court of Appeals:-

“In an ordered society of mankind there is no such thing as unrestricted liberty, either of nations or of individuals. Liberty itself is the product restraints; it is inherently a composite of restraints; it dies when restraints are withdrawn. Freedom, I say, is not an absence of restraints; it is a composite of restraints. There is no liberty without order. There is no order without systematized restraint. Restraints are the substance without which liberty does not exist. They are the essence of liberty. The great problem of the democratic process is not to strip men of restraints merely because ‘they are restraints. The great problem is to design a system of restraints which will nurture the maximum development of man’s capabilities, not in a massive globe of faceless animations but as a perfect realization, of each separate human mind, soul and body; not in mute, motionless meditation but in flashing, thrashing activity.”

6. Keeping the cherished idea of liberty in mind, the fathers of our Constitution engrafted in its Preamble:

“Liberty of thought, expression, belief, faith and worship.”

After a lot of debate in the Constituent Assembly, Article 21 of the Constitution came into existence in the present form laying down in categorical terms that no person shall be deprived of his life and personal liberty except according to the procedure established by law.

7. We have begun with the aforesaid prologue, as the seminal question that falls for consideration in these appeals is whether the High Court, despite the value attached to the concept of liberty, could afford to vaporise the statutory mandate enshrined under Section 438 of the Code of Criminal Procedure (for short ‘the Code’). It is not to be forgotten that liberty is not an absolute abstract concept. True it is, individual liberty is a very significant as

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2012 Supreme(SC) 348

Cases Referred (14)