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SUPREME COURT OF INDIA
K.S.RADHAKRISHNAN, VIKRAMAJIT SEN, JJ.
SUNDEEP KUMAR BAFNA – APPELLANT
vs
STATE OF MAHARASHTRA & ANR. – RESPONDENTS
CRIMINAL APPEAL No. 689 OF 2014 [Arising out of SLP (Crl.)No.1348 of 2014]
Decided On : 27-03-2014
(1980) 3 SCC 141; (1978) 1 SCC 118; 1992 (Supp)1 SCC 335 – Relied upon
(b) Code of Criminal Procedure, 1973 – Section 437 and 439 – Section 437 contemplating a person to be accused or suspect of a non-bailable offence and consequently arrested or detained without warrant – Section 439 on the other hand empowers the Session Court or High Court to grant bail if such a person is in custody – The only procedural requirement is of giving notice of the Bail application to the Public Prosecutor. (Para 8)
(1978) 1 SCC 118 – Relied upon
(c) Code of Criminal Procedure, 1973 – Sections 437 and 439 – ‘Custody’ and ‘arrest’ are not synonymous – Custody, detention and arrest are sequentially cognate concepts. (Para 12)
(1994) 3 SCC 440; 384 US 436 (1966); 465 US 420 (1984); 1969 CareswellOnt 138; [2009] S.C.J.No.33; 468 U.S. 420 (1984); (1980) 2 SCC 559; (2004) 7 SCC 558; (2005) 1 SCC 608; (2005) 4 SCC 303; (2008) 3 SCC 222; (1989) 2 SCC 754; AIR 2002 SC 1652 – Relied upon
1984(15) ELT 289 (Mad); 2005 (Supp.) Bom C.R.(Cri) 270 – Cited with approval
(2012) 5 SCC 690; (1976) 4 SCC 572 – Referred
(d) Legal Interpretation – Per incuriam – 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 Supreme Court – Per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta – In case of two or more mutually irreconcilable decisions of Supreme Court being cited at the Bar, the inviolable recourse is to apply the earliest view – Succeeding views would fall in the category of per incuriam – (1980) 2 SCC 559 is not per incuriam. (Para 15, 17)
(e) Code of Criminal Procedure, 1973 – Section 439 – Appellant freshly pleading surrender and thereafter prayed for bail – High Court rejecting on the ground that he was not in custody – High Court could have perfunctorily taken the Appellant into its custody and then proceeded to grant or reject bail. (Para 19)
(1980) 2 SCC 565 – Relied upon
(f) Code of Criminal Procedure, 1973 – Section 439 – High Court can consider application for bail if accused is in custody – However as soon as accused actually surrenders before the (High) Court, this condition is fulfilled – Moreover, cognizance already taken and case committed to Sessions – Therefore he could not appear before Magistrate – High Court was in error in directing so. (Para 23)
(2005) 12 SCC 709; AIR 1967 SC 1167 – Relied upon
(2012) 1 WLR 1192 – Distinguished
(g) Criminal Trial – Opportunity to complainant or informant to prosecute – No vested right to complainant or informant or aggrieved party to directly conduct a prosecution – Public Prosecutor must at all times remain in control of the prosecution. (Para 25)
AIR 1966 SC 911; (1985) 2 SCC 537; (1999) 7 SCC 467; (2001) 3 SCC 462 – Relied upon
Facts of the case:
Anticipatory bail application of the appellant was dismissed by High Court and Supreme Court. However, he was directed to approach High Court for regular bail.
His regular bail application was dismissed by High Court on the ground that it could be granted only by the Magistrate even though the case is already committed to the Sessions.
The reasoning given by the High Court was that as the Magistrate is empowered to remand an accused to police custody or Magisterial custody u/s 167 CrPC, it is the proper court to grant bail.
The High Court also held that the appellant having been declared a proclaimed offender and not in custody, section 439 CrPC did not apply.
Finding of the Court:
Single Judge of the High Court erred in holding that he had no jurisdiction in the matter.
Result: Appeal allowed.
Certainly. Based on the provided legal document, the key points are as follows:
Section 437 of the Criminal Procedure Code (CrPC) allows for the production of the accused before a court other than the Court of Sessions or High Court, but does not restrict the jurisdiction of the Sessions or High Court (!) (!) .
Custody, detention, and arrest are distinct but related concepts, with custody and arrest being sequentially connected but not synonymous (!) .
The doctrine of per incuriam applies strictly to the ratio decidendi of a judgment and not to obiter dicta, and a decision can be per incuriam if certain provisions or principles were not brought to the court’s notice (!) .
There is no vested right for the complainant, informant, or aggrieved party to directly conduct a prosecution; the Public Prosecutor must always remain in control of the prosecution process (!) .
The interpretation of terms like ‘custody,’ ‘detention,’ and ‘arrest’ is based on their ordinary and legal meanings, which generally involve the control or restraint of a person’s liberty, either physically or legally (!) (!) .
Custody, detention, and arrest are sequentially related, with custody implying some form of control or restraint of liberty, which can occur through formal arrest or surrender before a court (!) .
The jurisdiction of the Court of Session to entertain bail applications extends even before the case is formally committed to it, provided the accused is in custody or has surrendered to the court’s control (!) (!) .
The concept of ‘in custody’ can include surrendering before the court and submitting to its jurisdiction, not only physical arrest or detention by police (!) .
The order and timing of proceedings, including cognizance, committal, and bail, are interconnected, and the law provides mechanisms for an accused to seek bail at various stages, including before formal committal (!) .
Both the High Court and the Court of Session have the authority to entertain bail applications when the accused is in custody, even if the case has not yet been committed (!) .
The role of the Public Prosecutor is to oversee the prosecution, and private parties do not have an inherent right to directly conduct or interfere with the prosecution process (!) .
The principles of judicial discipline and stare decisis require courts to follow binding precedents, and decisions should not be declared per incuriam unless specific criteria are met (!) .
The interpretation of custody and related concepts must be consistent with established legal principles, and courts should exercise caution in declaring decisions as per incuriam, ensuring they are based on proper understanding of the law (!) .
The court emphasizes the importance of proper procedure, judicial independence, and adherence to legal norms in matters of bail, custody, and prosecution to uphold constitutional rights and ensure fair trial processes (!) .
The procedural rights of an accused, including the ability to surrender and seek bail, are recognized as fundamental and must be facilitated within the framework of the law (!) .
Courts have the authority to consider applications for surrender and bail at appropriate stages, and such applications should be decided on their merits without undue influence or external pressures (!) .
The overall legal approach underscores that the law provides multiple avenues for an accused to seek relief, and courts must interpret procedural provisions in a manner that safeguards personal liberty and justice (!) .
If you need further elaboration on any specific point or legal principle, please let me know.
JUDGMENT
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 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 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 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
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