1. Criminal proceedings under IPC and Prevention of Corruption Act — Application for release on bond under Section 88, Cr.P.C. after issuance of non-bailable warrants. (Para 3 , 4 , 5 , 6 , 7 , 8 )
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2018 Supreme(SC) 172
SUPREME COURT OF INDIA
A.K. SIKRI, ASHOK BHUSHAN, JJ.
Pankaj Jain – Appellant
Versus
Union of India & Anr. – Respondents
Criminal Appeal No. 321 of 2018 (Arising Out of SLP (Crl.) Diary No. 1445 of 2018)
Decided On : 23-02-2018
IMPORTANT POINT
Release on furnishing bond on surrender in court u/s 88 CrPC cannot be claimed as right.
Headnote:(a) Code of Criminal Procedure, 1973 – Section 88 – Use of word ‘may’ – Normally not a word of compulsion – Implies discretion – But when coupled with duty on an authority or Court, it would mean ‘shall’ casting an obligation on an authority or Court – Section 88 not conferring any right on any person – But conferring discretionary power to the court for ensuring appearance of such person – Use of word ‘may’, held, discretionary as ‘any person’ includes persons not even accused. (Para 16, 17, 23, 31)
AIR 1963 SC 1618; AIR 1963 SC 1088; (2013) 6 SCC 573; (1970) 3 SCC 739 – Relied upon
109 (2003) DLT 494; Bail Application No. 508 of 2011 (Del); 2000(2) PLJR 686 – Cited with approval
(1874-80) All ER Rep. 43 – Referred
2016 (3) RCR(Cri) 883 – Distinguished
(b) Code of Criminal Procedure, 1973 – Section 439 – Bail application has to be first considered by trial court – Appellant not making any application for bail before trial court despite Supreme Court twice giving liberty – Supreme Court declining to consider bail observing that trial court will consider such application forthwith, when made. (Para 35)
Facts of the case:
Interpretation of the content and meaning of Section 88 of the Code of Criminal Procedure, 1973 has fallen for consideration in this case.
Finding of the Court:
Release on furnishing bond on surrender in court u/s 88 CrPC cannot be claimed as right.
Result: Appeal disposed of.
Legal Category Hierarchy
- practice and procedure
- statutory interpretation
Table of Contents
2. Whether the word "may" in Section 88, Cr.P.C. is mandatory or discretionary for releasing an accused not arrested during investigation. (Para 10 , 11 )
3. Analysis of "may" as an enabling word — Section 88 provides discretionary power to ensure appearance and does not confer a right to the accused. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 )
4. The word "may" in Section 88, Cr.P.C. confers judicial discretion and is not an obligatory command to release an accused on bond. (Para 31 )
5. Appeal disposed of — High Court judgment upheld — Trial Court directed to consider formal bail application taking into account disability and other grounds. (Para 35 , 36 )
6. Does the word "may" in Section 88 Cr.P.C. imply a mandatory obligation on the court?
No. The word "may" in Section 88 is an enabling word that confers judicial discretion on the court to require a bond for appearance. It does not confer a right on the person present in court nor is it a mandatory obligation. (Para 15 , 16 , 23 , 31 )
7. When can the word "may" be interpreted as "shall" in statutory interpretation?
The word "may" can be construed as "shall" or a command when the discretion is coupled with a duty, specifically when the object of the power is to effectuate a legal right or is required for the benefit of specific persons. (Para 17 , 18 , 19 )
8. Is Section 88 Cr.P.C. applicable to an accused against whom non-bailable warrants and proceedings under Sections 82 and 83 have been initiated?
No. Section 88 applies to a person who is a free agent regarding their appearance. An accused facing non-bailable warrants and proceedings under Sections 82 and 83 Cr.P.C. is not considered a free agent and is thus not entitled to the benefit of Section 88. (Para 29 , 30 )
9. How does Section 88 Cr.P.C. interact with Section 437 Cr.P.C. regarding non-bailable offences?
Section 88 is a general provision defining the court's power to seek a bond for appearance and is not an independent section. In cases of non-bailable offences, it is subject to Section 437 Cr.P.C., which specifically deals with the grant of bail. (Para 25 )
JUDGMENT :
Ashok Bhushan, J.
1. Leave granted.
2. This appeal has been filed against the judgment and order of Allahabad High Court dated 21.12.2017 dismissing the Writ Petition No. 62167 of 2017 filed by the appellant. The principal issue, which has arisen for interpretation of this Court, is the content and meaning of Section 88 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”). Before we come to the impugned judgment of the High Court, it is necessary to note a series of litigations initiated at the instance of the appellant in different courts, arising out of criminal proceeding lodged against him.
3. A First Information Report under Sections 120-B, 409, 420, 466, 467, 469 and 471 of Indian Penal Code and under Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 was lodged against one Yadav Singh, the then Chief Engineer of Noida, Greater Noida and the Yamuna Expressway Authorities and a charge sheet dated 15.03.2016 being Charge Sheet No.02/2016 was submitted in the Court of Special Judge, C.B.I. against several accused including Yadav Singh and the appellant Pankaj Jain. The trial court took cognizance by order dated 29.03.2016 summoning accused for 29.04.2016 for appearance. The appellant filed an application under Section 482 Cr.P.C. in the Allahabad High Court being Application No. 31090 of 2016, praying for quashing the entire criminal proceeding of Special Case No. 10 of 2016 as well as summoning order dated 29.03.2016. The application was finally disposed off by the High Court vide order dated 17.10.2016 with a direction that if the applicant appears and surrenders before the Court below within two weeks and applies for bail, then his bail application shall be considered and decided. The appellant filed an Special Leave Petition (Crl.) No. 10191/2016 against the judgment of the High Court dated 17.10.2016, which was dismissed by this Court as withdrawn on 16.01.2017 with liberty to apply for regular bail.
4. A supplementary charge sheet was filed on 31.05.2017, on the basis of which a Cognizance Order dated 07.06.2017 was passed by the Special Judge, C.B.I. taking cognizance against the appellant and other accused under Sections 120B, 420, 468, 471 of I.P.C. and Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988. Again an application under Section 482 Cr.P.C. being Application No. 18849 of 2017 was filed by the appellant in the High Court praying for quashing the criminal proceeding in pursuance of supplementary charge sheet dated 31.05.2017. The High Court vide its order dated 06.07.2017 disposed of the application under Section 482 Cr.P.C. directing that if the applicant appears and surrenders before the Special Judge, C.B.I. within two weeks and applies for bail, it is expected that the same will be disposed of expeditiously in accordance with law. It was further directed in the meantime for a period of two weeks, effect of non-bailable warrant shall be kept in abeyance. The appellant aggrieved by the order of the High Court dated 06.07.2017 again filed an Special Leave Petition (Criminal) No. 7749 of 2017, which was disposed of by this Court on 24.11.2017 granting further two weeks’ time to the petitioner (appellant) to apply for regular bail before the Special Judge, C.B.I. with a direction to the trial court to consider the said application for bail forthwith.
5. On 27.11.2017, the case was taken up by the Special Judge, C.B.I. The Court noticed that appellant and one other accused was not present. The Court ordered for issuing non-bailable warrants and process of Sections 82 and 83 of Cr.P.C. against the appellant. On the same day, noticing the order passed by this Court on 24.11.2017 in S.L.P. (Criminal) No. 7749 of 2017, the learned Special Judge stayed the orders against the appellant for a period of two weeks’ as per order of this Court. The appellant further filed Writ Petition (Criminal) No. 199 of 2017 in this Court under Article 32 of the Co
