1999 Supreme(Del) 524

High Court Of Delhi
ARUN KUMAR SINGH - Appellant
Versus
STATE (NATIONAL CAPITAL TERRITORY OF DELHI) - Respondent
Criminal Miscellaneous (Main) 1875 of 1999
Decided On : 07/27/1999

Headnote:Criminal Procedure Code, 1973 - Section 78 & 81 — Jurisdiction to grant bail — Proviso to Section 81 cannot be interpreted to confer jurisdiction on a court other than the court which has power to try the offence on the basis of place of the commission of offence.

       Held:

       The second proviso to Section 81, as it is worded, does not itself confer any power on a Court to release the person on bail. It only provides for the release of a person arrested in execution of a warrant issued by the Court under Section 78. To enable such Magistrate or the Court of Sessions to consider whether bail should or should not be granted to the person arrested in execution of warrant, it has further been provided in Sub-section (2) of Section 78 that the Magistrate issuing a warrant should also forward Along with the warrant, the substance of the information together with relevant documents. Thus, the second proviso to Section 81 is limited to the jurisdiction of the Court in the matter of granting bail to a person arrested in execution of a warrant issued under Section 78 of the Code. The context and position of Section 81 in the Code is itself a clear pointer to such limitation. As noticed earlier, Section 81 is laid in Chapter VI of the Code and it is preceded by Section 78 prescribing procedure for execution of warrant outside the jurisdiction of the Court issuing the same. As noticed earlier, Section 81 pertains to and provides for the grant of bail by the Courts having jurisdiction over the place of arrest in cases of arrests of persons in execution of warrants of arrest. The view taken by the Calcutta High Court loses sight of the fact that Section 81 can come into operation only when a police officer makes an arrest of the accused person under Section 78 of the Code. It further loses sight of the context in which Section 81 is laid and the provisions of Chapter XIII embodying the basis rule that the offence shall ordinarily be inquired into and tried by a Court in whose jurisdiction it was committed. Even if the accused is found far beyond the area of crime, he has to be brought back before the Court having local jurisdiction to try the same. According to Section 177 Cr.P. C. the jurisdiction of a Criminal Court is governed by the situs of the commission of offence and not by the shady or evasive movements of the offender. It is not that the accused persons presence would carry the jurisdiction with him to any Court where he may be present or where he may deliberately have chosen to flee. It is a cardinal principle of criminal jurisprudence that wherever the jurisdiction of the Criminal Court for trial and inquiry of the offence lies, there alone would lie the jurisdiction for grant of regular or anticipatory bail, unless the statute expressly provides otherwise.

       Sub-section (2) of Section 78 imposes a statutory obligation on the Court issuing the warrant to send the substance of information and documents, if any, to the Court before which the arrested person is to be produced to enable it to decide whether a bail should or should not be granted. The second proviso to Section 81 confers power on a Chief Judicial Magistrate or a Sessions Judge other than the one having jurisdiction over the area of offence to grant bail after considering the information and documents referred to in Sub-section (2) of Section 78. Thus, it is manifest that power under the second proviso to Section 81 can only be exercised with regard to the warrants of arrest issued under Section 78 and on the basis of documents mandated to be forwarded Along with the warrant by Sub-section (2) thereof. The power to grant bail can, thereforee, be exercised only within the narrow parameters of Section 81 read with Sub-section (2) of Section 78. If the aforesaid provisions did not exist on the statute book, then such a power would not vest in the Court other than the one having jurisdiction. Thus, it is obvious that in the context of Sections 78(2) and 81, the law has not chosen to give any such enabling power to grant bail to Courts other than one having jurisdiction over the area of the commission of the offence. That being so, unless an express provision exists on the statute book, there is no general power in vacuum in every Criminal Court to assume jurisdiction extra territorially. Jurisdiction means the extent of the power which is conferred upon a Court by the statute; its exercise cannot be enlarged because an extraordinary situation requires the Court to exercise it. Consequently, the clear mandate of the language of Sub-section (2) of Section 78 and the inherent limitation of jurisdiction under the second proviso to Section 81 cannot be over-ridden by any high flown and doctrinaire considerations.

       Consequently, it would be impermissible to hold that second proviso to Section 81 is broader in itself as would also govern a case where an accused has not been arrested in execution of warrant under Section 78 of the Code. I am, thereforee, of the opinion that the Chief Judicial Magistrate, Moradabad had no jurisdiction to admit the petitioner/accused on bail under Section 81 of the Code. If the Courts are allowed to exercise powers of grant of bail beyond the scope of Section 81 of the Code, it would result in a judicial chaos and inherent conflict betwixt the comity of Courts. This would inevitably lead to contradictory orders and overlapping jurisdiction.

       Interpretation of Statutes - Scope of legislation cannot be enlarged when the language is plain and unambiguous.

       The junctions of the Courts is only to expound and not to legislate. It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the Legislature when the language of the provision is plain and unambiguous. Court cannot rewrite, recast or reframe the legislation.