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IN THE HIGH COURT OF ORISSA
VIPIN SANGHI AND I.S. MEHTA, JJ.
CRL.REF.1/2018
Decided on 13th November, 2018.
Court on its Own Motion ... Petitioner
Versus
State ... Respondent
2. CRIMINAL PROCEDURE CODE, 1973 - Sec. 437, 439 - In the cases falling under Clause (i) and (ii) of Sec. 437 (1), even though the accused may not have been produced in custody/detention before the Magistrate while filing the charge sheet, when the accused appears before the Court of the Magistrate, the Magistrate would take such an accused into custody and shall not release him on bail, unless the case is covered by one or more of the first two provisos which follow Clause (ii) of Sec. 437 (1), Cr.P.C. - Remedy of such an accused would lie u/s. 439, Cr.P.C. either before the court of Sessions or the High Court - The ratio of law as laid down by Supreme Court and provision of Sec. 437 stated.
(i) The power of the Court to grant or refuse bail is a discretionary power and the exercise of the said discretion is circumscribed by germane and relevant considerations. The discretion has to be exercised with care and caution by balancing the valuable right of the individual, and the interest of the society in general.
(ii) The basic rule in respect of an accused in a cognizable, non-bailable offence, and an under-trial is to grant him bail. The option to commit him to jail is the exception. This is because refusal of bail is a restriction on the personal liberty of the individual, which is guaranteed under Article 21 of the Constitution and, therefore, the personal liberty of the accused/under trial should not be curbed lightly.
(iii) Pre-conviction incarceration of the accused/ under trial is a preventive measure, and not a punitive one. Denial of bail in an otherwise deserving case to the accused/ under trial cannot be actuated with the desire to punish the accused/ under trial.
(iv) The option of denying bail, and subjecting the accused/ under trial to incarceration would be resorted to by the Court where there are apprehensions that the accused/ under trial may: flee from justice; thwart the course of justice; appear to be likely to commit other offences while on bail, or; likely to intimidate witnesses or destroy evidence. These considerations are illustrative and not exhaustive;
(v) The gravity or heinousness of the offence involved, and the severity of the punishment that the accused may be subjected to is a relevant consideration, as it is likely to induce the accused to avoid the course of justice where the offence is grave and the punishment therefor is severe, and must weigh with the Court when considering the question of bail, or jail;
(vi) The conduct of the accused/ under trial - particularly, post the involvement in the case, is also a relevant consideration. Thus, if the accused/ under trial has not abused the trust placed by the Court in him, that would be a factor in his favour while considering his application for grant of bail.
(vii) The other circumstance, namely his roots and family background; his age; his antecedents, and; his status in the society are other considerations which would be taken into account at the time of consideration of grant, or refusal, of bail to the accused/ under trial.
(viii) The court can curb (though not completely eliminate) the possibility of the accused fleeing from justice, by subjecting him to conditions such as requiring him to furnish his personal bond; surety bonds; surrendering his passport; reporting at the police station on regular intervals to mark his attendance etc.
(ix) In a case where the accused is alleged to have committed an offence punishable with death or imprisonment for life, or in a case where the accused appears to be a repeat offender whose case is covered by clause (ii) of sub section (1) of section 437, ordinarily his bail may be refused. However, in cases falling under one or more of the first two provisos to Section 437 (1) Cr.P.C., the bail may be granted upon consideration of the relevant circumstances taken note of herein.
(x) The considerations in granting bail are common - both to cases falling under Section 437 (1) Cr P.C, and cases falling under Section 439 (1) Cr.P.C, namely: the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; the likelihood of the accused repeating the offence; the likelihood of the accused jeopardizing his own life - being faced with a grim prospect of possible conviction in the case; the likelihood of the accused tampering with evidence or influencing witnesses; the history of the case as well as of its investigation, and other relevant grounds which cannot be exhaustively set out. (Para - 22 and 35)
3. BAIL - Gravity and heinousness of the offence in which the accused is involved must weigh with the Court while considering the question of bail or jail. (Para - 26)
4. ANTICIPATORY BAIL - When the charge sheet is filed before the Court/Magistrate without arresting the accused, despite the rejection of his anticipatory bail application by the High Court, it is not open to the Court to examine whether the exercise of discretion by the Investigating Officer (I.O.) not to arrest the accused despite rejection of his anticipatory bail application by High Court has been properly exercised - Magistrate/Court is only concerned with the final report/charge sheet, as filed. (Para - 37)
JUDGMENT
VIPIN SANGHI, J. - 1. The present is a reference received from the learned CMM (North West), Rohini Courts, Delhi under section 395(2) Cr PC.
2. Before setting out the questions of law raised by the learned CMM, we may set out the background in which the said questions of law have been referred for decision of this Court. Nitin Kumar Aggarwal is one of the accused in case FIR 136/2013, PS EOW. His anticipatory bail application under section 438 Cr PC was dismissed by this court on 30.05.2017. Despite the said dismissal, he was not arrested and he had been charge sheeted under section 406/420/120B IPC without arrest, vide charge sheet/ final report filed on 23.08.2017. Cognizance of the offence was taken by the learned Magistrate on 30.08.2017 qua all the accused, including Nitin Kumar Aggarwal. Once summoned, the accused moved the application to seek bail under Section 437 Cr P.C. The learned CMM was dealing with that application moved by the said accused for release on regular bail under Section 437 Cr.P.C.
3. That aforesaid application for bail was opposed by the complainant. The complainant moved an application for issuance of non bailable warrants, and for a direction to the Investigating Officer (IO) to arrest the accused Nitin Kumar Aggarwal. The court called for a report from the IO, who filed the report dated 21.12.2017. The said report disclosed that two other accused in the case were arrested, but were later released on bail by the court. So far as Nitin Kumar Aggarwal is concerned, he moved an application to seek anticipatory bail under section 438 Cr PC. Vide order dated 04.12.2014, he was granted interim protection against coercive action. By the subsequent order dated 03.07.2015, the said interim order was made absolute and the application for grant of anticipatory bail was favourably disposed of. However, subsequently, the said order was recalled and vacated on 25.05.2017 and the petition for anticipatory bail of Nitin Kumar Aggarwal was dismissed on 30.05.2017.
4. In his report, the IO stated that the investigation in the case had been completed and Nitin Kumar Aggarwal was not arrested as his arrest was not required at that stage. There was no direction by this Court - in its order dated 30.05.2017, to arrest Nitin Kumar Aggarwal. He was formally arrested after the anticipatory bail application was disposed of, and was released on bail as per law. Nitin Kumar Aggarwal had joined the investigation as and when required, and it was of no use to arrest Nitin Kumar Aggarwal twice.
5. In the order of reference, the learned CMM has taken note of the decision of this Court in a decision of a Ld. Single Judge of this Court in Court on its Own Motion v. C.B.I, 2004 (72) DRJ 629 (referred to as Court on its own motion (1)) and “Court on its Own Motion v. State (Manu/DE/3926/2017 also reported as 243 (2017) DLT 373 (DB) (referred to as Court on its own motion (2)) decided by a Division Bench of this Court. We shall refer to these decisions a little latter in our opinion.
6. The learned CMM before framing the questions of law on which the decision of this court is sought, observed as follows:
“The question that arises for consideration is for what purpose, the accused is to be sent in JC at this stage of proceedings, and if he is sent in JC, then for how long?
If the ratio of the judgments in the matter of Courts by its Own Motion (Supra) to be applied, there is no discretion left with this court, but to release the accused on bail, but, at the same time, the fact of dismissal of anticipatory bail by Hon ble Delhi High Court cannot be ignored. Thus, this court thinks it fit to make a reference u/s 395 (2) Cr.P.C on the following points”
7. In the aforesaid background, the following questions of law have been referred to this court for our consideration:
“A) Whether, in the given facts, this court needs to refer to the order of Hon’ble Delhi High Court rejecting the anticipatory bail application, w
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