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IN THE HIGH COURT OF ALLAHABAD
N. L. GANGULY, V. SARAN
HAJI PEER BUX - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
C. M. W. P. 15857 Of 1993
Decided On : 04/13/1993
CRIMINAL PROCEDURE CODE - SECTIONS 437, 439 - INTERPRETATION - POWER TO RELEASE ACCUSED ON INTERIM BAIL - INHERENT IN THE PROVISIONS - CONDITIONS FOR EXERCISE OF DISCRETION - ILLUSTRATIVE LIST - CASES WHERE RELIEF MAY NOT BE DESIRABLE - DUTY OF COURTS TO DISPOSE OF BAIL APPLICATIONS WITH LEAST POSSIBLE DELAY - LATITUDE TO PROSECUTING AGENCY TO BE AVOIDED.
Fact of the Case:
Petitioners, father and son, sought quashing of FIR alleging robbery and S. 3/5 Explosive Act. Petitioners contended that FIR allegations were false and bail applications were not being expeditiously disposed of by courts below, leading to unnecessary incarceration.
Finding of the Court:
1. The court found that it was not a fit case to quash the FIR under Art. 226 of the Constitution. 2. The court held that the power to release an accused on personal bond pending consideration of the bail application is implicit in the language of Ss. 437 and 439 of the Code of Criminal Procedure (CrPC). 3. The court emphasized that the right to speedy trial includes the right to speedy disposal of the bail matter and that sending accused to jail without judicial scrutiny is unreasonable and arbitrary, violating Arts. 14 and 21 of the Constitution. 4. The court observed that the provisions of Ss. 437 and 439 of the CrPC should be interpreted to sustain their constitutionality and effectuate their purpose and intendment. 5. The court noted that the repeal of S. 438 of the CrPC in Uttar Pradesh, which provided for anticipatory bail, does not alter the situation as Ss. 437 and 439 deal with bail at a different stage when the accused has been arrested or surrendered. 6. The court clarified that the release of an accused on interim bail is no ground for grant of bail and that the final disposal of the bail application must be made after considering the entire merits.
Issues: 1. Whether the power to release an accused on interim bail is implicit in Ss. 437 and 439 of the CrPC? 2. Whether the repeal of S. 438 of the CrPC in Uttar Pradesh affects the power to grant interim bail under Ss. 437 and 439? 3. Whether the courts below are granting undue latitude to the prosecuting agency in bail applications, leading to unnecessary incarceration of accused persons?
Ratio Decidendi: 1. The court held that the power to release an accused on interim bail is implicit in Ss. 437 and 439 of the CrPC, as it is necessary to prevent arbitrary and unreasonable deprivation of personal liberty. 2. The court observed that the repeal of S. 438 of the CrPC in Uttar Pradesh does not affect the power to grant interim bail under Ss. 437 and 439, as these provisions deal with bail at a different stage when the accused has been arrested or surrendered. 3. The court emphasized the need for courts to dispose of bail applications with the least possible delay and to avoid granting undue latitude to the prosecuting agency, as this encourages corrupt practices.
Final Decision: 1. The court directed the lower courts to proceed in accordance with the observations made in the judgment, obviating the necessity of sending the petitioners to jail. 2. The court directed that in cases where the investigation is being conducted by the district police, not more than five or six days should be allowed for the report of the police station concerned.
( 1 ) PETITIONERS Haji Peer Bux alias Saleem Lala and Fazloo alias Saghir Haji alias Saghir Jamal who are father and son respectively have filed this petition for quashing the First Information Report dated 18-3-1993 lodged by Mohd. Saleem and registered as Crime No. 45 of 1993, U/s. 394/307, IPC of P. S. Chaman Ganj, District Kanpur Nagar and S. 3/5 Explosive Act.
( 2 ) WE have gone through the First Information Report and other materials placed on the record and have heard learned Counsel for the petitioners and the learned Standing Counsel.
( 3 ) WE are of the opinion that it is not a fit case in which this Court may exercise its discretion under Art. 226 of the Constitution to quash the FIR.
( 4 ) LEARNED counsel for the petitioners, however, prayed that a direction be issued by this Court that when the petitioners surrender and make application for bail, their bail application may be considered on the same day and in case the hearing or the disposal of the bail application is adjourned, the petitioners may be released on their executing personal bound till such adjourned date. Learned Counsel for the petitioners has pointed out that the FIR allegations that the petitioners committed robbery have been found to be false on investigation by the police. Annexure 2 to the petition contains the conclusion of the Investigating Officer in the following words : "vivechana Se Dookan Hotal Ranjis Bhi Hai. Ukta Chatana Barah Charah Kar lykhai Gai Hai Koie Bhi Loot Pat Nahi Huie Hai. "
( 5 ) LEARNED counsel has further drawn our attention to other infirmities in the prosecution version and has submitted that the case against the petitioners is a pure concoction and the FIR has been lodged with the ulterior purposes so that the petitioners may go to jail for some days pending disposal of their bail application. Learned counsel has also pointed out that the injuries alleged to have been suffered by the informant are superficial and there is no bomb injury. Learned counsel for the petitioners has submitted that the sub-ordinate courts deal with bail applications in a most routine manner and the accused, are, without exception, sent to jail pending consideration of their bail applications which linger on for several weeks.
( 6 ) THE perennial stream of writ petitions filed in this Court seeking the directions, for early disposal of the bail applications lend countenance to the grievance made by the learned counsel for the petitioners. The right to speedy trial which includes the right to speedy disposal of the bail matter has been held to be a part of the right of personal liberty under Art. 21 of the Constitution. Unfortunately we have noticed that bail applications are not being expeditously disposed of by the Courts below and remain pending for a long time.
( 7 ) WE would like to emphasise that in all cases it is not necessary to send the accused to jail without judicial scrutiny by way of consideration at the stage of bail application. It is common knowledge that false cases are sometimes concocted to humiliate and disgrace innocent persons and cause harm to them mentally or otherwise. It is equally true that sometimes accused are sent to jail for offences of trivial nature in which they ought to have been released on bail at the very threshold. In our opinion, the power to release the accused on personal bond pending consideration of the bail application is implicit in the language of Ss. 437 and 439 of Code. The word procedure in Art. 21, no doubt, means procedure which is reasonable, just and fair. Thus a procedure which requires a citizen to go to jail irrespective of the fact whether he is guilty or not and whether his going to jail is purposeful or not can hardly be regarded as fail. In our Constitution there is no express "due process Clause" as is found in American Constitution. The Supreme Court has, however, held that the said Clause will be read in our Constitution. The erudite judicial expressions of the
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