# SUNDEEP KUMAR BAFNA v. STATE OF MAHARASHTRA & ANR

- **Citation:** [2014] 4 S.C.R. 486
- **Court:** Supreme Court of India
- **Decided:** 2014-03-27
- **Case number:** Criminal Appeal No. 689 of 2014
- **Bench:** K.S.Radhakrishnan, Vikramajit Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sundeep-kumar-bafna-v-state-of-maharashtra-anr-29920
- **Pages:** 43

## Headnote

CODE OF CRIMINAL PROCEDURE, 1973:
c
s. 439 - Bail - Case triable by Court of Session -
Power
of Court of Session and High Court to grant bail till committal
of case to Court of Session - Held: There is no provision in
Cr. P. C. or elsewhere, curtailing the power of either of superior
courts to entertain and decide pleas for bail - A substantial
0 period may inevitably intervene between a Magistrate taking
cognizance of an offence triable by Court of Session and its
committal to such court -
During this interregnum, s. 439 can
be invoked for purpose of pleading for bail -
Since severe
restrictions have been placed on power of Magistrate to grant
bail to a person accused of an offence punishable by death
E or imprisonment for life, a superior court such as Court of
Session, should not be incapacitated from considering a bail
application especially keeping in perspective that its powers
are comparatively unfettered uls 439 - In the instant case,
offence had already been committed to Court of Session -
F Applicant prayed for surrender to High Court and for grant of
bail -
Single Judge erred in law in holding that he was devoid
of jurisdiction so far as application presented to him by
appellant was concerned -
Once prayer for surrender is
accepted, appellant would come into custody of court within
G contemplation of s. 439 -
Impugned order is, accordingly, set
aside -
Single Judge shall consider appellant's plea for
surrendering to court and grant of bail - Constitution of India,
1950 - Art. 21.
H
486
SUNDEEP KUMAR BAFNA v. STATE OF
MAHARASHTRA
CRIMINAL LAW:
487
Expressions, 'arrest', 'custody' and 'detention' - Explained
A
- Held: The terms 'custody', 'detention' or 'arrest' have not
been defined in CrPC -
However, an analysis of case law
indicates that these are sequentially cognate conceptsB
'Custody' and 'arrest' are not synonyms even though in every
arrest there is custody but not vice versa.
ADMINISTRATION OF JUSTICE:
Role of Public Prosecutor and hearing to complainant! C
informant/ aggrieved party -
Held: The role of Public
Prosecutor is to uphold the law and put forth a sound
prosecution -
Presence of a private lawyer would inexorably
undermine fairness and impartiality which must be hallmark,
attribute and distinction of every proper prosecution -
No
D
vested right is granted to a complainant or informant or
aggrieved party to directly conduct a prosecution -
Constant
or even frequent interference in prosecution should not be
encouraged as it will have a deleterious impact on its
impartiality - However, where Magistrate or Sessions Judge
E
is of the opinion that prosecution is likely to fail, prudence
would prompt that complainant or informant or aggrieved
party be given an informal hearing.
PRECEDENT:
Expression, 'per incuriam' - Explained -
Held: It is
necessary to give a salutary clarion caution to all courts,
including High Courts, to be extremely careful and
circumspect in concluding a judgment of Supreme Court to
F
be per incuriam -
An earlier judgment cannot be seen as
G
per incuriam a later judgment as the latter if numerically
stronger only then it would overrule the former- In the instant
case, in the impugned order, single Judge of High Court
followed incorrect and misleading editorial note in the cited
law journal without apprising himself of the context in which
H
488
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A Rashmi Rekha was wrongly reported to hold Niranjan Singh
per incuriam -
Rashmi Rekha dealt with anticipatory bail ul
s 438, Cr. P. C. and only tangentially with ss. 437 and 439,
Cr. P. C. -
In the factual matrix of the instant case, Niranjan
Singh is the precedent of relevance and not Gurbaksh Singh
B Sibbia nor any other decision where the scope and sweep of
anticipatory bail was at the fulcrum of the conundrum - Law
reporting.
WORDS AND PHRASES:
C
Expressions, 'custodey', 'detention' and' arrest' -
I
Connotation of.
The Supreme Court, while dismissing the appellant's
petition for special leave to appeal

## Text

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A
B
[2014] 4 S.C.R. 486
SUNDEEP KUMAR BAFNA
v.
STATE OF MAHARASHTRA & ANR.
(Criminal Appeal No. 689 of 2014)
MARCH 27, 2014
[K.S.RADHAKRISHNAN AND VIKRAMAJIT SEN, JJ.]
CODE OF CRIMINAL PROCEDURE, 1973:
c
s. 439 - Bail - Case triable by Court of Session -
Power
of Court of Session and High Court to grant bail till committal
of case to Court of Session - Held: There is no provision in
Cr. P. C. or elsewhere, curtailing the power of either of superior
courts to entertain and decide pleas for bail - A substantial
0 period may inevitably intervene between a Magistrate taking
cognizance of an offence triable by Court of Session and its
committal to such court -
During this interregnum, s. 439 can
be invoked for purpose of pleading for bail -
Since severe
restrictions have been placed on power of Magistrate to grant
bail to a person accused of an offence punishable by death
E or imprisonment for life, a superior court such as Court of
Session, should not be incapacitated from considering a bail
application especially keeping in perspective that its powers
are comparatively unfettered uls 439 - In the instant case,
offence had already been committed to Court of Session -
F Applicant prayed for surrender to High Court and for grant of
bail -
Single Judge erred in law in holding that he was devoid
of jurisdiction so far as application presented to him by
appellant was concerned -
Once prayer for surrender is
accepted, appellant would come into custody of court within
G contemplation of s. 439 -
Impugned order is, accordingly, set
aside -
Single Judge shall consider appellant's plea for
surrendering to court and grant of bail - Constitution of India,
1950 - Art. 21.
H
486
SUNDEEP KUMAR BAFNA v. STATE OF
MAHARASHTRA
CRIMINAL LAW:
487
Expressions, 'arrest', 'custody' and 'detention' - Explained
A
- Held: The terms 'custody', 'detention' or 'arrest' have not
been defined in CrPC -
However, an analysis of case law
indicates that these are sequentially cognate conceptsB
'Custody' and 'arrest' are not synonyms even though in every
arrest there is custody but not vice versa.
ADMINISTRATION OF JUSTICE:
Role of Public Prosecutor and hearing to complainant! C
informant/ aggrieved party -
Held: The role of Public
Prosecutor is to uphold the law and put forth a sound
prosecution -
Presence of a private lawyer would inexorably
undermine fairness and impartiality which must be hallmark,
attribute and distinction of every proper prosecution -
No
D
vested right is granted to a complainant or informant or
aggrieved party to directly conduct a prosecution -
Constant
or even frequent interference in prosecution should not be
encouraged as it will have a deleterious impact on its
impartiality - However, where Magistrate or Sessions Judge
E
is of the opinion that prosecution is likely to fail, prudence
would prompt that complainant or informant or aggrieved
party be given an informal hearing.
PRECEDENT:
Expression, 'per incuriam' - Explained -
Held: It is
necessary to give a salutary clarion caution to all courts,
including High Courts, to be extremely careful and
circumspect in concluding a judgment of Supreme Court to
F
be per incuriam -
An earlier judgment cannot be seen as
G
per incuriam a later judgment as the latter if numerically
stronger only then it would overrule the former- In the instant
case, in the impugned order, single Judge of High Court
followed incorrect and misleading editorial note in the cited
law journal without apprising himself of the context in which
H
488
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A Rashmi Rekha was wrongly reported to hold Niranjan Singh
per incuriam -
Rashmi Rekha dealt with anticipatory bail ul
s 438, Cr. P. C. and only tangentially with ss. 437 and 439,
Cr. P. C. -
In the factual matrix of the instant case, Niranjan
Singh is the precedent of relevance and not Gurbaksh Singh
B Sibbia nor any other decision where the scope and sweep of
anticipatory bail was at the fulcrum of the conundrum - Law
reporting.
WORDS AND PHRASES:
C
Expressions, 'custodey', 'detention' and' arrest' -
I
Connotation of.
The Supreme Court, while dismissing the appellant's
petition for special leave to appeal against the order of
D the High Court rejecting his application for anticipatory
bail in a case triable by Court of Session, granted him
protection from arrest for four weeks so as to enable him
to apply for regular bail. Accordingly, he filed an
application u/s 439 Cr. P.C. before the High Court. The
single Judge of the High Court declining the prayer
E observed that it was the Magistrate whose jurisdiction
had necessarily to be invoked and not of the High Court
or even of the Sessions Judge. He further observed that
the appellant was required to be arrested or otherwise he
was to surrender before the court which could send him
F to remand either to the police custody or to the Magisterial
custody and this could only be done u/s 167, Cr. P. C. by
the Magistrate, as such an order could not be passed at
the High Court level.
G
Allowing the appeal, the Court
HELD:
Provisions in Cr.P.C. to grant regular bail:
H
1.1. Chapter XXXlll of the Code of Criminal
SUNDEEP KUMAR BAFNA v. STATE OF
489
MAHARASHTRA
Procedure, 1973(Cr.PC), which comprises ss.436 to 450,
A
deals with bail. For the purpose of the instant case,
ss.437 and 438 are relevant. Section 437, inter alia,
provides that if any person accused of, or suspected of
the commission of any non-bailable offence is arrested
or detained without warrant by an officer in charge of a
B
police station or if such person appears or is brought
before a Court other than the High Court or Court of
Session, he may be released on bail in certain
circumstances. There is no provision in the Code or
elsewhere, curtailing the power of the Court of Session c
or the High Court to entertain and decide pleas for bail.
Further, no provision categorically prohibits the
production of an accused before either of these courts.
The universal right of personal liberty emblazened by Art.
21 of the Constitution of India, being fundamental to the
0
very existence of not only to a citizen of India but to every
person, cannot be trifled with merely on a presumptive
plane. In view of the amendments carried out by
Parliament, ss. 437 to 439, Cr. P. C. predicate on the well
established principles of interpretation of statutes that
E
what is not plainly evident from their reading, was never
intended to be incorporated into law. Whilst s. 437
contemplates that a person has to be accused or suspect
of a non-bailable offence and consequently arrested or
detained without warrant, s. 439 empowers the Court of
Session or High Court to grant bail if such a person is in
F
custody. The difference of language manifests the
sublime differentiation in the two provisions and,
therefore, there is no justification in giving the word
'c_ustody' the same or closely similar meaning and
content as arrest or detention. [para 5 and 8] [499-G-H;
G
500-A-B; 504-C-E; 505-F-H; 506-A-C]
1.2. Furthermore, while s. 437 severally curtails the
power of the Magistrate to grant bail in context of the
commission of non-bailable offences punishable with
H
490
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A death or imprisonment for life, the two higher courts have
only the procedural requirement of giving notice of the
bail application to the Public Prosecutor, which
requirement is also ignorable if circumstances so
demand. The regimes regulating the powers of the
B Magistrate, on the one hand, and the two superior courts,
on the other, are decidedly and intentionally not identical,
but vitally and drastically dissimilar. Indeed, the only
complicity that can be contemplated is the conundrum of
'Committal of cases to the Court of Session' because of
c a possible hiatus created by the CrPC. [para 8] (506-C-E]
P. S. R. Sadhanantham vs Arunachalam 1980' (2) SCR
873 = (1980) 3 SCC 141, Gurcharan Singh vs State 1978 (2)
SCR 358 = (1978) 1 SCC 118, State of Haryana vs Bhajan
Lal 1990 (3) Suppl. SCR 259 = 1992 (Supp) 1 SCC 335 -
D referred to.
Meaning of 'custody':
1.3. The terms 'custody', 'detention' or 'arrest' have
E not been defined in the CrPC. However, an analysis of the
case law indicates that these are sequentially cognate
concepts. On the occurrence of a crime, the police is
likely to carry out the investigative interrogation of a
person, in the course of which the liberty of that
F individual is not impaired, suspects are then preferred by
the police to undergo custodial interrogation during
which their liberty is impeded and encroached upon. If
grave suspicion against a suspect emerges, he may be
detained in which event his liberty is seriously impaired.
Where the investigative agency is of the opinion that the
G detainee or person in custody is guilty of the commission
of a crime, he is charged of it and thereupon arrested. It
has been held by this Court that the terms 'custody' and
'arrest' are not synonyms even though in every arrest
there is a deprivation of liberty and custody but not vice
H versa. A person is in custody no sooner he surrenders
SUNDEEP KUMAR BAFNA v. STATE OF
491
MAHARASHTRA
before the police or before the appropriate Court. [para
A
9 and 12] [506-F; 509-F-H; 510-A, 511-C]
Directorate of Enforcement vs Deepak Mahajan 1994
(1) SCR 445 = (1994) 3 SCC 440; Niranjan Singh vs
Prabhakar Rajaram Kharote 1980 (3) SCR 15 = (1980) 2
8
SCC 559; Nirmal Jeet Kaur vs State of MP. 2004 (3 ) Suppl.
SCR 1006 = (2004) 7 SCC 558; Sunita Devi vs State of Bihar
2004 (6) Suppl. SCR 707 = (2005) 1 SCC 608; and Adri
Dharan Das vs State of West Bengal 2005 (2) SCR 188 =
(2005) 4 SCC 303; State of Haryana vs Dinesh Kumar 2008
C
(1) SCR 281 = (2008) 3 sec 222 - relied on.
Roshan Beevi vs Joint Secretary 1984(15) ELT 289
(Mad) - stood approved.
Miranda vs Arizona 384 US 436 (1966), Minnesota vs
0
Murphy 465 US 420 (1984), R. vs Whitfield 1969
Careswel/Ont 138, R. vs Suberu [2009] S.C.J.No.33
Berkemer vs McCarty 468 U.S. 420 (1984), referred to.
The Oxford Dictionary (online); The Cambridge
Dictionary (online); Longman Dictionary (online);
E
Chambers
Dictionary
(online);
Chambers'
Thesaurus; The Collins Cobuild English Dictionary
for Advance Learners; The Shorter Oxford English
Dictionary; The Corpus Juris Secundum; Black's
Law Dictionary, (9th ed. 2009); Halsbury's Laws of
F
England (4th Edition), Vol. II, paragraph 99 - referred
to.
Cognizance. committal and bail:
1.4. Chapter XVI of the Code makes it amply clear that G
a substantial period may inevitably intervene between a
Magistrate taking cognizance of an offence triable by
Court of Session and its committal to such court. In this
interregnum, the accused would be entitled to seek
H
492
SUPREME COURT REPORTS
(2014] 4 S.C.R.
A before a court his enlargement on bail. Since severe
restrictions have been placed on the powers of a
Magistrate to grant bail, in the case of an offence
punishable by death or for imprisonment for life, an
accused should be in a position to move the courts
B meaningfully empowered to grant him succour, There is
no provision in the CrPC which prohibits an accused
from moving the Court of Session for such a relief except,
theoretically, s.193 which only prohibits it from taking
cognizance of an offence as a court of original
c jurisdiction, but this does not prohibit the Court of
Session from adjudicating upon a plea of bait Therefore,
till the committal of case to the Court of Session, s. 439
can be invoked for the purpose of pleading for bail. [para
21] [520-G-H; 521-C, D-E, F-H]
D
1.5. In the instant case, the offence has already been
committed to the Court of Session, albeit, the accused/
appellant could not have been brought before the
Magistrate. It is beyond cavil that a court takes
cognizance of an offence and not an offender. The
E appellant has filed an application praying, firstly, that he
be permitted to surrender to the High Court and
secondly, for his plea to be considered for grant of bail
by the High Court. There are no restrictions on the High
Court to entertain an application for bail provided always
F the accused is in custody, and this position obtains as
soon as the accused actually surrenders himself to the
court. Therefore, the High Court was not justified in
directing the appellant to appear before the Magistrate.
[para 22] (522-D-E; 523-A-B, CJ
G
H
Di/awar Singh vs Parvinder Singh, 2005 (5) Suppl.
SCR 83 = (2005) 12 SCC 709; Raghubans Dubey vs State
of Bihar, 1967 SCR 423 =AIR 1967 SC 1167 - referred to.
R vs Evans, (2012) 1 WLR 1192- referred to.
SUNDEEP KUMAR BAFNA v. STATE OF
MAHARASHTRA
Rule of precedent and per incuriam:
493
2.1. The discipline demanded by a precedent is of
great importance for certainty of law, consistency of
rulings and comity of courts. A decision or judgment can
A
be per incuriam any provision in a statute, rule or
8
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 C
consonance with the views of this Court. [para 15] [513C-E]
Union
of
India
vs
Raghubir
Singh
1989
(3) SCR 316 =1989 (2) SCC 754; Chandra Prakash v. State
of U.P. 2002 (2) SCR 913 =AIR 2002 SC 1652 - relied on.
D
2.2. It is necessary to give a salutary clarion caution
to all courts, including High Courts, to be extremely
careful and circumspect in concluding a judgment of the
Supreme Court to be per incuriam. In the instant case, in
E
the impugned order the single Judge of the High Court
appears to have blindly followed the incorrect and
certainly misleading editorial note in the cited law journal,
i.e., Supreme Court Cases, without apprising himself of
the context in which Rashmi Rekha has been reported
F
to hold Niranjan Singh per incuriam, and equally
importantly, to which previous judgment. An earlier
judgment cannot possibly be seen as per incuriam a later
judgment as the latter if numerically stronger only then it
would overrule the former. Rashmi Rekha dealt with
anticipatory bail u/s 438 and only tangentially with ss. 437
G
and 439 of the CrPC. In the factual matrix of the instant
case, Niranjan Singh is the precedent of relevance and
not Gurbaksh Singh Sibbia or any other decision where
the scope and sweep of anticipatory bail was at the
fulcrum of the conundrum. [para 16] [514-A-E]
H
494
SUPREME COURT REPORTS
(2014] 4 S.C.R.
A
Niranjan Singh vs Prabhakar Rajaram Kharote (1980) 2
sec 559 - relied on.
Rashmi Rekha Thatoi vs State of Orissa, 2012 (5)
SCR 674 = (2012) 5 SCC 690; Gurbaksh Singh Sibbia vs
B State of Punjab 1980 (3) SCR 383 = (1980) 2 SCC 565; and
Bafchand Jain vs State of M.P. 1977 (2) SCR 52 = (1976) 4
sec 572 - referred to.
c
Balkrishna Dhondu Rani vs Manik Motiram Jagtap 2005
(Supp.) Born C.R.(Cri) 270 - approved.
2.3. This Court is, therefore, of the opinion that the
single Judge erred in law in holding that he was devoid
of jurisdiction so far as the application presented to him
by the appellant was concerned. Once the prayer for
D surrender is accepted, the appellant would come into the
custody of the court within the contemplation of s. 439
Cr. P. C. The Court of Session as well as the High Court,
both of which exercise concurrent powers u/s. 439,
would then have to venture to the merits of the matter so
E as to decide whether the applicant/appellant had shown
sufficient reason or grounds for being enlarged on bail.
[para 26) [527-H; 528-A, B-C]
2.4. The impugned order is set aside. The single
Judge shall consider the appellant's plea for
F surrendering to the court and, accordingly, shall consider
his plea for bail. The appellant shall not be arrested for a
period of two weeks or till the final disposal of the said
application, whichever is later. [para 27) [528-D-E]
G Role of Public Prosecutor and private counsel in
prosecution:
3.1. The role of the Public Prosecutor is to uphold the
law and put forth a sound prosecution, and the presence
of a private lawyer would inexorably undermine the
H
SUNDEEP KUMAR BAFNA v. STATE OF
495
MAHARASHTRA
fairness and impartiality which must be the hallmark
A
attribute and distinction of every proper prosecution. The
expected attitude of the Public Prosecutor while
conducting prosecution must be couched in fairness not
only to the court and to the investigating agencies but to
the accused as well. [para 24] [525-F-G; 526-C]
B
Thakur Ram vs State of Bihar 1966 SCR 740 =AIR 1966
SC 911, Bhagwant Singh vs Commissioner of Police, 1985
(3) SCR 942 = (1985) 2 SCC 537, Shiv Kumar vs Hukam
Chand 1999 (2) Suppl. SCR 81 = (1999) 7 sec 467, J.K.
lntemational vs State 2001 (2) SCR 90 = (2001) 3 SCC 462,
C
referred to.
3.2. No vested right is granted to a complainant or
informant or aggrieved party to directly conduct a
prosecution. So far as the Magistrate is concerned,
D
comparative latitude is given to him but he must always
bear in mind that while the prosecution must remain
being robust and comprehensive and effective it should
not abandon the need to be free, fair and diligent. So far
as the Court of Session is concerned, it is the Public
E
Prosecutor who must at all times remain in control of the
prosecution and a counsel of a private party can only
assist the Public Prosecutor in discharging its
responsibility. The complainant or informant or aggrieved
party may, however, be heard at a crucial and critical
F
juncture of the trial so that his interests in the prosecution
are not prejudiced or jeopardized. Constant or even
frequent interference in the prosecution should not be
encouraged as it will have a deleterious impact on its
impartiality. If the Magistrate or Sessions Judge is of the
G
opinion that the prosecution is likely to fail, prudence
would prompt that the complainant or informant or
aggrieved party be given an informal hearing. [para 25]
[527-B-E]
3.3. In the case in hand, the complainant or informant
H
496
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A or aggrieved party was not possessed of any vested right
of being heard as it is manifestly evident that the court
has not formed any opinion adverse to the prosecution.
Whether the accused is to be granted bail is a matter
which can adequately be argued by the State Counsel.
B However, before this Court, the Senior Counsel for the
complainant has been granted a full hearing and the
Court has perused detailed written submissions made by
him. (para 25] [527-E-G]
c
Case Law Reference:
1980 (2) SCR 873
referred to
Para 8
1978 (2) SCR 358
referred to
Para 8
1990 (3) Suppl. SCR 259
referred to
Para 8
D
1984(15) ELT 289 (Mad)
stood approvedPara 10
1994 (1) SCR 445
relied on
para 10
384 us 436 (1966)
referred to
Para 11
E
465 us 420 (1984)
referred to
Para 11
(2009] S.C.J.No.33
referred to
Para 11
468 U.S. 420. (1984)
referred to
Para 11
1980 (3) SCR 15
relied on
para 12
F
2004 (3) Suppl. SCR 1006 relied on
para 12
2004 (6) Suppl. SCR 707
relied on
para 12
2005 (2) SCR 188
relied on
para 12
G
2008 (1) SCR 281
relied on
para 12
1989 (3) SCR 316
relied on
para 13
2002 (2) SCR 913
relied on
para 14
2012 (5) SCR 674
referred to
Para 16
H
SUNDEEP KUMAR BAFNA v. STATE OF
497
MAHARASHTRA
1977 (2) SCR 52
referred to
Para 16
A
2005 (Supp.) Born
approved
Para 17
C.R.(Cri) 270
1980 (3) SCR 383
referred to
Para 19
B
(2012) 1 WLR 1192
referred to
para 22
2005 (5) Suppl. SCR83
referred to
Para 22
1967 SCR 423
referred to
para 22
1966 SCR 740
referred to
Para 24
c
1985 (3) SCR 942
referred to
Para 24
1999 (2) Suppl. SCR 81
referred to
Para 24
2001 (2) SCR 90
referred to
Para 24
D
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 689 of 2014.
From the Judgment & Order dated 06.02.2014 of the High
Court of Bombay in CRMBA No. 206 of 2014.
E
Mukul Rohatgi, V.K. Bali, Saurabh Kirpal, Manali Singhal,
Aditya Soni, Christine Aey Kumar, Abhikalp Pratap Singh,
Santosh Sachin (for Nikhil Jain) for the Appellant.
T.A. Rahman, Satbir Pillania, Somvir Deswal, R.C.
Gubrele, Aniruddha P. Mayee, Charudatta Mahindrakar for the
Respondents, Merchant (complainant-in-person).
The Judgment of the Court was delivered by
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
F
G
H
498
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A 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
B 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
c 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
0 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
E 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
F 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
G 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
H in Section 437(1) CrPC; CR No.290 of 2013 stands registered
SUNDEEP KUMAR BAFNA v. STATE OF
499
MAHARASHTRA [VIKRAMAJIT SEN, J.)
with P .S. Mahim for offences punishable under Sections 288, A
304, 308, 336, 388 read with 34 and Section 120-8 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
B
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. C
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 D
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 E
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 jn the present Appeal.
F
Relevant Provisions in the CrPC Pertaining to Regular
Bail:
5. The pandect providing for bail is Chapter XXXlll
comprises Sections 436 to 450 of the CrPC, of which Sections G
437 and 439 are currently critical. Suffice it to state that Section
438 which deals with directions for grant of bail to persons
apprehending arrest does not mandate either the presence of
the applicant in Court or for his being in custody. Section 437,
inter alia, provides that if any person accused of, or suspected
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A of the commission of any non-bailable offence is arrested or
detained without warrant by an officer in charge of a police
station or if such person appears or is brought before a Court
other than the High Court or Court of Session, he may be
released on bail in certain circumstances.
B
c
D
E
F
G
H
6. For facility of reference, Sections 437 and 439, both
covering the grant of regular bail in non-bailable offences are
reproduced hereunder. Section 438 has been ignored because
it is the composite provision dealing only with the grant of
anticipatory bail.
"437. When bail may be taken in case of nonbailable offence.- (1) When any person accused of, or
suspected of, the commission of any non-bailable offence
is arrested or detained without warrant by an officer in
charge of a police station or appears or is brought before
a Court other than the High Court or Court of Session, he
may be released on bail, but -
(i) such person shall not be so released if there
appear reasonable grounds for believing that he has been
guilty of an offence punishable with death or imprisonment
for life;
(ii) such person shall not be so released if such
offence is a cognizable offence and he had been
previously convicted of an offence punishable with death,
imprisonment for life or imprisonment for seven years or
more, or he had been previously convicted on two or more
occasions of a cognizable offence punishable with
imprisonment for three years or more but not less than
seven years:
Provided that the Court may direct that a person
referred to in clause (i) or clause (ii) be released on bail if
such person is under the age of sixteen years or is a
woman or is sick or infirm:
SUNDEEP KUMAR BAFNA v. STATE OF
501
MAHARASHTRA [VIKRAMAJIT SEN, J.]
Provided further that the Court may also direct that
A
a person referred to in clause (ii) be released on bail if it
is satisfied that it is just and proper so to do for any other
special reason:
B
Provided also that the mere fact that an accused
person may be required for being identified by witnesses
during investigation shall not be sufficient ground for
refusing to grant bail if he is otherwise entitled to be
released on bail and gives an undertaking that he shall
comply with such directions as may be given by the Court:
C
Provided also that no person shall, if the offence
alleged to have been committed by him is punishable with
death, imprisonment for life, or imprisonment for seven
years or more, be released on bail by the Court under this
sub-section without giving an opportunity of hearing to the
D
Public Prosecutor.
(2) If it appears to such officer or Court at any stage
of the investigation, inquiry or trial, as the case may be,
that there are not reasonable grounds for believing that the
accused has committed a non-bailable offence, but that
there are sufficient grounds for further inquiry into his guilt,
the accused shall, subject to the provisions of section 446A
and pending such inquiry, be released on bail, or at the
discretion of such officer or Court, on the execution by him
of a bond without sureties for his appearance as
hereinafter provided.
E
F
(3) When a person accused or suspected of the
commission of an offence punishable with imprisonment
which may extend to seven years or more or of an offence
G
under Chapter VI, Chapter XVI or Chapter XVII of the
Indian Penal Code (45 of 1860) or abetment of, or
conspiracy or attempt to commit, any such offence, is
released on bail under sub- section (1) - the Court shall
impose the conditions -
H
A
B
c
D
E
F
G
H
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(a) that such person shall attend in accordance with
the conditions of the bond executed under this Chapter,
(b) that such person shall not commit an offence
similar to the offence of which he is accused, or
suspected, of the commission of which he is suspected,
and
(c) that such person shall not directly or indirectly
make any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade
him from disclosing such facts to the Court or to any police
officer or tamper with the evidence, and may also impose,
in the interests of justice, such other conditions as it
considers necessary.
(4) An officer or a Court releasing any person on bail
under sub-section (1) or sub- section (2), shall record in
writing his or its reasons or special reasons for so doing.
(5) Any Court which has released a person on bail under
sub- section (1) or sub- section (2), may, if it considers it
necessary so to do, direct that such person be arrested
and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a
person accused of any non-bailable offence is not
concluded within a period of sixty days from the first date
fixed for taking evidence in the case, such person shall, if
he is in custody during the whole of the said period, be
released on bail to the satisfaction of the Magistrate, unless
for reasons to be recorded in writing, the Magistrate
otherwise directs.
(7) If, at any time after the conclusion of the trial of a person
accused of a non-bailable offence and before judgment is
delivered, the Court is of opinion that there are reasonable
grounds for believing that the accused is not guilty of any
such offence, it shall release the accused, if he is in
SUNDEEP KUMAR BAFNA v. STATE ui
503
MAHARASHTRA [VIKRAMAJIT SEN, J.]
custody, on the execution by him of a bond without sureties
A
for his appearance to hear judgment delivered.
439. Special powers of High Court or Court of
Session regarding bail -
(1) A High Court or Court of Session may directB
(a) that any person accused of an offence and in
custody be released on bail, and if the offence is of the
nature specified in sub-section (3) of section 437, may
impose any condition which it considers necessary for the c
purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when
releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session
D
shall, before granting bail to a person who is accused of
an offence which is triable exclusively by the Court of
Session or which, though not so triable, is punishable with
imprisonment for life, give notice of the application for bail
to the Public Prosecutor unless it is, for reasons to be
E
recorded in writing, of the opinion that it is not practicable
to give such notice.
(2) A High Court or Court of Session may direct that
any person. who has been released on bail under this
Chapter be arrested and commit him to custody."
7. Article 21 of the Constitution states that no person shall
be deprived of his life or personal liberty except according to
procedure established by law. We are immediately reminded
F
of three sentences from the Constitution Bench decision in
G
P.S.R. Sadhanantham vs Arunachalam (1980) 3 SCC 141,
which we appreciate as poetry in prose - "Article 21, in its
sublime brevity, guards human liberty by insisting on the
prescription of procedure established by law, not fiat as sine
qua non for deprivation of personal freedom. And those
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A procedures so established must be fair, not fanciful, nor formal
nor flimsy, as laid down in Maneka Gandhi case. So, it is
axiomatic that our Constitutional jurisprudence mandates the
State not to deprive a person of his personal liberty without
adherence to fair procedure laid down by law". Therefore, it
B seems to us that constriction or curtailment of personal liberty
cannot be justified by a conjectural dialectic. The only restriction
allowed as a general principle of law common to all legal
systems is the period of 24 hours post-arrest on the expiry of
which an accused must mandatorily be produced in a Court so
C that his remand or bail can be judicially considered.
8. Some poignant particulars of Section 437 CrPC may
be pinpointed. First, whilst Section 497(1) of the old Code
alluded to an accused being "brought before a Court", the
present provision postulates the accused being "brought before
D a Court other than the High Court or a Court of Session" in
respect of the commission of any non-bailable offence. As
observed in Gurcharan Singh vs State (1978) 1 SCC 118,
there is no provision in the CrPC dealing with the production
of an accused before the Court of Session or the High Court.
E But it must also be immediately noted that no provision
categorically prohibits the production of an accused before
either of these Courts. The Legislature could have easily
enunciated, by use of exclusionary or exclusive terminology, that
the superior Courts of Sessions and High Court are bereft of
F this jurisdiction or if they were so empowered under the Old
Code now stood denuded thereof. Our understanding is in
conformity with Gurcharan Singh, as perforce it must. The
scheme of the CrPC plainly provides that bail will not be
extended to a person accused of the commission of a nonG bailable offence punishable with death or imprisonment for life,
unless it is apparent to such a Court that it is incredible or
beyond the realm of reasonable doubt that the accused is guilty.
The enquiry of the Magistrate placed in this position would be
akin to what is envisaged in State of Haryana vs Bhajan Lal,
H 1992 (Supp)1 SCC 335, that is, the alleged complicity of the
SUNDEEP KUMAR BAFNA v. STATE OF
505
MAHARASHTRA [VIKRAMAJIT SEN, J.]
accused should, on the factual matrix then presented or
A
prevailing, lead to the overwhelming, incontrovertible and clear
conclusion of his innocence. The CrPC severely curtails the
powers of the Magistrate while leaving that of the Court of
Session and the High Court untouched and unfettered. It
appears to us that this is the only logical conclusion that can
B
be arrived at on a conjoint consideration of Sections 437 and
439 of the CrPC. Obviously, in order to complete the picture
so far as concerns the powers and limitations thereto of the
Court of Session and the High Court, Section 439 would have
to be carefully considered. And when this is done, it will at once c
be evident that the CrPC has placed an embargo against
granting relief to an accused, (couched by us in the negative},
if he is not in custody. It seems to us that any persisting
ambivalence or doubt stands dispelled by the proviso to this
Section, which mandates only that the Public Prosecutor should
0
be put on notice. We have not found any provision in the CrPC
or elsewhere, nor have any been brought to our ken, curtailing
the power of either of the superior Courts to entertain and
decide pleas for bail. Furthermore, it is incongruent that in the
face of the Magistrate being virtually disempowered to grant
bail in the event of detention or arrest without warrant of any
E
person accused of or suspected of the commission of any nonbailable offence punishable by death or imprisonment for life,
no Court is enabled to extend him succour. Like the science
of physics, law also abhors the existence of a vacuum, as is
adequately adumbrated by the common law maxim, viz. 'where
there is a right there is a remedy'. The universal right of
personal liberty emblazened by Article 21 of our Constitution,
being fundamental to the very existence of not only to a citizen
F
of India but to every person, cannot be trifled with merely on a
presumptive plane. We should also keep in perspective the fact
G
that Parliament has carried out amendments to this pandect
comprising Sections 437 to 439, and, therefore, predicates on
the well established principles of interpretation of statutes that
what is not plainly evident from their reading, was never
intended to be incorporated into law. Some salient features of
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A these provisions are that whilst Section 437 contemplates that
a person has to be accused or suspect of a non-bailable
offence and consequently arrested or detained without warrant,
Section 439 empowers the Session Court or High Court to
grant bail if such a person is in custody. The difference of
B language manifests the sublime differentiation in the two
provisions, and, therefore, there is no justification in giving the
word 'custody' the same or closely similar meaning and content
as arrest or detention. Furthermore, while Section 437 severally
curtails the power of the Magistrate to grant bail in context of
C the commission of non-bailable offences punishable with death
or imprisonment for life, the two higher Courts have only the
procedural requirement of giving notice of the Bail application
to the Public Prosecutor, which requirement is also ignorable
if circumstances so demand. The regimes regulating the
D powers of the Magistrate on the one hand and the two superior
Courts are decidedly and intentionally not identical, but vitally
and drastically dissimilar. Indeed, the only complicity that can
be contemplated is the conundrum of 'Committal of cases to
the Court of Session' because of a possible hiatus created by
E the CrPC.
Meaning of Custody:
9. Unfortunately, the terms 'custody', 'detention' or 'arrest'
have not been defined in the CrPC, and we must resort to few
F dictionaries to appreciate their contours in ordinary and legal
parlance. The Oxford Dictionary (online) defines custody as
imprisonment, detention, confinement, incarceration,
internment, captivity; remand, duress, and durance. The
Cambridge Dictionary (online) explains 'custody' as the state
G of being kept in prison, especially while waiting to go
to court for trial. Longman Dictionary (online) defines 'custody'
as 'when someone is kept in prison until they go to court,
because the police think they have committed a crime'.
Chambers Dictionary (online) clarifies that custody is 'the
H condition of being held by the police; arrest or imprisonment;
SUNDEEP KUMAR BAFNA v. STATE OF
507
MAHARASHTRA [VIKRAMAJIT SEN, J.]
to take someone into custody to arrest them'. Chambers'
A
Thesaurus supplies several synonyms, such as detention,
confinement, imprisonment, captivity, arrest, formal
incarceration. The Collins Cobuild English Dictionary for
Advance Learners states in terms of that someone who is in
custody or has been taken into custody or has been arrested
B
and is being kept in prison until they get tried in a court or if
someone is being held in a particular type of custody, they are
being kept in a place that is similar to a prison. The Shorter
Oxford English Dictionary postulates the presence of
confinement, imprisonment, durance and this feature is totally c
absent in the factual matrix before us. The Corpus Juris
Secundum under the topic of 'Escape & Related Offenses;
Rescue' adumbrates that 'Custody, within the meaning of
statutes defining the crime, consists of the detention or restraint
of a person against his or her will, or of the exercise of control
0
over another to confine the other person within certain physical
limits or a restriction of ability or freedom of movement.' This
is how 'Custody' is dealt with in Black's Law Dictionary, (9th
ed.