Jayaprakash vs State, rep. by the Station House officer

P. Devadass, J.—This petition is to extend the time to surrender and furnish the Sureties as ordered by the learned Principal Sessions Judge, Puducherry in Crl M.P. No 1394 of 2014 by his Order dated 14.10.2014.

In the said Crl. M.P. No. 1394 of 2014, with reference to a case registered by Thirukanour Police in Crime No. 87 of 2014 for offences under Sections 294(b). 324 & 506(ii) IPC, the learned Principal Sessions Judge, Puducherry granted the Petitioner, Anticipatory Bail imposing certain conditions.

In Paragraph 5 of his Order stated supra, the following conditions are prescribed:

"(i) the Petitioner shall appear and sign before the Respondent once in a day at 9.00 am. continuously for 15 days from the date of his release on bail without fail.

(ii) he shall tie available for interrogation as and when required by the Investigating Officer.

(iii) he shall not tamper with the witnesses or hamper the investigation in any manner.

If any of the conditions is violated, the bail granted to the Petitioner shall automatically stand cancelled."(emphasis supplied by us).

Thus, the learned Principal Sessions Judge, Puducherry granted 15 days'' time to furnish the Bail Bond. Further, if any one of the conditions is violated, the bail granted to the Petitioner shall automatically stands cancelled.

However, in this case, the 15 days'' period expired. Stating the reasons in Crl.M.P No.54 of 2015 the Petitioner sought for extension of time. On 08.01.2015, it was dismissed by the learned Principal Sessions Judge, Puducherry as not maintainable.

At this juncture. Petitioner approached this Court seeking extension of time as stated at the outset.

Learned Counsel for the Petitioner would submit that Section 438, Ci P.C. does not contain any self-imposed limitation. Courts cannot have any self-imposed limitation. As on date, the Bail Order of the learned Principal Sessions Judge Puducherry dated 14.10.2014 has not been set aside, cancelled in a manner known to law. Thus, the Anticipatory Bail Order is in force However, because of the expiry of time, bail bond could not be executed.

Learned Counsel for the Petitioner would submit that prescribing of time limit, namely, 15 days is not an essential part of the order. It is not the operative part of the order Only to regulate, enable the Petitioner to furnish the bail bond, a time limit has been prescribed. It is only ''directory'' in nature. It implies that always the Courts have the power to extend the said time.

Learned Counsel for the Petitioner further submitted that the Orders passed under Chapter 33 of the Code of Criminal Procedure are concerned with securing the liberty of the person The only difference as between a regular Bail Order and an Anticipatory Bail is that in case of regular bail, the person will be inside the Jail, in case of Anticipatory Bail, the person will be outside the Jail That is how. Anticipatory Bail order is also called bail before jail''. It is ''advance Bail Order''. It is a direction to the Police to release a person apprehending arrest in the event of his arrest (see Section 438. Cr.P.C.).

Learned Government Advocate (Puducherry) submitted that as on date the Anticipatory Bail order has not been cancelled and it is in force.

I have anxiously considered the submissions of the learned Counsels. It is bail v. jail Individual liberty is sacrosanct.

Courts exercising Criminal jurisdiction have full power to secure the liberty of the person. It is there Constitutional duty and obligation. They cannot put limitation on themselves, when law itself does not impose such a limitation. To do justice Courts can simply ignore technicalities and procedures. They are hand maid of justice and are not justice itself. If the Court feels that the justice is to be done or it can simply ignore the unnecessary procedure formalities and render justice.

In the Anticipator Bail Order, passed under Section 438, Cr.P.C the condition to produce sureties within 15 days is a procedural matter. It is a self created procedure by the Court. Such a condition or procedure has not been prescribed in the Code of Criminal Procedure itself.

Now, in this case, in Crl M.P No. 1394 of 2014, the learned Principal Sessions Judge, Puducherry was pleased to grant Anticipatory Bail to the petitioner. The Order directing release of the Petitioner in the event of his arrest is the essential feature of an Order passed under Section 438, Cr.P.C. The other aspects are non-essential features in an order granting Anticipatory Bail. The essential features of an Order cannot be tinkered de hors law, without hearing the parties.

As regards to the non-essential features in the Anticipatory Bail Order, namely, prescribing 15 days'' time to surrender, Courts always have the power to extend the surrender period/date. There is no res judicata to these orders.

An Anticipatory Bail Order which has not been cancelled, will remain as it is Not extending the time to surrender will leads to some practical problem. Police cannot arrest because already Bail Order is there, the accused also cannot furnish the bail bond. One of the attributes and quality of a judicial power is its magnanimity. The majesty of justice rests on magnanimity.

In P. Kala v. State, rep. by the Inspector of Police, Tiruppur District, 2013 (4) MLJ (Crl.) 367, the Court made the following observations:

"4. Petitioner filed Crl. M.P. No 1318 of 2013 stating reasons as to why he could not surrender within 15 days and sought for extension of time.

The learned Sessions Judge was of the view that already Anticipatory Bail granted stood cancelled finis dismissed the Petition on 23.9.2013.

Whether Bail or Anticipatory Bail they are concerned with liberty of the individuals. It is basic that ground for granting bail and cancellation of bail are entirely different. A pre-arrest bail once granted can be cancelled and in a maimer known to law. Before cancelling it, opportunity shall be given to the person. Thus, there cannot be automatic cancellation of bail or anticipator bail as the case may be.

When Anticipatory Bails are granted, it is usual to prescribe time limit within which the Petitioner shall surrender and execute the bond. It other words, time limit to work out the Bail Order. But, when the date expires bail order will not, should not expire. Unless it is cancelled in a manner known to law after giving opportunity to the Petitioner, it will be in force. There may be cases for certain reason beyond the control of the Accused, he could not surrender. It may be due to the bottlenecks created by the Police, Complainant side or poverty or sickness or failure of fault on the part of the Petitioner''s Lawyer or communication gap or some natural calamity or calamity in the house of the Petitioner. In the circumstances, if sufficient reason is given, the Court can extend the time to surrender and execute the bail bond.

There cannot be self-imposed limitation by the Court Especially in a Bail Order, Anticipatory Bail Order which are concerned with the liberty of the individuals.

But the present Bail Order dated 7.9.2013 could not be worked out because time limit fixed ls over. That Bail Order could be activated by extending the time to surrender. It would be the proper way, particularly, in the light of Article 21, Constitution of India which guarantees liberty and personal freedom of the individuals Instead of doing it, the learned Principal Sessions Judge, Tiruppur indulged in hair-splitting exercise and gave too much importance to technicalities and deprived himself of his own power to extend the time. When there is clash between technicalities and justice, justice must prevail. Indian Courts are not Court of law alone, they are Courts of justice also. For tHe sake of technicality, justice cannot be thrown away as Courts are for doing delivering justice to do justice and also to undo injustice.

In the circumstances, this Court is of the firm view that there cannot be self imposed limitation to anticipatory Bail Orders.

The learned Principal Sessions Judge, Tiruppur could have liberally considered the time extension Petition in Crl. M.P. No.1318 of 2013. If he finds that purposely the Bail Bond was not executed, which is very rare, he could have refused the extension of time, that too after hearing the party. Now, this Court will give live current to the pre-arrest Bail Order dated 04.09.2013 by extending time to surrender and execute the bonds."

Now, looking from this angle and in the eye of law the decision of the learned Principal Sessions Judge, Puducherry is unsustainable in law.

In the circumstances, ordered as under:

(i) 15 days from the date of receipt of a copy of this Order is granted to surrender and furnish the Bari Bond in pursuance of the Anticipatory Bail Order of the learned Principal Sessions Judge, Puducherry in Crl. M.P. No. 1394 of 2014 dated 14.10.2014.

(ii) Consequently, the Order of the learned Principal Sessions Judge, Puducherry passed in Crl. M.P. No 54 of 2015 on 08.01.2015 is vacated.

(iii) It is made clear that no further time will be given.

Accordingly, this Criminal Original Petition is disposed of.