Shri Kashinath Sarkar and Others vs The State of Tripura

T.N. Singh, J.—The preliminary objection taken in this case challenging the jurisdiction of this Court to entertain the instant application u/s 438 Code of Criminal Procedure has acquired the complexion of an important question of law. Because the Petitioners had earlier invoked unsuccessfully jurisdiction of the Court of Session in the matter, it is submitted, a second application this Court for the same relief is not maintainable. The Petitioners made their choice and, it is submitted, the provision corn-template that they thereby exhausted their, right to the relief contemplated thereunder. Whether or not the is liberty was jeo pardised this Court will not hear them, so it is asserted.

Learned Public Prosecutor, Tripura, Mr. S. Deb has done good home work in this case and has dug out authorities impress me by the weight thereof in pressing forcefully the preliminary objection. A Full Bench of the Allahabad High Court in Onkar Nath Asrawal and Others Vs. State, on a reference made to it, decided the question in similar circumstances against the bail-Petitioner, so it is contended before me by Mr. Deb. However, according to me the question which their Lordships In that case were asked to decide was a rent one. The question was, whether an application u/s 438 is maintainable in the High Court without such an application having been moved and rejected in the Court of Session? It was answered in the Affirmative. It was held in that case that two forums are contemplated u/s 438 for moving an application for anticipatory bail and the jurisdiction of both Courts, Court of Session and the High Court are concurrent. It is true, the Court also observed, that it was left to the person to choose the forum but at the same time it was held that the provision read as a whole did not prima facie create any Bar that he must first apply to the Court of Session before coming to the High, Court to seek his redress. The central theme of the decision, it appears to me, is that the High Court which was invested to entertain an application u/s 438 must exercise the jurisdiction in an "unfettered''" manner and therefore the fact that the Petitioner had not moved Court of Session initially, which would be some form "fetter", has to be ignored. The next decision on which reliance is placed by Mr. Deb is one which unambiguously and in so uncertain terms supports Mr. Deb''s contention. A Division Bench of the Calcutta High Court in Amiya kumar Sen Vs. State of West Bengal, categorically held that the person who had applied to Sessions Court and his application was rejected he could not make fresh application to the High Court on the same ground. Herein too, their Lordships considered Section 438 from the view point of a "choice" and observed that it was open to a party to choose his forum and because it was a question of choice it impliedly ''''restricted" the choice or in the words the provision was for "alternative choice" which, according to their Lordship?, was -consistent with the object of the 1973 Code to avoid delay in disposal of criminal cases and to avoid the abuse of processes of the Court and also wastage of Court''s time. The Calcutta Bench also considered etymologically import of the word "on" used in Section 438(1) and placing a ''''grammatical construction" on the said provision held that it was used in disjunctive sense or in other words in "alternative or exclusive sense".

Before dealing with leading case on the subject Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, I may first read the relevant provision, indeed only its relevant portion:

438(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

However, it is necessary also to observe in this connection that the entire provision relating to "Direction for grant of bail to person apprehending arrest" which was for the first time brought on the statute book, is contained in Section 438 which is reposited in Chapter XXXIII of the 1973 Code, captioned "Provisions, as to Bail and Bonds''''. Indeed, the other parts of Section 438, namely, Sub-sections (2) and (3) and the other provision of Chapter, XXXIII unmistakably indicate that Section 438 is a complete Code in itself. As the provision has to be construed in its setting and context a comparison of the phraseology of Section 438 with that of Section 439 is also necessary in my opinion because, in Section 439 is similarly posited Special powers of High Court or Court of Session regarding bail" In Sub-section (1) in both cases the expression used is "High Court or the Court of Session."

Although in Gurbaksh Singh (supra) the question that has been posed before me did not come up for consideration some observations made therein by the apex Court, are relied on by Mr. Deb. The matter came up before their Lordships in an appeal by special leave from a decision of the Punjab and Haryana High Court which had refused bail u/s 438 to the Appellant. What was squarely and directly in issue in that case was the ambit not of the jurisdiction of the two Courts but of the discretion of each Court in dealing with an application u/s 438. The Court held that "The High Court and the Court of Session to whom the application for ancipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the facts and circumstances of the case and on such condition as the case may warrant." While saying so their Lordships also added as follows:

There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher Courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above ail because, discretion has always to be exercised by Courts judicially and not according to whim, caprice or fancy.

What however is more significant according to me, to be noted is the further observation of their Lordships that "There is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges.". I say so because Mr. Deb sought to canvass before me the position that when an order is passed u/s 438 by the Court of Session it becomes revisable order because the apex Court bad said so. I do not think that their Lordships said so or otherwise even such an order could be open in revision u/s 401 Code of Criminal Procedure. Indeed if the order could not be an order revisable u/s 401 it stands to reason that their Lordships would not say that it was revisable. As I have observed above Section 438, according to me, is a complete Code and even on reading Section 401 I do not find that an order passed u/s 438 is revisable thereunder. On the other hand, the anxiety of their Lordship? to avoid the "risk in foreclosing categories of cases" in my opinion should guide me in diving the true legis lative intent of the expression "High Court or Court of Session" used in Section 438, What their Lordships observed about the object of the anticipatory bail is also noteworthy and according to me indicative of relevant guidelines for the purpose of answering the question raised in this application, I may, therefore, extract, firstly, a portion from para 39.9 of the 41st Report of the Law Commission which their Lordships quoted in their judgment

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In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

Their Lordships also observed that "The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that, he will appear to take his trial" and held that an order of anticipatory bail constitutes "an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued". In Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, etc. also the dimension added to the right of bail is noteworthy.

It is well settled in law, according to me, that when concurrent jurisdiction is conferred on two Courts or Tribunals unless the jurisdiction of one is expressly restricted in any manner on a plain reading of the concerned provision, it will be against the accepted and well established cannons of interpretation to read any implied prohibition in the exercise in any manner of the jurisdiction of any of the Courts or Tribunals. This position is amply and candidly reflected in the provisions of Sub-section (3) of both Sections 397 and 399. The new Code of 1973 for the first time invested concurrent revi-sional jurisdiction in the High Court and in the Sessions Judged and while doing so care was taken to see that when the jurisdiction was once exercised by any one of the two Courts it was not exercised for a second time by the other Court. This position is not reflected either in Section 438 or in Section 439 and both deal with beil". That apatt, it is also an Well established rule of interpretation that procedural enactments should be construed liberally and in such manner as to render the enforcement of such substantive rights effective. See AIR 1900 SC 422, Veluswami v. Raja Nainar; There cannot be any doubt that a new right, and indeed a substantive fight, albeit; of constitutional complexion, has been posted in Section 438 of the new Code and the moot question is in what manner this right can be effectively enforced.

What is therefore of signal importance in this matter is to consider whether giving a restrictive interpretation to Section 438 will accord well with the constitutional mandate of Article 21. The High Court, acting as a constitutional Court, is constitutionally obligated to act in a manner as will fulfill the mandate of Article 21. It can, therefore, be said that it must adopt such a procedure in dealing ''with an application u/s 438 which can be said to be a reasonable procedure, a procedure not restrictive of the right to personal liberty. If an application u/s 438 is refused on the mere ground that an application was earlier made and rejected by the Sessions Judge can it be called a fair and reasonable procedure? There may be circumstances when a person may not have a free but a forced choice in making first an application to the Court of Session. Should he, for that reason, lose his right to approach the High Court? The Calcutta decision has not taken into consideration this constitutional aspect and therefore, in my opinion, it is possible to say that the concept of "alternative" or "restrictive" choice, sought to be injected by their Lordships into Section 438, would be clearly violative of the constitutional mandate. Presumption of constitutionality is an accepted norm of interpretative technology and I would, therefore, with due respect to their Lordships, hold that such a concept has to be eschewed in interpreting Section 438. Indeed, the Allahabad decision, though it refers to "choise of forums" has guarded itself against importing such a consideration in its interpretation However, the consideration that the applicant, in any case had unsuccessfully moved the Court of Session can be said, on the reasoning adopted in the said decision, to put "fetters'''' on the exercise by the High Court of its concurrent jurisdiction, which, has, therefore, to be avoided.

Both decisions could not obviously anticipate what the apex Court has recently said in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, and reiterated in Prem Shankar Shukla Vs. Delhi Administration, but the Calcutta decision has also overlooked even the "general" long established, and not only the "special" emergents norma of interpretation. That the word "or" is not always disjunctive and that it is the context, setting and for that matter the intention of the legislature to be gathered therefrom and from the object of the provisions which will decide if it is to be read cumulatively or alternatively, according to me, is wel established. See Mazagaon Dock Ltd. Vs. The Commissioner of Income Tax and Excess Profits Tax, State of Andhra Pradesh Vs. Cheemalapati Ganeswara Rao and Another, Ishwar Singh Bindra and Others Vs. State of U.P., Iswar Singh Bindar. The Apex Court has also ruled that not always grammatical construction but invariably and primarily purposive construction as may promote the legislative object, must be accorded primacy in the interpretative process. See Deputy Custodian, Evacuee Property, New Delhi and Others Vs. Official Receiver of The Estate of Daulat Ram Surana, Delhi, Dy. Custodian E.P. It also bears emphasis that if two views of interpretation of a provision are possible one which favours the citizen and that too for buttressing his right to personal liberty, must be adopted. In Gurbaksh Singh, the object of the new provision (Section 438) is explained and their Lordships have taken pains to show how the new right acts as an effective antidote against the virus of threshold restriction on personal liberty.

For the foregoing reasons, I am of the opinion that the preliminary objection raised by Mr. Deb has no force and the same must, therefore, be rejected.

Mr. Deb has fairly conceded that on facts, the grant of anticipatory bail being a matter of discretion if this Court on a perusal of the application and considering the facts and circumstances of the case was disposed to allow the prayer, he had nothing to say.

Five Petitioners have approached this Court for an order of pre-arrest bail on the ground that they are wanted by the police in connection with Sidhai P.S. Case No. 7(3) of 84 u/s 304/201/120B/34 IPC. The police has raided their houses also. The third and the fifth Petitioners are not named in the F.I.R, but even against the other Petitioners there is no specific allegation. They are being hounded on mere surmises and conjectures. The deceased was a renowned smuggler and he had many enemies as he indulged in many anti-social activities. The Petitioners are small traders and cultivators and have a good reputation. It is further submitted that two other persons named in the F.I.R. were granted anticipatory bail by the learned Sessions Judge by his order passed on 27. 3. 84 and the Petitioner''s case was not properly considered by him. Upon hearing learned Counsel for the Petitioners and giving my anxious considerations to the petition and also to the submissions made in support thereof and on a perusal of the P.I.R., I am of the opinion that a case for grant of pre-arrest bail has been made out by the Petitioners. Indeed, as alluded, learned Public Prosecutor has not opposed seriously on facts the Petitioners case and indeed he could not place any material to counter the statements of the Petitioners and the submissions on facts of their learned Counsel.

I, accordingly, direct that each of the Petitioners shall be enlarged on a bail of Rs. 3,000/- each with one surety in the like amount in the event of his arrest and that the bail shall be furnished to the satisfaction of the officer concerned making the arrest. However, they shall make themselves available for interrogation as and when required and they shall not leave the local limits of the jurisdiction of the Chief Judicial Magistrate, West Tripura, Agartala, without his prior permission. It shall also be necessary for them to report at Sidhai P.S. once in every fortnight.

In the result, the application is allowed and the Misc. case is accordingly disposed of.