State vs Sajjan Singh

Teja Singh, C.J.—A case u/s 25(2), Prevention of Corruption Act was registered against S. Sajjan Singh, Sub-Divisional Officer of the Public Works Department, (I.B.), of the Punjab at Police Station Anandpur Sahib, District Hoshiarpur. On 3-1-1953, Sajjan Singh who was then posted at Dedna in the District of Patiala made an application u/s 497, Criminal P.C., to the Additional District Magistrate, Sangrur. He alleged that the case against him was false and baseless and since he apprehended that if arrested in connection therewith he would be subjected to humiliation, he prayed that the Court

may be pleased to accept bail from him and order him to be enlarged on bail on his furnishing personal surety.

On that very day the Additional District Magistrate passed the order the operating part of which reads as follows:

I, therefore, order that the applicant shall execute a bond for Rs. 5,000/- with a surety for the like amount for his attendance in the Police Station Anandpur Sahib whenever called upon by the Police in connection with the investigation of the case and to appear in the competent Court if called upon (to do?) so.

It appears that sometime later the Special Judge, Hoshiarpur, issued warrants for Sajjan Singh''s arrest and a couple of Police Officers came to Patiala with a view to executing those warrants. They arrested Sajjan Singh on 3-2-1953 and produced him before the District Magistrate, Patiala on the following day. The Government Pleader, Patiala argued that the Police Officers were empowered to take Sajjan Singh to Hoshiarpur in their custody. Counsel for Sajjan Singh on the other hand, urged that in view of the above order made by the Additional District Magistrate, Sangrur Sajjan Singh could not be taken under arrest and he should be released. The District Magistrate spumed the arguments of the Government Pleader, ordered that Sajjan Singh be set free immediately and directed him to appear before the Special Judge, Hoshiarpur on 11-2-53. This is what he observed in the concluding part of his order:

Under the circumstances I find no justification in sending the accused to Hoshiarpur.

Against this order Mr. Har Parshad, Assistant Advocate-General, Punjab has put in two revision petitions, No. 89 of 1953 against the order of the Additional District Magistrate dated 3-1-1953 and No. 88 of 1953, against the order of the District Magistrate dated 5-2-1953. Since the facts and the common question of law involved in both the petitions are common they will be disposed of by one order.

Mr. Har Parshad emphasises three points: The first is that there is no provision in the Criminal Procedure Code for what is generally described as the anticipatory bail. The second is that the case against Sajjan Singh having been registered at a Police Station in Hoshiarpur District within the jurisdiction of which he was alleged to have committed the offence and there being nothing to show that Sajjan Singh was going to be arrested in Sangrur District the Additional District Magistrate, Sangrur had no jurisdiction to entertain. Third is that the order made by the Additional District Magistrate Sangrur did not amount to an order of bail and did not prevent the Police from arresting Sajjan Singh in execution of a non-bailable warrant issued by the Special Judge, Hoshiarpur.

As regards the District Magistrate''s order the position taken up by Mr. Har Parshad is that he wrongly allowed Sajjan Singh the protection which he claimed by virtue of the Additional District Magistrate''s order and the only course open to him was to direct his being taken to Hoshiarpur under the custody of the Police. In support of his contention Mr. Har Parshad relied upon the recent Full Bench decision of the East Punjab High Court,-''Amir Chand. v. Crown'' AIR 1960 E.P. 53 (A) and a number of other cases to which reference shall be made hereafter. Mr. D.S. Nehra, who appeared on behalf of Sajjan Singh and opposed Mr. Har Parshad''s petitions cited Full Bench decision of the Lahore High Court,- ''Hidayatullah v. Crown'' AIR 1949 Lah 77 and certain decisions of the Indian High Courts. He maintains that when a person is accused of a non-bailable offence and he apprehends arrest by the Police the law gives him the right to appear before a Court before he is actually arrested and apply for a bail and the Court has the power to grant him a bail against his apprehended arrest.

Both sides are agreed that the only section of the Criminal P.C. under which, if at all, a Court other than a Court of Session or a High Court can grant bail to a person accused of a non-bailable offence is Section 497. The first part of Section 498 deals with the amount of bail bonds and the second part of it empowers the High Court or a Court of Session to direct that a person may be admitted to bail in any case whether there be an appeal or conviction or not. The following are the words of Sub-section (1) of Section 497.

When any person accused 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, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life:

There is appended to this sub-section a proviso, but we are not concerned with it in the present case. These words show that the clause applies only to a person who is accused of a non-bailable offence and who is, either arrested or detained without warrant by an officer of a certain rank, or who appears or is brought before a Court. The words further show that unless there appear reasonable grounds for believing that the person concerned has been guilty of an offence punishable with death or transportation for life he can be released on bail by the Court. There can be no doubt that if the person is arrested or is detained without warrant or is brought before the Court he is under a restraint and consequently the provision that he may be released on bail can offer no difficulty; the only question that the Court has to decide is whether the circumstances of the case are such that his release on bail should be ordered. The difficulty arises when the person is neither under arrest nor is detained nor is he brought before the Court by someone who may have him in his custody, but he appears voluntarily, because the question then would be ''Can he be released on bail?

The use of the word "released" in my opinion implies that even though the person concerned be free unless the Court grants him bail it can take him into custody and order his detention. Any other construction would be inconsistent with Sections 500 and 501. As I have already mentioned one part of Section 498 relates to the amount of surety bond and the second with the power of the High Court or the court of Session to grant bail in any case. Section 499 lays down that before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the Police officer or Court, as the case may be. Section 500 says that as soon as the bond has been executed the person for whose appearance it has been executed shall be released; and when he is in jail the Court admitting him to bail shall issue an order of release to the officer in charge of the jail, and such officer on receipt of the order shall release him. This is what Section 501 says:

If, through mistake, fraud or otherwise insufficient sureties have been accepted, or if they afterwards become insufficient, the Court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties, and, on his failing so to do, may commit him to jail.

The first thing which is significant is that the word used in Section 500 both in respect of the person who appears before the Court of his own accord and applies for bail and the person who is in jail is'' the same, i.e., ''release''. This means that at the time the order for bail is made the Court regards both the persons under restraint. The second significant thing is that if the Court later on finds that either because of mistake, etc., insufficient sureties have been accepted or the sureties have become insufficient later the Court can issue a warrant for the person released on bail and when he is brought before it it can commit him to jail. Now if the person was not under any kind of restraint at the time the order releasing him on bail was made and the Court has no power to take him into custody, I cannot understand how he can be taken into custody and committed to jail merely because of the insufficiency of the bail bonds.

It is true that the question referred to the Full Bench in the East Punjab case related to the interpretation of Section 498, that is to say, whether the said section empowers the High Court or the Sessions Court to grant bail to a person who has been placed under restraint by arrest or otherwise, but while discussing that question Khosla J. who wrote the leading judgment of the Full Bench had a great deal to say regarding Section 497 and the conclusion to which the learned Judge arrived and with which his colleagues agreed was that the Section does not permit the High Court or the Court of Session to grant bail to any one whose case is not covered by Sections 496 and 497. This is what the learned Judge observed:

The very notion of bail presupposes some form of previous restraint. Therefore, bail cannot be granted to a person who has not been arrested and for whose arrest no warrants have been issued. Section 498, Criminal P.C. does not permit the High Court or the Court of Session to grant bail to any one whose case is not covered by Sections 496 and 497, Criminal P.C. It follows therefore that a bail can only be allowed to a person who has been arrested or detained without warrant or appears or is brought before a Court. Such person must be liable to arrest and must surrender himself before the question of bail can be considered. In the case of a person who is not under arrest, but for whose arrest warrants have been issued, bail can be allowed if he appears in Court and surrenders himself. No bail can be allowed to a person at liberty for whose arrest no warrants have been issued.

It may be argued that when a Police Officer registers a case relating to a cognizable and non-bailable offence; they can arrest the accused with- out a warrant and to deprive him of the benefit of Section 497 on the plea that since there is no warrant for his arrest and he cannot therefore surrender himself is highly unfair. The perusal of the Sections of the Criminal Procedure Code which deal with the powers of the Police makes me think that there is some scope for criticism of this kind. Section 54 lays down that any Police Officer, without an order from a Magistrate and without a warrant may arrest nine classes of persons, including a person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned.

Section 58 says that a Police Officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest under this Chapter, pursue such person into any place in British India. This means that if a case against an accused person is put in Court and the Magistrate has issued a warrant for his arrest, the accused person has the right to go and surrender himself to the warrant and the Court in exercise of the discretion vested in him by law can release him on bail. In my view, a similar right would accrue to the accused if the Court instead of issuing a warrant for his arrest merely issues a summons, because if the offence is non-bailable he can appear, surrender himself for arrest and apply for bail. But if the case is still under investigation by the Police, even if there is every likelihood of the accused being arrested by the Police, he cannot go and surrender to a Court because the Court has no power to arrest him unless he were to admit that he is concerned in an offence which of course he will not do except in rare cases. The power of a Magistrate to make arrest is dealt with by Section 65 which says that

Any Magistrate may at any time arrest or direct the arrest in his presence, within the local limits of his jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

I may, however, mention that this only shows that the law is somewhat defective and there is real hardship but since my view is that there is no other way to interpret Section 497 than the way in which it has been interpreted in the above case, the Court whose duty merely is to apply the law as it stands, is helpless in the matter. By going through the order of Dass C.J. by which he referred-''Amir Chand''s case (A)'' to the Full Bench I find that he too alluded briefly to the aspect of the law with which I have dealt. He observed:

I realise that some such power to grant anticipatory bail may be useful and desirable but the Court cannot arrogate to itself such power if the Legislature has not thought fit to give such power to the Court.

With these observations, I respectfully agree.

Of the other cases cited by Mr. Har Parshad the following dealt directly with Section 497. ''Emperor v. Abubakar Mohd. Bakash'' AIR 1941 Sind 83 In this case an order granting an anticipatory bail was made by the Assistant Sessions Judge. The Chief Court of Sind set aside the order and held that Section 497

does not authorise and was not intended to authorise the grant by anticipation of ball to persons who are not arrested or detained.

Mohamed Abbas v. The Crown'' AIR 1980 Sind 19 The following were the observations made by the learned Judges in this case:

It appears to me, therefore, to be incorrect to speak of admitting any person to bail unless and until he was in custody-as incorrect as it would be, for instance, to speak of redeeming or foreclosing where there was no mortgage, or of a guardian where there was no ward. Admission to bail necessarily and essentially implies the substitution of the custody of the detaining authority by the control of the bail (surety) into whose hands the person bailed is delivered. This is the only sense in which the expression has, so far us I am aware, been used in England as well as in the countries within the Commonwealth; and this is the expression which is most commonly used for the act of permitting a person in custody to obtain his release by giving bail.

Later on, after examining the language of Sections 57, 59, 62, 63, 64 and of Sections 496 to 502 and of the forms prescribed for bailable warrants and for the bonds and bail bonds which have to be executed when bail is given, the learned Judge who wrote the judgment of the Division Bench said:

An examination of the language of Section 57, etc., appears to me to make it clear that the terminology used in matters relating to bail, in the Criminal Procedure Code, is in strictest conformity with the definition of the word ''bail'' cited above: and that the word ''bail'' is never used in the Code, except in connection with the release of a person formally or legally under arrest and in custody.

In-''State v. Hassan Mohammad'' AIR 1951 Nag 471 (E) a case under Sections 332, 342 and 392, I.P.C. was registered against five persons. Of these four were arrested in due course and were released on bail by a Magistrate Ist Class. The fifth absconded and because of him the case was remanded until 27-12-1950. Some days before the order of remand was to expire the absconding accused applied to the Magistrate for bail. The Magistrate directed his release on bail. On a revision petition by the State, the High Court set aside the Magistrate''s order holding that

Section 497 does not authorise the grant of a bail by anticipation to persons who are not arrested or detained.

''State v. Sham Lal'' AIR 1953 MB 3 (F). The facts of this case were that Hira Chand and others made an application to a Railway Magistrate alleging that the Police was trying to involve them in a false case and praying that the explanation of the police be called and in the meanwhile the applicants be admitted to bail. The Magistrate made an order releasing all the applicants on bail. Against this order the Government made a revision petition to the Sessions Judge who referred the case to the High Court. It was held that bail could not be granted to a person u/s 497 unless he was under arrest or some restraint and further that "anticipatory bail is repugnant to the Code of Criminal Procedure".

In the Lahore Full Bench case cited by Mr. D.S. Nehru the question was whether the High Court could grant an anticipatory bail u/s 498. The Bench took the view which was quite contrary to the one taken by the Full Bench of the East Punjab High Court. Cornelius J. who delivered the judgment of the Bench referred to and discussed Section 497, but he held that the powers given to the High Court by Section 498 were much wider than those given to subordinate Courts by Section 497. This by itself takes away the value of the decision as a precedent in this case, because what we have to determine is whether the Additional District Magistrate or the District Magistrate had any power to make the orders which they did u/s 497. Then this Full Bench decision was expressly dissented from by the East Punjab High Court as also by a Bench of the Sind Chief Court in -AIR 1950 Sind 19 . If I may say so with respect the views of the East Punjab High Court and the Chief Court, Sind are sound.

The other authority relied upon by Mr. D.S. Nehra is the decision of a single Bench of High Court, Madhya Bharat-''State v. Mangilal Shankarlal AIR 1952 MB 161 (G). Here a District Magistrate had granted an anticipatory bail. The Government applied to the High Court for setting aside the District Magistrate''s order. The learned Judge held that not only the High Court can grant an anticipatory bail, but the law gives the same power to a Magistrate. One of the things that weighed with the learned Judge was that the practice of granting anticipatory bail had prevailed in Gwalior State for well-nigh a quarter of a century and "I did not come across a single instance where there was any harm as a result of establishing this practice."

With all deference this argument does not impress me, because when the question is of the interpretation of a provision of law a wrong practice even though it has been in existence for a quarter of a century cannot be a ground for interpreting the provision in a particular manner. I doubt very much whether the principle of ''stare decisis'' can apply in a case of this kind. Moreover no practice has been shown to exist in our High Court. The other ground given by the learned Judge in support of his view was that the word "appears" is used in Section 497. As I have remarked in the earlier part of this order this word has to be interpreted in the context in which it appears, particularly in the light of the important phrase "release on bail" and the whole section has to be read along with Sections 500 to 502, Code of Criminal Procedure, which show that bail u/s 497 can be granted only to a person who is already under arrest or some sort of restraint or who when he appears in Court of his own accord surrenders and offers himself for arrest by the Court. Accordingly II decide the first point urged by Mr. Har Parshad in his favour.

For the decision of the second point urged by Mr. Har Parshad we have to find out whether the word "Court" appearing in Section 497 means any Court or the Court which has jurisdiction to try the accused for the offence alleged to have been committed by him. Mr. Nehra admitted that in the case of a person who is arrested or detained by the Police without warrant an application for bail u/s 497 can only be made to the Court who can take cognizance of the offence for which the accused is arrested or detained, but he maintains that when he appears of his own accord he can apply to any Court. He has not been able to cite any authority to support his contention and I do not think the contention can be correct, because it would mean that when a case for a cognisable or a non-bailable offence is registered against a person in one District it is open to him to go to any Magistrate in any other District in India and apply to him for bail whether or not he can take cognisance of the offence or he has jurisdiction to try the case that may result therefrom.

Realising this fact Mr. Nehra urged that if the accused happens to be residing or working at a place other than the one which is not the place where the case against him is registered & he apprehends that he is going to be arrested at that place there is nothing to prevent him from making an application for bail to a Magistrate of that place even though he cannot take cognizance of the case. Now, I have already held that before an application for bail can be made the accused if not already under arrest or detention, should place himself under temporary restraint by surrendering or offering himself for arrest by the Court and it cannot be denied that only that Court can put him under restraint or arrest which has the jurisdiction to take cognizance of the offence. In the present case it is not even alleged that the Additional District Magistrate Sangrur could take cognizance of the offence relating to which the case against Sajjan Singh was registered at Anandpur Sahib. So the said Magistrate had no right to entertain Sajjan Singh''s application or to order his release on bail.

It may also be mentioned that in the petition that Sajjan Singh made to the Additional District Magistrate, Sangrur he did not care to explain on what basis he was approaching that Magistrate for bail with regard to an offence that had been registered in the District of Hoshiarpur. His counsel Mr. Nehra admitted that his headquarters were at Dedna in. the District of Patiala, but he explained that because his circle extended to Sangrur District and his apprehensions were that he would be taken under arrest in that District, he applied to the Additional District Magistrate, but none of these things is mentioned in the application, and in my opinion they are all an after-thought. Accordingly this point is also decided in Mr. Har Parshad''s favour.

I now come to the order made by the Additional District Magistrate. Though it is a brief order it is not only self-contradictory but is defective on the very face of it. After describing what the nature of the application was this is what the learned Magistrate said:

The question whether the applicant should or should not be admitted to bail must rest with the Court which has got jurisdiction to try the case. I have not got the F.I.R. of the case before me nor it is known to me whether there is sufficient evidence against the accused to warrant his arrest. The affidavit at the most can be used to establish that a case against the applicant has been filed in Police Station Anandpur Sahib. But it is not for me to go into the merits of the case.

(20) Then follow the concluding sentences:

I, therefore, order that the applicant shall execute a bond for Rs. 5000/-, with a surety for the like amount for his attendance in the Police Station Anandpur Sahib whenever called upon by the Police in connection with the investigation of the case and to appear in the competent Court if called upon (to do?) so. I leave the matter of granting the bail to the applicant to the Court having jurisdiction in the case.

After having held that the decision of the question whether bail should be granted rested with the Court that had jurisdiction to try the case I cannot understand why and how the Magistrate ultimately granted the bail. His order that the applicant should execute a bond with a surety for his attendance in the Police Station Anandpur Sahib in connection with the investigation of his case when read with his observation that the order admitting the applicant to bail could only be made by the Court which had jurisdiction to try the case made the order for bail altogether nugatory and I am inclined to think that it did not afford the applicant any protection against his arrest in obedience to the warrants for his arrest that were issued by the Special Judge. Section 82, Criminal P.C. lays down that a warrant of arrest issued by a Court may be executed at any place in India and the fact that Sajjan Singh happened to be in Patiala or even in Sangrur did not prevent the execution for the warrant.

As regards the order of the District Magisttrate, he started by observing that as a District Magistrate it was his duty to see that none of the residents of the District was subjected to any harassment and if he was to be removed to another District he should be removed under legal means. Then he observed that he could not take up the question of grant of bail nor could he go behind the order of the bail passed by any other Court. Obviously ''by any other Court'' he meant the Additional District Magistrate, who according to his opinion had granted an anticipatory bail. Now if the learned District Magistrate had applied his mind to the questions which were troubling him and had turned to the relevant provisions of the Criminal Procedure Code which are given in Chap. VI, he would have realised that he had no power to interfere with the arrest made by the Police Officers in compliance with the warrant issued by the Special Judge, Hoshiarpur and the only course left open to him was to allow them to take Sajjan Singh to Hoshiarpur in custody.

His view that as a District Magistrate he could not cancel the order of the Additional District Magistrate, Sangrur was correct but he was expected to go into the legality of the order and if he came to the conclusion that the order was not warranted by law it was his duty to refer it to the High Court for proper orders. As in case of the order made by the Additional District Magistrate the order of the District Magistrate was also self-contradictory, because though he observed at one place that he was rejecting the application for bail produced on behalf of the accused (i.e. Sajjan Singh) later on he released Sajjan Singh on the score of the bail alleged to have been granted to him by the Additional District Magistrate. For all these reasons I accept both the petitions and set aside the orders of the Additional District Magistrate and the District Magistrate.

Before concluding I cannot help observing that the conduct of the Additional District Magistrate appears to be amazing. I have already observed that the order made by him was self-contradictory and though he was conscious of the fact that orders for Sajjan Singh''s bail could only be made by the Court which had jurisdiction to try the case he ended by making such an order. Then he did not apply his mind at all, to the question whether or not it was in his province to entertain the petition. As a Magistrate occupying the position of an Additional District Magistrate he could not have been unaware of the fact that the matter of granting anticipatory bail was not a simple matter and yet he readily agreed with the applicant''s request without issuing a notice to the Public Prosecutor, and even without having any legal assistance in the matter, because the record shows that Sajjan Singh was not represented by any counsel before him.