Solanki Ravibhai Dipubhai v. State

S.M. SONI, J

(1) WHETHER the applicants who apprehend arrest on the charge of non-cognizable offence punishable with death or imprisonment for life are entitled to be released on anticipatory bail pending investigation is a question to be answered in this application.

(2) HEARD learned Advocate Mr. K. J. Shethna for the applicants, learned A. P. P. Shri M. A. Bukhari for the opponents Nos. 1 and 2 -State and the Investigating Officer and learned Advocate Mr. P. M. Thakkar for the original complainant-father of the victim. Mr. Thakkar is given audiance with a positive understanding that he has no locus standi, but, only on humanitarian ground representing the father of the victim.

(3) BEFORE the application be decided on merits, it is necessary to decide as to which of the judgments - Gurbakshsingh v. State of Punjab and Haryana, (AIR 1980 SC 1632 [LQ/SC/1980/169] ) should be followed or Kiran Devi v. State of Rajasthan (1987 Supp. SCC 549) is required to be followed as both form precedent under Art. 141 of the Constitution of India. It is known that a pronouncement of law by Division Bench of the Court is binding on a Division Bench of the same or a smaller number of Judges and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full court or a Constitutional Bench of the Court. The judgment in the case of gurbakshsingh is a judgment rendered by a Division Bench of five Judges, while the judgment in Kiren Devi case (supra) is rendered by a Division Bench of two Judges. It will also be pertinent to state that the question before both the Benches was whether the accused if apprehends arrest on an accusation of having committed a non-bailable offence is entitled to be released on anticipatory bail or not. The Supreme Court in the case of Union of India v. Raghuvirsingh (AIR 1989 SC 1933 [LQ/SC/1989/332] ) has observed in answer to the question as to the effect of law pronounced by the Division Bench in relation to a case raising same points subsequently before the Division Bench, before a smaller number of Judges. The Supreme Court has observed :

"there is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a Superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Divisions of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. "

It is not necessary that it be a decision rendered by the Full Court or a Constitutional Bench of the Court. Keeping this in mind, thus, it is clear that the pronouncement of law by the Supreme Court in Gurhakshsingh case (supra) is a precedent to be followed by this Court.

(4) IN Kiran Devi case (supra), without discussing any facts of the case and referring to the contentions of the parties, it is observed "when it is specifically observed and held that anticipatory bail should not have been granted in the murder case when the investigation was still incomplete and it is further observed that the order under appeal is set aside on principle". Therefore it can be said that the Court has set aside the order of anticipatory bail simply on the ground that the Court should not have granted anticipatory bail in a murder case when the investigation was still incomplete. If, this observation is required to be followed, then, in my opinion, this judgment adds the following words to sub-sec. (1) of Sec. 438 of the Code and they are - except in the cases, where the accusation is for an offence punishable with death or imprisonment for life, when the investigation is incomplete. The question before the Supreme Court in the case of Gurbakshsingh (supra)was whether Sec. 438 of the Code is circumscribed by the limitation imposed under Sec. 437 (1) of the Code and there it is held that Sec. 438 is not circumscribed by the limitation imposed under Sec. 437 (1) of the Code. Therefore, it cannot be read that a person accused of having committed an offence punishable with death or imprisonment for life is not entitled to anticipatory bail. Gurbakshsingh case (supra), before the Supreme Court was from the judgment of the Full Bench of the Punjab and Haryana High Court. The Full Bench of the Punjab and Haryana High Court after rejecting an application for anticipatory bail, summarised the true legal position which emerged according to them namely - (1) The power under Sec. 438, Criminal Procedure Code is of an extraordinary character and must be exercised sparingly in exceptional cases only. (2) Neither Sec. 438 nor any other provision of the Code authorises the grant of blanket anticipatory bail for offences not yet committed or with regard to accusations not so far levelled. (3) The said power is not unguided or uncanalised but all the limitations imposed in the preceding Sec. 437, are implicit therein and must be read into Sec. 438. (4) In addition to the limitations mentioned in Sec. 437, the petitioner must make out a special case for the exercise of the power to grant anticipatory bail. (5) Where a legitimate case for the remand of the offender to the police custody under Sec. 167 (2) can be made out by the investigating agency or a reasonable claim to secure incriminating material from information likely to be received from the offender under Sec. 27 of the Evidence Act can be made out, the power under Sec. 438 should not be exercised. (6) The discretion under Sec. 438 cannot be exercised with regard to offences punishable with death or imprisonment for life unless the Court at that very stage is satisfied that such a charge appears to be false or groundless. (7) The larger interest of the public and State demand that in serious casas like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Sec. 438 of the Code should not be exercised; and (8) Mere general allegations of mala fides in the petition are inadequate. The court must be satisfied on materials before it that the allegations of mala fides are substantial and the accusation appears to be false and groundless. The Supreme Court being unable to accept the alleged legal position observed

"by any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep-grained in our criminal Jurisprudence as the presumption of innocence. "

The Supreme Court while considering the 6th and 5th propositions formulated by the High Court has observed :"18. According to the sixth proposition framed by the High Court, the discretion under sec. 438 cannot be exercised in regard to offences punishable with death or imprisonment for life unless, the Court at the stage of granting anticipatory bail, is satisfied that such a charge appears to be false or groundless. Now, Sec. 438 confers on the High Court and the Court of Session the power to grant anticipatory bail if the applicant has reason to believe that he may be arrested on an accusation of having committed "a non-bailable offence". We see no warrant for reading into this provision the conditions subject to which bail can be granted under See. 437 (1) of the Code. That section, while conferring the power to grant bail in cases of non-bailable offences, provides by way of an exception that a person accused or suspected of the commission of a non-bailable offence "shall not be so released" if there appears to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. If it was intended that the exception contained in Sec. 437 (1) should govern the grant of relief under Sec. 438 (1), nothing would have been easier for the legislature then to introduce into the latter section a similar provision. We have already pointed out the basic distinction between these two sections. Section 437 applies only after a person, who is alleged to have committed a nonbailable offence, is arrested or detained without warrant or appears or is brought before a Court. Section 438 applies before the arrest is made and, in fact, one of the pre-conditions of its application is that the person, who applies for relief under it must be able to show that he has reason to believe that "he may be arrested", which plainly means that he is not yet arrested. The nexus which this distinction bears with the grant or refusal of bail is that in cases falling under Sec. 437, there is some concrete data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In cases falling under Sec. 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing. The foundation of the belief spoken of in Sec. 437 (1), by reason of which the Court cannot release the applicant on bail is, normally, the credibility of the allegations contained in the First Information report. in the majority of cases falling under Sec. 438, that data will be lacking for forming the requisite belief. If at all the conditions mentioned in Sec. 437 are to be read into the provisions of Sec. 438, the transplantation shall have to be done without amputation. That is to say, on the reasoning of the High Court, Sec. 438 (1) shall have to be read as containing the clause that the applicant "shall not" be released on bail "if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life". In this process one shall have overlooked that whereas, the power under Sec. 438 (1) can be exercised if the High Court or the Court of Session "thinks fit" to do so, Sec. 437 (1) does not confer the power to grant bail in the same wide terms. The expression "if it thinks fit", which occurs in Sec. 438 (1) in relation to the power of the High Court or the Court of Session, is conspicuously absent in Sec. 437 (1). We see no valid reason for re-writing Sec. 438 with a view not to expanding the scope and ambit of the discretion conferred on the High Court and the Court of Session, but for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefore is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal. 19. A great deal has been said by the High Court on the fifth proposition framed by it, according to which, inter alia, the power under Sec. 438 should not be exercised if the investigating agency can make a reasonable claim that it can secure incriminating material from information likely to be received from the offender under Sec. 27 of the evidence Act. According to the High Court, it is the right and the duty of the police to investigate into offences brought to their notice and therefore, Courts should be careful not to exercise their powers in a manner which is calculated to cause inteiference therewith. It is true that the functions of the Judiciary and the police are in a sense complementary and not overlapping. And, as observed by the Privy Council in King emperor v. Khwaja Nazir Ahmed, 71 Ind App 203 : (AIR 1945 PC 18 [LQ/PC/1944/36] ) : just as it is essential that everyone accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry. . . The functions of the judiciary and the police are complementary, not overlapping, and the combination of the individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function. . . " But these remarks, may it be remembered, were made by the Privy Council while rejecting the view of the Lahore High Court that it had inherent jurisdiction under the old Sec. 561-A criminal Procedure Code to quash all proceedings taken by the police in pursuance of two f. I. Rs. made to them. An order quashing such proceedings puts an end to the proceedings with the inevitable result that all investigation into the accusation comes to a halt. Therefore, it was held that the Court cannot, in the exercise of its inherent powers, virtually direct that the police shall not investigate into the charges contained in the F. I. S. We are concerned here with a situation of an altogether different kind. An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the usual conditions incorporated in a direction issued under Sec. 438 (1) are those recommended in sub-sec. (2) (i) and (ii) which require the applicant to co-operate with the police and to assure that he shall not tamper with the witnesses during and after the investigation. While granting relief under Sec. 438 (1), appropriate conditions can be imposed under Sec. 438 (2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Sec. 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Sec. 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person, released on bail by invoking the principle stated by this Court in State of U. P. v. Deoman upadhyaya, 1961 (1) SCR 14 [LQ/SC/1960/159] at p. 26 : (AIR 1960 SC 1125 [LQ/SC/1960/159] ) TO the effect that when a person not in custody approaches a Police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police. The broad foundation of this rule is stated to be that Sec. 46 of the Criminal Procedure Code does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Sec. 167 (2) of the Code is made out by the investigating agency. "

While discussing these 6th and 5th propositions, the Court has concluded that the circumstance may broadly justify the grant of bail in such cases too though of course the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal. It is further observed while considering the 5th proposition, that besides if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Sec. 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U. P. v. Deoman Upadhyaya, 1961 (1) SCR 14 [LQ/SC/1960/159] at p. 26 : (AIR 1960 SC 1125 [LQ/SC/1960/159] ) to the effect that when a person not in custody approaches a Police Officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the Police. The broad foundation of this rule is stated to be that Sec. 46 of the Cr. P. C. does not contemplate any formality before a person can be said to be taken in custody. The Supreme Court has therefore said that there cannot be a straight jacket formula for grant or refusal of anticipatory bail. The Supreme Court has observed :"generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. Thus, the two facts, namely, that the accusation of the offence punishable with death or imprisonment for life and pendency of investigation were also before the supreme Court in Gurbakshsingh case (supra). Thus, the pronouncement of law by the Supreme Court in the case of Gurbakshsingh (supra) was binding on the Division bench who heard the Kiran Devi case (supra). It is unfortunate that Gurbakshsingh case (supra) was not cited before the Division Bench who heard Kiran Devi case (supra). Thus, in view of the observation in Gopal Upadhyaya v. Union of India, (AIR 1987 SC 413 [LQ/SC/1986/500] ), Gurbakshsingh case (supra) forms the precedent. The observation there is: when a question is answered expressly or by necessary implication we cannot ignore the answer by referring to the decisions appealed against and holding that, the real question that must be considered to have been answered was something else. That is not our understanding of the law of precedents. What the Judges expressly decided or what they must be considered to have decided by necessary implication by reference to the facts stated by the Judges themselves are what constitute precedents. We cannot traverse beyond the judgment, ignoring what has been said in the judgment. "

Thus, it is clear that in view of Gurbakshsingh case (supra), despite that applicants are accused of an offence punishable with death or imprisonment for life and their investigation is pending, their case is required to be considered on the merits of the case. The application cannot be straightway thrown away in view of the observation in Kiran Devi case (supra).

(5) IN view of the above discussion, what then should be the guiding principles to exercise discretion under Sec. 438 of the Code Exercise of discretion under Sec. 438 of the Code is a stage prior to exercise of discretion under Sec. 437 or 439 of the Code. That is prior to arrest. Thus, if the court is satisfied that by allowing the persons apprehending arrest, the investigation is either to suffer or is likely to be prejudiced, as it may appear on perusing the case diary, the Court should refuse to exercise such discretion. On the other hand, if such person remained at large, the prosecution is neither to be prejudiced nor suffer any hindrance, then the application is required to be considered like one of the person arrested of non-bailable offence asking for bail. If from the facts and circumstances and evidence on record (including case diary), if person can be granted bail, even if arrested, then there may be no harm in granting anticipatory bail to such person, because such person is likely to be released on bail even if arrested. Keeping in mind this position of law having emerged from the discussion hereinabove, it is to be considered whether the applicants are entitled to excercise of discretion in their favour.

(6) IN view of the above discussion, it is now necessaiy to decide whether the applicants are entitled to be released on anticipatory bail in the facts and circumstances of the case.

(7) THERE is neither any allegation nor any whisper nor any circumstance suggested by the learned A. P. P. that if applicants are allowed to remain at large, the investigation is likely to suffer or be prejudiced or be crippled in securing and of obtaining and or procuring some evidence against the applicants. In absence of such apprehension of prosecution, it cannot be said that the investigation will or is likely to hamper if applicants remain at large.

(8) DECEASED when he was going on a scooter in company of his neighbour at late hours of night at about 1-00 a. m. of the night of 10th and llth august, 1991, seme unknown persons for unknown reasons assaulted him with sticks when they were near a temple situated near Sardarnagar, kodinar, District Amreli. This fact was disclosed in the complaint recorded by Shahibaugh Police Chowky at Civil Hospital, O. P. D. of Ahmedabad on 14-8-1991. According to the complaint, despite the fact of assault at 1. 00 am. of llth August, 1991, the injured was taken to R. M. Wala Smarak Trust Hospital at about 11. 15 a. m. from where after preliminary treatment, they took voluntary discharge. As the health of the victim deteriorated, on 12/08/1991, he was again removed to that Trust Hospital at about 11-00 p. m. from where it was advised to remove him to Ahmedabad and was brought to Ahmedabad on 14-8-1991 where he died in the evening. Prior to this complaint, complainant has also stated before the Doctor in the morning of 11-8-1991 that his son is injured by vehicular accident as the scooter on which he was going slipped away. In view of the complaint recorded by the Ahmedabad Police, Ahmedabad police registered the offence at 0 number and despatched it to Kodinar. Kodinar police having registered the offence, started investigation and the complainant who had left for Delhi was called back for recording his further statement and his further statement was recorded on 26-8-1991. In that statement, he has come out with names of the applicants and the name of one Dinesh Solanki. As the names of the applicants and one Dinesh Solanki were disclosed in the further statement, Gujarati daily "jai Hind" dated 27-8-1991 broke the news that the present applicants and one Dinesh Solanki are the assailants of the deceased. In view of that newspaper item, the applicants have preferred this anticipatory bail application.

(9) I have called for the case diary from the Investigating Officer and the same was produced before me and I perused the same. Lalit is a star witness as he was the pillion rider with the victim when the victim was assaulted. Lalit does not speak anything about the incident. There are three versions of the complainant, one after another. The first version before the doctor for the cause of injury, is the accident and not assault. In second verison, that is the complaint, cause of injury is the assault but no knowledge about as to who were the persons, how many were they and what was the cause of the assault; and in the third version, he comes with the names of the accused, number of the accused, weapons used, and the cause of assault also. There is nothing on record to show what Lalit a real source of information said about the incident. Thus, this is the only material with the investigating agency till the date of hearing of this application.

(10) APPLICANTS allege that they are involved in the case because of the political vendetta. Motive attributed to the applicants by the complainant is the business rivalry. It will be relevant to refer that applicants Nos. 1 to 3 are the members of the same family and are the first degree cousins. Applicant no. 4 is a friend of applicant No. 1. With these facts, it is to be decided whether the applicants are entitled to grant of anticipatory bail.

(11) TAKING into consideration the three versions, third is improvement of the second, which is quite contrary to first involving the applicants, are to be borne in mind while considering the case against the applicants. The complaint and the improved statement has laid foundation for the case against the accused. Investigation does not refer as to what is the say of lalit as to incident. In absence of his say any information on record is hearsay. Keeping the facts and circumstances on record the following order.

(12) IN the result, the applicants accused are ordered to be released on bail on each of them furnishing a personal bond of Rs. 10,000 (Ten thousand)and a solvent surety of like amount, in case of their arrest by Kodinar Police in C. R. No. 1-112 of 1991, subject to following conditions namely -1. The applicants shall remain out of Amreli district till the trial commences; 2. They shall not enter Amreli district; 3. If the investigating agency requires the presence of the applicant saccused, they be called at Una; 4. If the investigating agency needs the presence of the accused in Kodinar itself, they shall obtain necessary permission from the learned Judicial magistrate (First Class) at Kodinar; 5. The petitioners shall supply their addresses of their residence of the place out of Amreli district to the investigation agency. 6. Applicants-accused shall report at the nearest Police Station where they reside on every Saturday between 3-00 to 5-00 p. m. Direct service permitted. Rule made absolute.