Coram – Arun Mishra (Authored), Vineet Saran, and MR Shah JJ.
validity of the amendment made to Section 10D of the Indian Medical Council Act of 1956, regulations thereunder, and similar provisions inserted in the Dentists Act & Regulations.
These amendments impinged upon the rights of private minority institutions, as NEET was imposed upon them.
MCI and DCI could not have introduced NEET as the same offends the fundamental rights guaranteed under Article19(1)(g) of the Constitution of India and the rights of religious and linguistic minorities to establish and administer educational institutions of their choice as guaranteed under Article 30 Constitution of India.
subordinate legislation could not have overriding effect over the fundamental rights guaranteed under Articles 25, 26, 29(1), and 30 of the Constitution of India.
amendment made could not take away or abridge the aforesaid rights of minorities. The right to admit students is one of the fundamental rights, thus, rider of clearing NEET examination could not have been imposed.
The issue in the batch of writ petitions decided in the present case-
Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 is ultra vires the provisions of Articles 243D and 243T including Articles 14 and 16 of the Constitution of India.
[Students should remember the Art. 243D, 243T of the constitution]
2. The State Election Commission order for reservation of 50% seats in Zilla Parishad and Panchayat Samitis in certain districts
The law issue in the matter revolved around, a constitutional bench judgment in K. Krishna Murthy (Dr.) & Ors. v. Union of India & Anr (2010) which held that no more than 50% seats will be provided in any local body by providing reservation SC/ST/OBC. The State argued that, in exceptional circumstances, the reservation can be increased more than 50%.
The provisions of the S. 12 of the Act say, the state can reserve 27% seats in the Zilla parishad and Panchayat Samitis. The following lines of the s. 12 of the Act is important:
“if in a Zilla Parishad comprising entirely the Scheduled Area, the seat to be reserved for the persons belonging to the backward class of citizens shall be 27 percent of the seats remaining (if any), after reservation of the seats for the scheduled tribes and scheduled castes and one half of the seats thus reserved will be reserved for woman. “The court then discussed the K. Krishna Murthy decision. Continue reading →
This case came to Supreme Court as a reference of a Division Bench decision of Supreme Court reported as Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31.
Conviction was challenged on the ground that
The conviction is based solely on the purported confessional statement recorded under Section 67 of the NDPS Act which has no evidentiary value because
The statement was given to and recorded by an officer who is to be treated as “police officer” and is thus, hit by Section 25 of the Evidence Act
No such confessional statement could be recorded under Section 67 of the NDPS Act. This provision empowers to call for information and not to record such confessional statements. Thus, the statement recorded under this provision is akin to the statement under Section 161 CrPC.
In any case, the said statement having been retracted, it could not have been the basis of conviction and could be used only to corroborate other evidence.”
Coram – Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah And Aniruddha Bose JJ.
This is a Reference.
Background of the Reference
The Court was hearing a reference seeking resolution of conflict between the rulings in Tika Ramji v. State of Uttar Pradesh, AIR 1956 SC 676 and State of U.P. Cooperative Cane Unions Federations v. West U.P. Sugar Mills Association, (2004) 5 SCC 430.
In Tika Ramji Case, the 5-judge bench held that,
Section 16 of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 does not include the power to fix a price;
The price of cane fixed by the U.P. Government only mean the price fixed by the appropriate Government which would be the Central Government, under Clause 3 of the Sugarcane (Control) Order, 1955.
even the provisions in behalf of the agreement contained in Clauses 3 and 4 of the U.P. Sugarcane (Regulation of Supply and Purchase) Order, 1954 provided that the price was to be the minimum price to be notified by the Government subject to such deduction, if any, as may be notified by the Government from time to time, meaning thereby the Central Government, the State Government not having made any provision in that behalf at any time whatsoever;
there is no power to fix a price for sugarcane under the U.P. Sugarcane Act or Rules and the Orders made thereunder.
Coram- Nariman J., B.R. Gavai J. and Hrishikesh Roy J.
States should ensure independence of State Election Commission, the Court held. issued directions under Article 142 of the Constitution of India to direct that all states and territories in India shall henceforth ensure that it has an Independent State Election Commissioner as mandated under Article 243(4) of the Constitution
The Goa State Election Commission [“SEC”] decided to postpone the elections to 11 Municipal Councils whose terms were to expire on 04.11.2020. The elections were scheduled to be held on 18.10.2020, which were postponed to 18.01.2021 in view of the COVID-19 pandemic situation in the State of Goa. On 03.11.2020, the Governor of Goa appointed the Law Secretary of the Government of Goa, a member of the IAS, as State Election Commissioner which duties were to be in addition to his duties as Law Secretary. By an order dated 05.11.2020, Municipal Administrators were appointed by the Department of Urban Development (Municipal Administration) for all these municipal councils whose terms had expired. [When term is expired and election could not be conducted, then one administrator is appointed by the State Government. He is normally an IAS officer for big municipalities]. By a notification dated 14.01.2021, the Goa SEC further postponed the election for a period of three months i.e., till April 2021 or the election date which may be determined by the Commission.
On 04.02.2021, the State of Goa published an amendment to Section 10(1) of the Goa Municipalities Act, 1968 [“Goa Municipalities Act”] in the official gazette. It said, the time frame for issuance of a notification for reservation of wards was stated as being “at least seven days” before the notification for schedule of dates and events of the elections. On the same day, the Director of Municipal Administration issued an order for reservation of wards for 11 municipal councils within the State of Goa. (So even though period specified was 7 days before the notification, they issued notification on the same day).
The petitioners challenged the matter in the Bombay HC. The petition was taken up on the same day when the election was conducted. The division bench of HC allowed the petitions and held that: fresh notification needs to be made after giving 10-day notice. However, HC did not grant stay to the election.
Coram– Ashok Bhushan, J.,R. Subhash Reddy, M.R. Shah JJ.
The Disaster Management Act, 2005 (hereinafter referred to as “Act, 2005”) was enacted to provide for the effective management of disasters and matters connected therewith or incidental thereto.
The enactment of Disaster Management Act, 2005 was to bring in place requisite institutional mechanisms for drawing up and monitoring the implementation of the Disaster Management Plans and other measures by various wings of the Government for preventing and mitigating effects of disasters.
Although Section 11 of Act, 2005 contemplated preparation of a National Plan, however, the National Plan was not prepared till the year 2016. It was noticed in Swaraj Abhiyan Vs. Union of India & Ors., (2016) 7 SCC 498
In the year 2016, National Disaster Management Plan was prepared as required by Section 11 of the Act, 2005. The preparation of the National Plan under Section 11 was noticed by this Court in Gaurav Kumar Bansal Vs. Union of India and Ors., (2017) 6 SCC 730. This judgment also approves of the fact that state plan and district plans were prepared
The revision of the existing National Disaster Management Plan, 2016 began in April 2017 and completed in November 2019. The National Disaster Management Plan approved by National Disaster Management Authority was notified in November 2019.
This writ petition filed as a public interest litigation and has been filed in the wake of Covid-19 pandemic, seeking direction to the Union of India to prepare, notify and implement a National Plan under Section 11 read with Section 10 of the Act, 2005 to deal with current pandemic (Covid-19) and to lay down minimum standards of relief under Section 12 of the Act, 2005 to be provided to persons affected with COVID-19.
Petitioners have also sought for directions to utilize National Disaster Response Fund (NDRF) for the purposes of providing assistance in the fight against COVID-19 and all the contributions/grants from individuals/institutions be credited in NDRF and not to PM CARES Fund and all funds collected in PM CARES Fund till date should be directed to be transferred to NDRF.
Petitioner pleads that Centre should come up with detailed guidelines under Section 12(ii) and (iii) of the Act, 2005 recommending special provisions to be made for widows and orphans and ex gratia to be provided to the kith and kin of those losing life not just because of COVID-19 infection but also due to harsh lockdown restrictions.
The petitioner’s case further is that the grants/contributions by individuals and institutions should be credited into the National Disaster Response Fund (NDRF) under Section 46 of the Act, 2005 and NDRF should be utilized for meeting the ongoing COVID-19 crisis. All the contributions made by the individuals and institutions in relation to COVID-19 are being credited into the PM CARES Fund and not in NDRF, which is clear violation of Section 46 of the Act, 2005. The NDRF is subject to CAG Audit and PM CARES Fund is not subject to CAG Audit.
In the counter affidavit, the respondents (Govt of India) have questioned the locus of the petitioner to file this public interest litigation. Counter affidavit questions as to whether there can be a permanent body set up only to file litigation on issues, which the said body subjectively considers to be of “public interest”.
National Disaster Management Plan as per Section 11 is already in place
Act, 2005 provides for a broad framework in terms of the response to be provided in pursuance to a National Plan in case of any disaster
National Plan does not and cannot contain step by step instructions or specific instructions for the day-to-day management by Government agencies in the situation of any particular and unforeseen disaster.
National Plan is not a document that contains the microscopic details as to the day-to-day management of the issues arising out of different disasters.
National Disaster Management Authority has issued various orders from time to time to take effective measures found required at the relevant point of time to contain the spread of COVID-19 in the country.
National Disaster Management Authority has framed broad template for State level and District level for contingency plan for COVID-19.
The Ministry of Health and Family Welfare has approved the India COVID-19 Emergency Response and Health Systems Preparedness Package of Rs.15000 crores, which seeks to support States/Union Territories in various aspects of management of the COVID Pandemic
there are several funds which are either established earlier or now for carrying out various relief works. PM CARES Fund is one of such funds with voluntary donations
there exist a NDRF which would not prohibit creation of a different fund like PM CARES fund which provides for voluntary donations. The directions prayed in the writ petition for transfer of funds received in PM CARES Fund in the NDRF are non-maintainable.
Bench – R.F. Nariman J., Surya Kant J., V. Ramasubramanian J.
The position of Law changed– Magistrate can direct investigation by police u/s 156(3) of CrPC post cognizance stage
The facts in brief –
On a case of fraud and land grabbing FIR was registered and charge sheet was submitted to the court for trial
Cognizance was taken and summons were issued for appearance
Accused persons filed a petition with the magistrate to (a) discharge him and (b) order further investigation under s. 173(8) of CrPC
The magistrate rejected all those petitions.
The Accused persons filed a criminal miscellaneous petition praying for order police to register FIR u/s 156(3). This was rejected by the magistrate.
Revision applications were filed in the Sessions’ court and the Sessions’ court held that further investigation needed to be done without filing a fresh FIR.
Pursuant to the said other, the case was handed over to the police and two further final forms were submitted directly to the sessions’ court.
The High Court ordered that the magistrate does not have power to direct further investigation u/s 156(3) of CrPC post cognizance stage
The question before the Supreme Court was whether further investigation can be ordered after cognizance is taken
Issue before the court – Whether, after a charge-sheet is filed by the police, the Magistrate has the power to order further investigation, and if so, up to what stage of a criminal proceeding
Findings of the Court-
CrPC is divided into 37 chapters. The present case is related to Chapter XII to XVII.
Information to the Police and their Powers to Investigate
Jurisdiction of the Criminal Courts in Inquiries and Trials
Conditions Requisite for Initiation of Proceedings
Complaints to Magistrates
Commencement of Proceedings before Magistrates
Trials before a Court of Session
Trial of Warrant-Cases by 11 Magistrates
Trials of Summons-Cases by Magistrates;
The sections of CrPC such as S. 156, S. 173, S. 190, S. 200, S. 202, S. 204 are used in the present case. They are reproduced here for the ease understanding. The reading of the section shows that, there is a neat distinction between be the power of police to investigate and the jurisdiction of courts in inquiry.
S. 156 deals with the investigation with respect to cognizable offences. Cognizable offence is defined under S. 2 (c) of CrPC. It says,
“cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.
The expression “complaint” is defined in Section 2(d) as follows:
“complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
“Inquiry” is defined in Section 2(g) as follows:
“inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;
“Investigation” is defined in Section 2(h) as follows:
“investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.
Investigation is a stage before the trial commences and the purpose is to collect evidence. Investigation which ultimately leads to a police report under the CrPC is an investigation conducted by the police, and may be ordered in an inquiry made by the Magistrate himself in “complaint” cases.
The old CrPC did not have the provision for further investigation after the charge sheet is filed. 41st Law commission Report recommended addition of provision of further investigation. The logic behind such recommendation was:
A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the magistrate concerned. It appears, however, that courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot re-open the investigation. This view places a hindrance in the way of the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the magistrate. Copies concerning the fresh material must of course be furnished to the accused.”
Right to fair trial is accepted in Maneka Gandhi (1978) and Commissioner of Police V. Registrar, Delhi High Court New Delhi (1996). Art. 21 can be violated only by procedure established by law in a fair trial. A fair trial entails from a fair investigation. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed a crime are correctly booked, and those who have not are not arraigned to stand trial. That this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted. It is the hovering omnipresence of Article 21 over the CrPC that must needs inform the interpretation of all the provisions of the CrPC, so as to ensure that Article 21 is followed both in letter and in spirit.
Pooja Pal v. Union of India (2016) was referred in which it was held speedy trial must be tempered by fair trial. In the same case the court held that trial includes inquiry, investigation, trial, appeal and retrial etc. After the introduction of S. 173(8) police has been given the power of further investigation till the end of trial. The question with the court is if police can investigate till the end of the trial then does court have the power to order investigation till the end of the trial?
The relationship between the police and the magistrate was discussed Kamalapti Trivdedi v WB (1980) where citing Abhinandan Jha V Dinesh Mishra (1967) the court held that : magistrate’s power has two facets: (a) executive and (b) judicial. If he accepts police charge sheet or the closure report then the magistrate uses his judicial power but if he returns the case for further investigation he uses his executive power as supervisor of investigation process.
In State of Bihar v J. A. C. Saldhana (1980) it was held that S. 156(3) and S. 173(8) are independent of each other and the power of magistrate under S. 156(3) does not infringe the power of police. It may be reminded that the clause 8 of 173 was added in the new code but no corresponding change was made in S. 156(3). In Sakiri Vasu v state of UP (2008) it was held power of magistrate under S. 156(3) was very wide in nature and it included everything that was necessary for the investigation.
But in Devarapalli Laxminarayan Reddy & Ors v Narayan Reddy & Ors (1976) which was followed in Tula Ram & Ors. V Kishore Singh (1977) the court held that the power under S. 156 (3) can be invoked only before the cognizance is taken. After cognizanceis taken, any power whatsoever is to be effected through S. 202 of CrPC. This was not the correct position of law because of the following grounds.
The definition of investigation has changed in the new code. Now new code S. 2(h) defines all the process of under CrPC as investigation. The word ALL was not present in the earlier code. It means investigation is not limited to the pre-cognizance stage. It goes to post cognizance stage also because it means all the process under CrPC i.e. from FIR till framing of charges. Ram Lal Narang v State (NCT of Delhi) (1979) citing H.N. Rishbud v State of Delhi (1955) had held that there was no limitation to further investigation once charge sheet was filed and cognizance was taken. In Hasanbhai valibhai Qureshi v State of Gujarat (2004) the court held that further investigation could not be denied in post cognizance stage because the trial might get delayed. In UPSC v Papaiah( 1997) the court held that the magistrate could direct further investigation u/s 173(8) of CrPC.
The case of Vinay Tyagi V. Irshad Ali & ORs (2013) was discussed in detail in the present case.
Investigation can be of three kinds
Fresh or de novo or reinvestigation
The question was whether magistrate could order further investigation u/s 173 (8) of the code.
Referring Hemant Dhasmana v. CBI [(2001)] where the Court held that although the said section does not, in specific terms, mention the power of the court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the court. When any such order is passed by the court, which has the jurisdiction to do so, then such order should not even be interfered with in exercise of a higher court’s revision jurisdiction. Such orders would normally be of an advantage to achieve the ends of justice. It was clarified, without ambiguity, that the Magistrate, in exercise of powers under Section 173(8) of the Code can direct CBI to further investigate the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the new report to be submitted by the investigating officer, would be governed by sub-section (2) to subsection (6) of Section 173 of the Code.
The Magistrate before whom a report under Section 173(2) of the Code is filed, is empowered in law to direct “further investigation” and require the police to submit a further or a supplementary report. A three Judge Bench in Bhagwant Singh [Bhagwant Singh v. Commr. of Police, (1985) also held this.
Many other cases including three judge bench in Reeta Nag v W.B. (2009) opposed the above view and held that the magistrate cannot direct further investigation.
So the court decided that: –
The Magistrate has no power to direct “reinvestigation” or “fresh investigation” (de novo) in the case initiated on the basis of a police report.
A Magistrate has the power to direct “further investigation” after filing of a police report in terms of Section 173(6) of the Code.
The view is in conformity with the principle of law stated in Bhagwant Singh case [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] by a three Judge Bench and thus in conformity with the doctrine of precedent.
Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).
The Code is a procedural document; thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to con
. It has been a procedure of propriety that the police have to seek permission of the court to continue “further investigation” and file supplementary charge sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case.”
In the present case Hardeep Singh v. State of Punjab ( 2014) ( 5 judge) was referred which discussed investigation, inquiry and trial.
In view of the above, the law can be summarized to the effect that as “trial” means determination of issues adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the court informs him of the same, the “trial” commences only on charges being framed. Thus, we do not approve the view taken by the courts that in a criminal case, trial commences on cognizance being taken.”
Section 2(g) CrPC and the case laws referred to above, therefore, clearly envisage inquiry before the actual commencement of the trial, and is an act conducted under CrPC by the Magistrate or the court. The word “inquiry” is, therefore, not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the court on the filing of the charge-sheet. The court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial.”
However, the ratio of the Devarapalli Laxminarayan Reddy & Ors v Narayan Reddy & Ors (1976) was followed in Amrutbhai Sambhi bhai Patel v Gujarat, Atul Rao v State of Karnatak and Bikas Rout v NCT and held that the magistrate has not power to further direct investigation. The power lies with the police under S. 173(8) alone. The above position was clearly wrong because the trial had not started yet. The trial starts as per Hardeep Singh case after framing of charge. So till the time the charge is not framed, trial cannot be said to have commenced. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding,
[Babubhai v. State of Gujarat & Ors. (2010) 12 SCC 254, is a judgment which distinguishes between further investigation and re-investigation, and holds that a superior court may, in order to prevent miscarriage of criminal justice if it considers necessary, direct investigation de novo, whereas a Magistrate’s power is limited to ordering further investigation. Since the present case is not concerned with re-investigation, this judgment also cannot take us much further.
Romila Thapar v. Union of India, (2018) 10 SCC 753, held that an accused cannot ask to change an investigating agency, or to require that an investigation be done in a particular manner, including asking for a court monitored investigation/] à the above two cases are not relevant in the case but important nevertheless.
Finally the court held that :-
Devarapalli Laxminarayan Reddy & Ors v Narayan Reddy & Ors (1976) Amrutbhai Sambhi bhai Patel v Gujarat, Atul Rao v State of Karnatak and Bikas Rout v NCT are over ruled.
Magistrate can order under S. 156(3) at post cognizance stage also
Whether the protection granted to a person under S. 438 CrPC should be limited to a fixed period so as to enable him to surrender before the trial court and seek regular bail
Whether the life of anticipatory bail should end at the time and stage when the accused is summoned to the court
Major case referred in this case.
Gurubaksh Singh Sibbia v State of Punjab (1980) -à Constitution bench decision
Salaludin Abdulsamad Sheikh v State of Maharashtra (1996) and other cases following its ratio
Sidhram Satlingapa Mehtre V State of Maharashtra (2011) and other cases of the following its ratio
Background of the Review petition-
Anticipatory bail is not defined in the original code. The provision of anticipatory bail was introduced in the 1973 code.
A group of cases starting from Salaludin Abdulsamad Sheikh state that anticipatory bail should contain some conditions either with reference to time or an event such as filing of charge sheet etc. After that condition is satisfied the accused should surrender to court and seek regular bail.
The other group of cases starting from Sidhram Satlingapa Mehtre state that, no condition ought to be imposed by the court while granting the anticipatory bail because it was to inure and protect the individual even if the charge was framed and trial started.
However, Sibbia case does not provide for such inflexible approach of either line. The Court held in Sibbia that, imposing condition was an issue of fact. Court could impose condition as per the circumstances of each case.
The present case settled all these issues.
The logic in Sibbia –
Sibbia referred the 41st law commission report to trace the genesis of the anticipatory bail. As per the recommendation of the 41st Law commission report, the provision of anticipatory bail was introduced in the code. The reasoning given in the report are quoted below.
Sometimes, influential persons try to implicate their rivals in false cases for the purpose of disgracing them and put in jail. Political rivalry has accentuated the problem and hence a provision of pre-arrest bail needs to be introduced.
This is a special power and to be vested only with Court of Sessions or the High Court
The power to be exercise with DISCRETION of the court and the courts should take care that such use of power / discretion does not vitiate the process of fair trial
The final order should be made only after notice to the public prosecutor
The reason for granting such bail must be recorded in writing
Sibbia said the provisions of S. 438 (Anticipatory bail) should not be interpreted in a narrow and restricted manner. Having, said this, the court in Sibbia held the following as quoted below.
The court can impose conditions while granting anticipatory bail, as it is inherently provided in the text of S. 438.
However, the power to impose conditions cannot be restricted or expanded by interpreting statute. It is actually a matter of facts and circumstances of the case
The courts are free to exercise their judicial discretion in granting anticipatory bail imposing such conditions as the facts of the case warrant.
No generalization can be made
The question of anticipatory bail interfering with the investigation process came to be discussed in the Sibbia case. It was held following King Emperor v. Khwaja Nazir Ahmed (1945) that police and court function in complementary manner and not overlapping manner and judiciary should not interfere in the matters of investigation. A question came to fore, if an accused was granted anticipatory bail, then how police could exercise the provisions of S. 27 of Indian Evidence Act. The Court in Sibbia referred State of UP v Deoman Upadhayay (1960) and held that the phrase “taken to custody” was a wider term. That never meant arrest. If a person voluntary came to police and offered to give information leading to discovery of a fact having a bearing of him subjected to a criminal charge, he was said to have surrendered to police. Anticipatory bail was granted as a protection against arrest. Nothing prevented the person to whom bail was granted to appear before the police or surrender before police and give his confessional statement.
On the question of “s. 438 being an extraordinary provision” the court held the power under S. 438 was definitely extraordinary in nature but that never meant it was to be used only in exceptional cases. It was a discretionary power with the higher courts and to be exercised with due care and caution depending on circumstances justifying its exercise.
About conditions to be imposed the court in Sibbia held, S. 438 concerned with the life and liberty of the person and hence, over generous infusion of constraints and conditions which were not found in S. 438 itself was not acceptable. The beneficent provision of S. 438 must be saved.
The Court in Sibbia also provided that certain conditions need to be satisfied before the higher courts use their discretion to use their power to grant Anticipatory bail. The conditions are quoted below.
Applicant must provide that he had a reason to believe that he might be arrested in a non-bailable case. The reason must have backing of facts and must not be a mere fear
Court of Session or High Court must apply their mind to find out whether a prima facie case was made out for use of S. 438
Filing of FIR was not condition precedent to use of S. 438. Application of Anticipatory bail could be entertained and granted even if there was no FIR.
Anticipatory bail could be granted till the time the person was not arrested.
The provision could not be invoked after the arrest
A blanket order of anticipatory bail was not be made because it might interfere with the rights and duties of police officers. It was the discretion of the courts to use the power. Based on the facts of the case, the court might impose conditions including a condition of time. But such conditions were to be imposed as per the facts of the matter and in certain exceptional cases.
The logic of Salaluddin and other similar cases
During the grant of anticipatory bail, the evidence at hand was not decided and hence, the grant of anticipatory bail had to be limited to duration only and ordinarily at the expiry of that duration the court granting anticipatory bail should leave to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge sheet was submitted.
Furthering this logic, in K.L. Verma v State it was held, grant of bail under S. 438 did not bypass the provision of S. 437 and the person to be under protection of S. 438 till the regular bail application was disposed of.
In Sunita Devi, Nirmal Jeet Kaur and Adri Dharan Das used the ratio of Salaludin and held that the protection granted under S. 438 could not be extended beyond the time period indicated in Salaluddin or till the applicant availed remedies from High Court. (Getting remedies from the High Court means the lower courts are legally bypassed). Once Charge Sheet is submitted against a person having the protection of anticipatory bail, he ought to surrender before the court and seek regular bail.
The logic of Mehtre and other similar cases
Mehtre held that the findings of Salaluddin and others were contrary to the findings of the constitutional bench in Sibbia and restriction on grant of anticipatory bail was not necessary. Citing Sibbia, the court held that while decided as per S. 438 there was no justification in reading into the conditions mentioned in S. 437.
The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply before a regular bail is contrary to the legislative intent and the judgment of the constitution bench at any point of time.
Hence, held that the judgement of Salaluddin was contrary to the spirit of Anticipatory bail and had resulted in artificial and unreasonable restriction on the scope of enactment contrary to the legislative intent.
The Court prescribed certain factors and parameters to be taken into consideration before deciding the question of anticipatory bail
Nature and gravity of accusation and the exact role of the accused
The criminal antecedent of the applicant
The possibility of the person fleeing from justice
The possibility to commit similar such offences
Whether the accusations have been made only with the object of injuring or humiliating the applicant
Impact of anticipatory bail on society at large
The court should clearly weigh the exact role of the person
Balance to be struck between free and fair investigation and unjustified arrest
The chance of tampering with evidence and threat to witnesses
Element of genuine ness to be considered while deciding the matter
The decision in the present case
There are two different lines of precedents and hence the incongruity needs to be settled.
Various arguments are-
Bail is the general rule and jail is an exception ( Datarams Singh V. State of UP)
Anticipatory bail is the panacea for apprehension of arrest
The discretion to set condition lies with the court as per the circumstances of each case and cannot be interpreted to court short its duration till the filing of charge sheet.
A logical deduction was made with respect to S. 167 (2) and statutory bail. If final form is not submitted within 60 days or 90 days the accused inside the judicial custody is granted automatic bail. However, if the charge sheet the filed then the same bail is not canceled. Hence, a protection of anticipatory bail should not go in the event of filing a charge sheet.
The power of arrest is not to be exercised mandatorily as per Joginder Kumar v State of UP, Lalita Kumari v State of UP, Arnesh Kumar v State of Bihar. Even M.C. Abraham v State of Maharashtra states, police is not mandatorily required to arrest if the anticipatory bail is rejected.
Amicus Curie in the case provided a guideline for the grant of bail application
S.O.P. for court
Condition imposed till filing of FIR
After FIR before charge sheet
Condition imposed till filing of charge sheet
After filing Charge Sheet
Discretion of Court
Sibbia did not totally exclude the imposition of conditions. However, Mehtre said conditions could not be imposed. So Salaluldin was more close to the ratio of Sibbia than Mehtre.
There was an argument against the order of anticipatory bail because it thwarted custodial interrogation. Reliance was placed on State of A.P. V Bimal Krishna Kundu, Muralidharan V state of Kerala for the above proposition.
Jai Prakash Singh v State of Bihar was relied upon wherein it was held that anticipatory bail was not essential elements of Art. 21.
Reasoning of the court –
A. Whether the protection granted to a person under S. 438 CrPC should be limited to a fixed period so as to enable a person to surrender before the trial court and seek regular bail
S. 438 was included as. Curative measure to deal with the problem of unwarranted arrest.
It is not hedge with any obligation on the court’s power to impose conditions
The only bar or restriction imposed by parliament upon the exercise of the power (to grant anticipatory bail) is by way of a positive restriction, i.e. in the case where accused are alleged to have committed offences punishable under section 376 (3) or sections 376AB or Section 376 DA or Section 376 DB of the penal code.
Parliament by law has restricted the power of the courts in certain cases such S. 376 AB, S. 376DA, S. 376 DB. It means that parliament does not want to restrict the power of anticipatory bail of court by a blanket order and exhorts to take up in case to case basis.
The text of the statue does not say, that the parliament has required the court to impose conditions. It was left with the discretion of the court to impose condition on a case to case basis. The court relied on the concept of interpretation of statues is Reserve Bank of India v Peerless General Finance and Investment CO ltd and Chandra Mohan v State of Uttar Pradesh and states that, “interpretation must depend on the text and the context. No part of statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place an everything in its place.”
Similarly, in Directorate of Enforcement v Deepak Mahajan, State of Haryana v Sampuran Singh the court held that by no stretch of imagination a judge can add to something more than what is there in the text of the statute which shows the intent of the legislature.
Deoman Upadahya case says bail is not a hindrance to custodial examination and S. 27 of Indian Evidence Act. Same logic was imposed in Vallabh das Liladhar v. Asst. Collector of Customs
Hence, there is no logic that if conditions are not imposed, fair investigation will be compromised. And hence court held that
The observation of Sallaluddin that indicate ‘such time related or investigative event related conditions should invariably be imposed at the time of grant of anticipatory bail’ are therefore over ruled.
The observation in Mhetre “ the courts should not impose restrictions on the ambit and scope of S. 438 which are not envisaged by legislature. The court cannot rewrite the provisions in the statute in the garb of interpreting it” is too wide and overruled. The court held, as per Sibbia conditions can be imposed as per the facts of the case.
B. Whether the life of anticipatory bail should end at the time and stage when the accused is summoned to the court
The logic of Gurhsaran Singh case about statutory bail referred above was followed. Hence filing of charge sheet cannot be a limiting condition for respite of bail.
Taking into custody is still permissible even after grant of bail, because as per Pradeep Ram case, without cancelling of bail on relevant consideration, the court can direct the arrest of the accused.
The court held that unless circumstances to the contrary: in the form of behavior of the accused suggestive of his fleeing from justice or evading the authority of jurisdiction of the court, or his intimidating witness or trying to intimidating them, or violate any condition imposed while granting anticipatory bail, the law does not require the person to surrender to the court on summons of trial being served on him. Subject to compliance with the conditions imposed, the anticipatory bail given to a person can continue till the end of trial.
The guidelines provided to deal with S. 438
There is no limitation of the time of filing anticipatory bail. It can be filed before FIR also. There has to be reasonable apprehension about the arrest.
The court even while granting limited anticipatory bail may issue notice to public prosecutor and obtain facts
S. 438 does not compel to impose conditions. Imposition of conditions has to be decided on the facts and circumstances of the case
Courts ought to be guided by nature and gravity of the crime before deciding on anticipatory bail.
Once granted the anticipatory bail shall remain in force till end of trial depending on the conduct and behavior of the accused. The anticipatory bail is not a blanket protection.
Order of Anticipatory bail does not restrict the rights and duties of the police officer to investigate into the charges.
Limited custody or deemed custody provided in Sibbia is sufficient for the provision of S. 27 of Indian Evidence act
If any terms or conditions are violated the prosecution can move to court to cancel the anticipatory bail
The correctness of grant of anticipatory bail can be decided on appeal to higher court at the behest of investigating agency
Sallaludin is overruled to the extent that no condition or term limiting the grant of anticipatory bail to a period of time can be given. Mehtre is overruled to the extent that no restrictive conditions can be imposed while granting the anticipatory bail.
Bench – 9J – S A Bobde, R Bhanumati, Ashok Bhushan, L Nageshwar Rao, Mohan M Shantanagoudar, S Abdul Nazeer, R Subhash Reddy, B R Gavai, Surya Kant JJ.
Decided on – 11th May 2020
Decided under inherent jurisdiction of the SC. This was a review based upon the maintainability of the reference to a larger bench when review of Sabarimala case was still pending.
Brief Facts –
Indian Young Lawyers Association filed Writ Petition challenging the validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. They demanded to direct the respondents to allow women between the age group 10-50 to worship in the Ayyappa Temple. A3 J bench of this Court referred the matter to a larger bench of 5J.
In Sabrimala in a 4:1 majority it was held that the devotees of Lord Ayyappa did not constitute a separate religious denomination and couldn’t claim the benefit of Article 26. Exclusion of women between the ages of 10 to 50 years from entry into the temple was violative of Article 25 Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 was declared as violative of Article 25 (1) as well as ultra vires Section 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.
Ranjan Gogoi CJ, and A.M. Khanwilkar J. and Indu Malhotra J. held that the scope of the freedom of religion guaranteed under Articles 25 and 26 of the Constitution needed an authoritative pronouncement by a larger bench of not less than seven Judges. They also held that the contours of judicial review in matters pertaining to essential religious practices needed to be authoritatively established. Conflict of opinion between the judgments in Commissioner Hindu Religious Endowments, Madras vs. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt, 1954, and Durgah Committee, Ajmer vs. Syed Hussain Ali, 1962pertaining to the role of the Court in matters which are essential religious practices needs to be harmonized.
R.F. Nariman J. and D.Y. Chandrachud J. dissented and held that there was no requirement for the review.