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Mahesh Kumar Sarda Maheswari v. Union Of India
Structured Summary of the Provided Opinion
Factual and Procedural Background
A Division Bench of the Calcutta High Court (G.R. Bhattacharjee and Malay Kumar Basu, JJ.) referred two questions to the present Bench (S.B. Sinha, M.H.S. Ansari and D.P. Sengupta, JJ.) challenging the correctness of another Division Bench judgment in Sadhan Chandra Kolay v. State (reported as 1999 (1) CLJ 20). The referral asked whether Sadhan Chandra Kolay correctly interpreted the Full (Special) Bench decision in Sailesh Jaiswal v. State of W.B. (1998 C.Cr L.R (Cal) 342) and whether, in light of the majority decision in Sailesh Jaiswal, the High Court has jurisdiction to grant anticipatory bail in outstation cases to a limited extent.
The matter requires reconciling the Special Bench (Five-Judge) ruling in Sailesh Jaiswal with the later Division Bench decision in Sadhan Chandra Kolay and determining whether the latter misinterpreted the Special Bench. The present Bench reviewed the Special Bench decision, the Division Bench judgment under challenge, and related authorities before answering the reference.
Legal Issues Presented
- Whether the Division Bench decision in Sadhan Chandra Kolay (1999 (1) CLJ 20), insofar as it holds that a petition for anticipatory bail under section 438 Cr.P.C. in connection with any outstation offence cannot be entertained by this Court (and is therefore not maintainable), correctly interprets the Full Bench decision in Sailesh Jaiswal v. State of W.B. (1998 C.Cr L.R (Cal) 342).
- Whether, in view of the majority decision of the Full (Special) Bench in Sailesh Jaiswal, this Court has jurisdiction to grant anticipatory bail in a fit case to a limited extent (as mentioned in that decision), even in an outstation case.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sailesh Jaiswal v. The State of West Bengal & Ors., 1998 C.Cr L.R (Cal) 342 (Special Bench) | Majority holding: a High Court/Court of Sessions ordinarily cannot exercise jurisdiction under section 438 Cr.P.C. to grant anticipatory bail for offences outside its territorial jurisdiction except to a limited extent for a transitional period (arrest and release on bail by arresting authority subject to conditions). Mishra, C.J. agreed with the limited-transitional concept but added reasons; one judge (Bhattacharjee, J.) disagreed. | The court treates the Special Bench decision as binding, reads the whole judgment, and holds that the Division Bench in Sadhan Chandra Kolay misinterpreted it. The Special Bench supports the view that anticipatory bail by a court lacking territorial jurisdiction is limited to transitional bail only. |
| Sadhan Chandra Kolay v. State, 1999 (1) CLJ 20 (Division Bench) | Held that petition for anticipatory bail under section 438 Cr.P.C. in connection with any outstation offence cannot be entertained by the High Court and is not maintainable (interpreting Sailesh Jaiswal to deny jurisdiction to HC in outstation cases). | The present Bench concludes that Sadhan Chandra Kolay misinterpreted the Special Bench in Sailesh Jaiswal and therefore overrules the Division Bench decision to the extent it conflicts with the Special Bench. |
| Syed Zafrul Hassan v. State, AIR 1986 Pat 194; 1986 PLJR 274 (Full Bench, Patna High Court) | Held that section 438 does not permit grant of anticipatory bail by any High Court or Court of Session where the accused may choose to apprehend arrest; such power vests only in the Court of Session or the High Court having jurisdiction over the place of commission of the offence. | Panigrahi, J. accepted the Patna Full Bench view as persuasive and it was relied upon in the Special Bench reasoning which the present Bench follows in concluding the limited-transitional principle. |
| Samarias Trading Co. Pvt. Ltd. v. S. Samuel, AIR 1985 SC 61 (Supreme Court) | Referred to by the Patna Full Bench and considered in its analysis (the specific principle from this decision is not detailed in the provided opinion). | Mentioned as one of the authorities considered by the Patna Full Bench (Syed Zafrul Hassan) whose reasoning was accepted by the Special Bench and taken into account by the present Bench. |
| B.R. Sinha v. The State, 1982 Cr. L.J 61 (Division Bench, Calcutta High Court) | One of the earlier Division Bench decisions considered in the doctrinal history (specific rule cited is not elaborated in the provided opinion). | The Patna Full Bench considered this Division Bench decision and recorded disapproval of it in the process of arriving at its conclusion; mentioned by the present opinion in tracing authorities. |
| Dr. L.R. Naidu v. State of Karnataka, 1984 Cr. L.J 757 | Another Division Bench decision considered in the doctrinal analysis (specific principle not detailed in the provided opinion). | Referred to as a decision considered (and disapproved) by the Full Bench of Patna in reaching its conclusion, which in turn influenced the Special Bench. |
| Dukhi Shyam Benapani v. Parasmal Rampuria, 1998 Cal. Cr. L.R 236 (Special Bench) | Principle: a learned single Judge could not take a view contrary to that of a Division Bench. | Invoked to observe that the Division Bench in Sadhan Chandra Kolay should not have proceeded to take a view contrary to the binding Special Bench decision and should not have analyzed Mishra, C.J.'s separate reasoning as if it altered the majority holding. |
Court's Reasoning and Analysis
The court proceeded by identifying the Special (Five-Judge) Bench decision in Sailesh Jaiswal as the binding authority on whether a High Court may entertain an anticipatory bail application under section 438 Cr.P.C. for offences committed outside its territorial jurisdiction.
The Bench emphasized that a judgment must be read in its entirety and construed reasonably and fairly; isolated passages cannot be read as if they were a statute. Where ambiguity appears, the entire decision and related observations must be considered to ascertain the true ratio.
On a careful review of Sailesh Jaiswal, the court concluded that the majority (Panigrahi, J., with V.K. Gupta, J. and N.A. Chowdhury, J. concurring) clearly held that the jurisdiction to grant anticipatory bail ordinarily lies with the court having territorial jurisdiction over the offence, and that a High Court or Court of Sessions lacking such jurisdiction can only exercise a limited power: to grant bail for a transitional period (i.e., directing release by the arresting authority subject to bond/conditions) so that the accused can be produced before the competent court within a reasonable time (not beyond 24 hours) for regular bail proceedings under section 81 of the Cr.P.C.
The opinion examined the recorded concurrence and separate reasoning of Mishra, C.J., who agreed with the limited-transitional jurisdiction concept and warned that anything beyond that would be in excess of jurisdiction. The court found that the Division Bench in Sadhan Chandra Kolay wrongly emphasized portions of Mishra, C.J.'s reasoning (or purported to extract a broader rule) and thereby misread the Special Bench's binding majority holding.
The Bench also noted that Panigrahi, J.'s analysis accepted earlier Full Bench reasoning from the Patna High Court (Syed Zafrul Hassan) and considered several other authorities. The present court concluded that the Division Bench in Sadhan Chandra Kolay had proceeded incorrectly by effectively departing from the Special Bench's majority holding; such a departure could not stand.
Accordingly, the court held that Sadhan Chandra Kolay misinterpreted Sailesh Jaiswal and that, consistent with the Special Bench, the High Court may exercise a limited jurisdiction under section 438 Cr.P.C. for transitional purposes only (release on bail by arresting authority subject to conditions and appearance within 24 hours before the competent local courts), but it cannot exercise full territorial jurisdiction to grant anticipatory bail on merits for offences committed outside its territorial limits.
Holding and Implications
Core Ruling: The Division Bench decision in Sadhan Chandra Kolay (1999 (1) CLJ 20) is OVERRULED to the extent that it misinterpreted the Special Bench decision in Sailesh Jaiswal. The reference posed by the earlier Division Bench is answered accordingly.
Implications:
- Direct effect: A High Court (or Court of Sessions) does not have territorial jurisdiction to grant full anticipatory bail under section 438 Cr.P.C. for offences committed outside its local limits on the merits. However, in a fit case it may exercise a limited jurisdiction to grant anticipatory bail for a transitional period — that is, it can direct that the accused, if arrested, be released on bail by the arresting authority subject to bond or conditions so that the accused can be produced before the competent local court.
- Operational consequence: When such limited (transitional) bail is granted, the accused must, within a reasonable time and not beyond 24 hours of arrest, appear before the Magistrate, Chief Judicial Magistrate or Court of Sessions within whose jurisdiction the offence is alleged to have been committed. That local authority may then consider regular bail (for example, under section 81 Cr.P.C. as contemplated in the Special Bench reasoning).
- Precedential consequence: The Special Bench decision in Sailesh Jaiswal remains binding on other benches; Sadhan Chandra Kolay, insofar as it conflicts with Sailesh Jaiswal, cannot be sustained and is overruled by this Bench.
- Further proceedings: The opinion directs that the matters be placed before the appropriate Bench for passing appropriate orders in light of this decision.
Note: This summary is strictly confined to the information and reasoning contained in the provided opinion and does not add or infer facts or legal propositions not stated therein.
S.B Sinha, J.:—The reference to this Bench has been made by a Division Bench of this Court consisting of G.R Bhattacharjee and Malay Kumar Basu, JJ. questioning the correctness of a judgment of another Division Bench in Sadhan Chandra Kolay v. State consisting of S.K Tiwari and D.P Sarkar-II, JJ. reported in 1999 (1) CLJ 20 on the following two questions:—
1. Whether the decision of the Division Bench in Sadhan Chandra Kolay v. State, 1999 (1) CLJ 20, in so far as the same holds that petition for anticipatory bail under section 438 Cr. P.C in connection with any offence of an outstation cannot be entertained by this Court, and as such, such a petition is not maintainable, is correct view of the Full Bench decision of this court in Sailesh Jaiswal v. The State Of West Bengal & Ors., 1998 C.Cr L.R (Cal) 342.
2. Whether in view of the majority decision of the Full Bench in Sailesh Jaiswal v. State of W.B, 1998 C.Cr L.R (Cal) 342, this court has jurisdiction to grant anticipatory bail in a fit case to a limited extent as mentioned therein, even in an outstation case.
2. The questions raised before us are limited, inasmuch as evidently, the question as to whether this court in exercise of its jurisdiction under section 438 of the Code of Criminal Procedure can entertain an application for grant of anticipatory bail in respect of an offence committed outside its jurisdiction, has been considered by a Five Judges' Special Bench in Sailesh Jaiswal v. The State Of West Bengal & Ors.. The main judgment in Sailesh Jaiswal's case has been delivered by Panigrahi, J. wherewith V.K Gupta, J. and N.A Chowdhury, J. concurred. Mishra, C.J however, while recording His Lordship's agreement with the view that the exercise of jurisdiction of anticipatory bail by High Court or the Court of Sessions beyond the local limits of the jurisdiction is limited to the extent of a bail for the transitional period, proceeded to assign additional reasons therefor. Bhattacharjee, J. however, disagreed with the majority view.
3. In Sadhan Chandra Kolay (supra) the Division Bench, interpreting the decision of Special Bench however, held:—
“On the other hand in the self-same judgment the then Chief Justice of this Court, namely, Mr. Justice Probha Shankar Mishra, in his deliberation has made it clear that the jurisdiction under section 438 Cr. P.C shall be exercised by the Sessions Judge or the High Court within the territorial jurisdiction of which the offence was committed. It has been made clear that passing any direction to any court outside the State, where the territorial jurisdiction does not extent, would be an exercise in excess of the power conferred by the statute. But at the same time in paragraph 37 of the self-same judgment, the Hon'ble Ex-Chief Justice clearly expressed that he concurred with the view expressed by the Hon'ble Mr. Justice Basudeva Panigrahi.”
In Sadhan Chandra Kolay, (supra), the Court upon considering the meaning of ‘High Court’ as contained in section 2(e) of the Criminal Procedure Code as also Article 214 of the constitution of India vis-a-vis provision of section 81 of the Code observed:—
“This particular power under section 81 of the Cr. P.C can be exercised by the Magistrate only when a person is arrested in connection with an offenc committed outside the territorial jurisdiction of that Magistrate and where for the arrest of such person, an warrant has been issued by the Magistrate within whose territorial jurisdiction the offence was committed. This power of granting bail as contemplated by section 81 Cr. P.C is a provision for granting bail during transitional period and this power can be exercised only by the Magistrates or Sessions Judge as mentioned in the statute itself. But section 81 Cr. P.C does not confer any such power on the High, Court of the State, because, the High Court is a Court of record and as such the accused after arrest cannot be produced before the High Court as required by section 81 Cr. P.C Therefore, it is not clear what the Full Bench has tried to convey by the expression ‘the jurisdiction is limited to the extent of consideration of bail for the transitional period…..”
Interpreting the judgment in Sailesh Jaiswal, it was held:—
“Thus considering the position of law of different aspects of this particular point, we are not ready to accept the interpretation as advanced by the learned Advocate for the petitioner of the Full Bench decision in Jaiswal's case (supra). This decision never in clear terms lays down that the High Court can exercise the power and jurisdiction under section 438 Cr. P.C beyond the territorial jurisdiction of the State. In short, we hold that the petition for the anticipatory bail under section 438 Cr. P.C in connection with an offence of any outstation cannot be entertained by this High Court and as such the petition is not maintainable and accordingly disposed of.”
4. As indicated hereinbefore, the Division Bench disagreed with the said views in Sadhan Kolay (supra).
5. It is not and cannot be disputed that the decision of the Special Bench is binding on all other benches including this bench.
What is, therefore, required to be considered is as to whether the Hon'ble Judges in truth and substance differed in their views although apparently recorded their concurrence.
6. Having considered the rival submissions made at the Bar, and having perused the decision of the Special Bench in Sailesh Jaiswal, we are of the opinion that the Division Bench in Sadhan Chandra Kolay was not correct in its interpretation of the Special Bench judgment.
7. It is not a well settled principles of law that a judgment cannot be read as a statute. For the purpose of considering the ratio of the decision the entire decision has to be read and the same must be construed reasonably and fairly.
For the aforementioned purpose, even the observations made and/or findings recorded in other parts of the judgment must also be taken into consideration if any ambiguity appears therein.
8. A bare perusal of the said judgment however, leaves no manner of doubt that the majority judgment in Sailesh Jaiswal in no uncertain terms has laid down that a High Court cannot exercise its power under section 438 of the Code of Criminal Procedure for issuing direction that in the event of arrest the applicant shall be released on bail in terms of section 438 of the Code of Criminal Procedure meaning thereby upon considering the matter on merits as would appear from the following observation of Panigrahi, J.:—
“It seems abundantly manifest that on a larger principle of criminal administration of justice the Court having jurisdiction to enquire and try the offence should alone be competent to entertain such application. The jurisdiction for grant of bail or anticipatory bail is within the periphery of places of investigation unless a statute expressly provides otherwise. Therefore, it is axiomatic that the Court having territorial jurisdiction ordinarily should seize the jurisdiction to entertain the application for anticipatory bail.”
9. The learned Judge referred to various decisions delivered by different High Courts including this court but chose to accept the Full Bench decision of Patna High Court, in Syed Zafrul Hassan v. State, reported in AIR 1986 Pat 194 : 1986 PLJR 274. The Full Bench of Patna High Court in the aforesaid case considered various decisions rendered by different High Courts as also the decision of the Supreme Court of India in Samarias Trading Co. Pvt. Ltd. v. S. Samuel, reported in AIR 1985 SC 61 as also the provisions of Articles 214 and 225 of the Constitution of India read with the provision of section 3(25) of the General Clauses Act, and held:—
“in finally conclude on this aspect the answer to the question posed at the outset is rendered in the negative and it is held that section 438 of the Code does not permit the grant of anticipatory bail by any High Court or any Court of Session within the country where the accused may choose to apprehend arrest. Such a power vests only in the Court of Session or the High Court having jurisdiction over the locale or the commission of the offence of which the person is accused.”
10. In arriving at such a conclusion, the Full Bench considered the Division Bench judgment of this court in B.R Sinha v. The State, reported in 1982 Cr. L.J 61 and Dr. Dr. L.R Naidu v. State Of Karnataka, reported in 1984 Cr. L.J 757 and recorded. Their Lordships disapproval thereto.
11. Having arrived at a decision that the High Court or the Court of Sessions in such a situation cannot exercise its power under section 438 of the Code of Criminal Procedure on merit, the court considered as to whether keeping in view the provisions laid down in Chapter II of the Code of Criminal Procedure, such a power can be exercised for transitional period. Panigrahi, J. analysed the phraseology used in section 438 of the Code and held:—
“In case, either the High Court or the Court of Sessions on reference of material produced before it that there is likelihood of a person being arrested in a non-bailable offence, it could grant anticipatory bail directing such person to be released on execution of bond or by imposing any other condition which the arresting officer deemed fit, just and proper. After such person being released on anticipatory bail by the arresting officer, these accused person within reasonable time but in no case beyond 24 hours of arrest shall appear before the Court within the jurisdiction of which he ordinarily resides. Either the Magistrate, Chief Judicial Magistrate or the Court of Sessions upon consideration of the material placed by the arresting officer and on hearing the Public Prosecutor of the locality in which the offences alleged to have been committed shall pass an appropriate order regarding regular bail under section 81 of the Code of Criminal Procedure, the exercise of jurisdiction of anticipatory bail by any other Court namely the High Court or the Court of Sessions beyond the local limits of the jurisdiction is limited to the extent of consideration of a bail for the transitional period but it has no jurisdiction to transgress into the limits of the local jurisdiction of the Court within which offence is alleged to have been committed. With the above observation, the reference of the Division Bench has been answered.”
12. A conjoint reading of the said paragraph together with His Lordship's findings in other paragraphs, in our considered view, leaves no manner of doubt that His Lordship made the aforesaid observations keeping in view the fact that this Court or a Court of Sessions upon reference of the materials produced before it can grant anticipatory bail only for a transitional period by directing such person to be released on execution of bond or by imposing a condition which the arresting officer deems fit, just and proper. But once such a person is released by the arresting officer, the accused person must within a reasonable time but in no case beyond 24 hours of arrest shall appear before the court within the jurisdiction of which he ordinarily resides, whereupon the Magistrate, Chief Judicial Magistrate or the Court of Sessions, as the case may be, may pass an appropriate order of regular bail in terms of the second proviso appended to section 81 of the Code of Criminal Procedure.
13. As indicated hereinbefore, Gupta and Chowdhury, JJ. having agreed with the said view, the majority decision must be held to have arrived at the aforementioned finding. The majority decision was, thus, although binding upon the Division Bench in Kolay, the learned Judges choose to proceed further and sought to analyse the judgment of Mishra, C.J Such a course was not open to them. In Dukhi Shyam Benapani v. Parasmal Rampuria, reported in 1998 Cal. Cr. L.R 236, a Special Bench of this court held that a learned single Judge could not have taken a view contrary to that of the Division Bench. Mishra, C.J also however, in our considered opinion, did not come to a different conclusion as was sought to be stated by the Division Bench. In Sailesh Jaiswal (supra), Mishra, C.J stated:—
“Any order under section 438 of the Code by this Court, other than the limited jurisdiction for the transitional period, that is arrest and release on bail by the arresting authority or the Magistrate on whose orders the person arrested is required to be produced before the Judicial Magistrate having jurisdiction in the other State or Union Territory, shall be in excess of jurisdiction.”
(Emphasis supplied)
Having said so, the learned Judge proceeded to observe:—
“It is not just the threat of arrest or residence of the person sought to be arrested which is only to give jurisdiction for bail under section 438 of the Code. It is the information that he is sought to be arrested in connection with a non-bailable offence that the jurisdiction to grant anticipatory bail is exercised. Such positive information shall leave no room to think of any course other than the person apprehending arrest moving the High Court of the State or Union Territory within whose jurisdiction the police station, at which the case is registered, falls.”
14. The aforementioned findings read with the findings recorded in paragraph 29 of the judgment, thus, clearly demonstrate that Mishra, C.J, also had come to the conclusion that the power under section 438 of the Code of Criminal Procedure cannot be exercised by a court having no territorial jurisdiction other than the limited jurisdiction for the transitional period, that is, arrest and release on bail by the arresting authority or the Magistrate on whose order person arrested is required to be produced before the Judicial Magistrate having jurisdiction in the other State or Union Territory. Mishra, C.J was, therefore, of the opinion that anything done in excess thereof shall be without jurisdiction.
15. However, the Division Bench in Sadhan Chandra Kolay, (supra) without considering the matter in great details, sought to proceed on the basis that this Court has no jurisdiction in terms of section 81 of the Code of Criminal Procedure.
16. It is true that the High Court cannot exercise its jurisdiction under section 81 of the Code of Criminal Procedure, as the power to grant bail is confined to the authorities mentioned in the second proviso appended thereto, but as indicated hereinbefore, in view of Sailesh Jaiswal (supra) High Court can exercise a limited jurisdiction so that a person upon arrest may not be taken into custody by the arresting officer, but such arresting authority may be directed to release him on bail subject to the fulfilment of the terms and conditions as may be imposed together with terms and conditions whether by way of execution of bond or otherwise that he shall, within a reasonable time, and not beyond the period of 24 hours, appear before the courts as mentioned in the second proviso appended to section 81 of the Code of Criminal Procedure and obtain a regular bail from such authority on such terms and conditions as the court may deem fit and proper.
17. For the reasons aforementioned, we are of the opinion that in Sadhan Chandra Kolay the Division Bench misinterpreted the decision of the Special Bench of this Court in Sailesh Jaiswal (supra). The view taken by it, thus, being contrary to the Special Bench decision cannot be sustained and is accordingly overruled.
18. The reference to this Bench is answered accordingly. Let the matters be placed before the appropriate Bench for passing appropriate order in the light of the aforementioned decision.
M.H.S Ansari, J.:—I agree.
D.P Sengupta, J.:—I agree.
Division Bench decision in Sadhan Chandra Kolay, 1999 (1) CLJ 20 and Reference answered accordingly.
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