1. The Court: This is an application under s. 438 of the Code of Criminal Procedure filed in the names of the applicants, but affirmed by a tadbirkar. It is stated in the petition that he is only conversant with the facts and circumstances of the case.
2. On the question of maintainability of the application under s. 438 of the Code of Criminal Procedure affirmed by a tadbirkar, we heard the matter and we requested Mr. Balai Chandra Roy, a Senior Advocate of this Court to assist the Court as an Amicus Curie. The learned Advocate Mr. Milan Kumar Mukherjee also intervened and made his submission and ultimately Mr. Roy argued the matter with various case laws. Mr. Kazi Safiullah, learned Public Prosecutor also made his submission on this connection.
3. Section 438(1) of the Code of Criminal Procedure provides as hereunder:
“…………When any person has reasons to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or Court of Sessions for a direction under this section that in the event of such arrest, he shall be released on bail, and that court may, after taking into consideration pass necessary order as provided in said section………”
Incidentally, the question of making an application in respect of a case where the accused person is arrested or detained as provided under s. 437 of the Code of Criminal Procedure, there is no expressed provision for making any formal application for bail and it is well-settled that in such a case when a person is in custody, such a prayer for bail can be made by a lawyer or the accused person orally or otherwise and that under s. 437 of the Code the Court is conferred with power to release the accused on bail with certain conditions and restrictions.
4. Similarly, under s. 439(1) of the Code special power has been conferred upon the High Court to grant bail after imposing the conditions and restrictions for such bail and there is not express condition for applying for a bail.
5. In this connection, it appears it is a long standing practice in this Court for getting an application under s. 438 of the Code which is popularly known as ‘Anticipatory Bail’ affirmed by a tadbirkar who might or might not have any connection with the case, but it appears that he plays a very important role, in the matter of filing such application for anticipatory bail through the Lawyer.
6. The question which calls for consideration by us as to whether the expression ‘he may apply to the High Court or the Court of Sessions' includes a stranger or tadbirkar or a middle-man and/or a tout.
7. On behalf of the applicants a stand was sought to be taken that if the applicant for Anticipatory Bail is insisted upon filing an affidavit, in that event that would amount to violation of the provisions of s. 4(2) of the Oaths Act, 1969 which provides as hereunder:
“……Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties”.
The question is also whether affirming an affidavit for filing an application under s. 438 of the Code amounts to testimonial compulsion which is provided in Art. 20(3) of the Constitution of India.
8. In the case of M.P Sharma v. Satish Chandra, reported in AIR 1954 SC 300 the Supreme Court inter alia held as hereunder:
“……Indeed every positive volitional act which evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so produced is confined to what transpires at the trial in the Court room.
The phrase used in Art. 20(3) is ‘to be a witness’ and to ‘appear as a witness’. It follows that the protection afforded to an accused in so far as it is related to the phrase ‘to be a witness’ is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision this case.
The guarantee under Art. 20(3) would be available in the present cases to these petitioners against whom a First Information Report has been recorded as accused therein. It would extend to my compulsory process for ‘production’ of evidentiary documents which are reasonably likely to support a prosecution against them.”
9. A reference was also made to the decision of the Supreme Court in the case of Directorate of Enforcement v. Dipak Mahajan, reported in AIR 1994 SC 1795 wherein the Supreme Court had occasion to consider in details and held inter alia as follows:
“……..A thorough and careful study of all the provisions of the Code manifestly discloses that the word ‘accused’ in the Code denotes different meanings according to the context in which it is deployed in that sometimes. The said word is employed to denote a person arrested, sometimes a person against whom there is an accusation, but who is yet not put on trial and sometimes to denote a person on trial and so on”.
In other words, the Supreme Court in that case had indicated that the word ‘accused’ cannot have any definite connotation and cannot be defined in a straight jacket formula and this expression has a wider meaning.
10. So far as the case before us is concerned, the question is whether the applicant who intends to apply an anticipatory bail under s. 438 of the Code affirms an affidavit, amounts to testimonial compulsion under Art. 20(3) of the Constitution of India or it offends s. 4(2) of the Oaths Act.
11. In the case of Laxmipat Choraria v. State of Maharashtra, reported in AIR 1968 SC 938 the Supreme Court considered the expression ‘accused’ used in the Oaths Act and held as hereunder:
“…..Expression ‘criminal proceeding’ in the exclusionary clause of s. 5 of the Indian Oaths Act cannot be used to widen the meaning of the word ‘accused’. The same expression is used in the proviso to s. 132 of the Indian Evidence Act and there it means a criminal trial and not investigation”.
12. The most important question that we have to bear in mind that persons applying for an Anticipatory Bail must have a reason to believe that he may be arrested on accusation of having committed a non-bailable offence. The expression ‘reason to believe’ also occurs in s. 34 of the old Income Tax Act of 1922 and now in s. 147 of the Income Tax Act of 1961 “wherein the Income Tax Officer is conferred jurisdiction under s. 34 of the old Income Tax Act to issue notice in respect of re-assessments beyond the period of four years, but within a period of eight years, from the end of the relevant year the Income Tax Officer must have reasons to believe that income, profits or gains chargeable to income tax have been under-assessed and he must have also reason to believe that such ‘under assessment’ has occurred by reason of either (i) omission or failure on the part of the assessee to make a return of his income under s. 22 or (ii) omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment for that year. Both these conditions are precedent’”. This question was considered by the Supreme Court in the case of Calcutta Discount Company Ltd. v. Income Tax Officer, Companies reported in AIR 1961 SC 372.
In that case the Supreme Court further held inter alia as hereunder:
“……Under s. 34 both the conditions (i) Income Tax Officer having reason to believe that there has been under-assessment; and (ii) his having reasons to believe that such under-assessment has resulted from non-disclosure of material facts, must co-exist before the Income Tax Officer has jurisdiction to start proceedings after expiry of four years. In the proceedings under Art. 226 of the Constitution the High Court can investigate the existence of one of these conditions, viz, that the Income Tax Officer has reasons to believe that under-assessment has resulted from non-disclosure of material facts.”
13. In the case of Rohtas Industries Ltd. v. S.D Agarwal, reported in AIR 1969 SC 707 the Supreme Court considered this expression and held that ‘if it is established that there was no material upon which the authorities could form required opinion, the Court may infer that the authority did not apply its mind to the relevant facts. Similar view was taken by the Supreme Court in the case of Barrium Chemicals v. Company Law Board, reported in AIR 1967 SC 295 where the meaning of the expression ‘reason to believe’ was considered.
14. Of course, while considering the application for anticipatory bail, the court does not sit in appeal over the materials on the basis of which the applicant had a bona fide reasons to believe but the existence of the reasons of belief is a matter which is a condition precedent for exercising jurisdiction under s. 438 of the Code and that the applicant who must have reason to believe, he may be arrested on an accusation of having committed a non-bailable offence and there cannot exists any expression of reason to believe unless there are some materials in the possession of the applicant to show or suggest that he has a bona fide reason to take such view and that judging from this angle it is the applicant who has reasons to believe may come to the court as provided in s. 438 of the Code and file an application. In such circumstances it appears to us that whether he has reason to believe or not is a matter for him to allege and power could not be delegated to a tadbirkar and who cannot file an application affirming an affidavit similarly by saying that he is conversant to the facts of the case.
15. In considering the provisions of s. 438 of the Code of Criminal Procedure, the court cannot ignore the expression ‘he may apply to the Court’. In construing the statute, the court is bound to give effect to each and every words used in the statute. The expression ‘he may apply’ could not be construed as ‘may on application by or on behalf of person’ or the expression ‘he’ cannot mean that ‘he’ includes a stranger or a tadbirkar or a tout or a middleman. Every word of the statute must be given its normal and literal meaning. The expression, in our view, ‘he’ by any stretch of imagination cannot be allowed to include any other person excepting as provided under the Civil Procedure Code wherein the applicant includes applicant's holder of power of attorney or when he appoints an agent as provided under the law when he is unable to come to the court. If we have to hold that expression ‘He’ includes tadbirkar and others, in that event we have to construe the words that he may affirm an affidavit and file an application for anticipatory bail on behalf of the person to whom he has reasons to believe that he may be arrested on accusation of non-bailable offence. In our view, the expression ‘he’ could not include and mean a stranger or tadbirkar or middleman. There may be cases where person may be old and disabled and cannot undertake a long journey to affirm an affidavit. In such cases, he may authorise one of his relation or friend and who may be briefed by him, but in each and every cases the said principle cannot apply and the applicant has to file the application for anticipatory bail by swearing an affidavit himself. Section 437 of the Code of Criminal Procedure does not contemplate any written application and it may be made by an oral application. This view was taken by the Supreme Court in the case of R.K Nabachandra Singh v. Manipur Admn. reported in AIR 1964 Mani 39 and the position has been correctly high-lighted. Section 19(xvii) of the Court Fees Act, 1870 provides that an application for bail has to be signed by an Advocate or by the prisoner in custody or other person in duress or under restraint of any court or officer. So the Legislature has taken care of such a situation when a person is in custody.
16. Provisions of Oaths Act do not and cannot apply in case of filing an application under s. 438 of the Code. The Oaths Act applies for giving evidence before any court including a criminal court which has been explained by the Supreme Court in Laxmipat Choraria's case (supra). Section 4(2) of the Oaths Act, 1969 provides that ‘nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties.
17. In Black's Law Dictionary ‘Lawful’ means legal, warranted or authorised by the law; having the qualifications prescribed by law; not contrary to nor forbidden by the law. The Oaths Act is not applicable in case of filing an affidavit in support of an application for Anticipatory Bail. Secondly, the question of testimonial compulsion under Art. 20(3) of the Constitution does not and cannot arise at all as it is well settled by a decision of the Supreme Court in the case of Chhotan Prasad v. Hari Prasad, reported in AIR 1977 SC 407 and in Sudha Devi v. Narayan, AIR 1988 SC 1381 that an affidavit is not an evidence and accordingly it cannot be used as an evidence in the proceeding. Further when the Parliament in its wisdom has provided that in order to file an application under s. 438 of the Code the applicant has to apply himself and the court cannot ignore such expression as the Parliament intended that such an application has to be filed by the applicant in order to avail of his remedy as he is the person who can only say before the court that he has reasons to believe that he may be arrested. If a contrary view is taken and if it is held that a middleman or a tadbirkar can affirm an affidavit to an application for Anticipatory Bail, in that event it would result in a counter-mischief which would be contrary to the spirit and object of the Act. Belief must be of the applicant seeking for an anticipatory hail. It is well settled principle that when a counter-mischief would arise if remedy provided by the Act where construed widely, the court may avoid or at least reduce it by limiting remedy.
18. Paragraph 138 of Francis Bennion on Statutory Interpretation provides that ‘Parliament intends that the enactment shall remedy a particular mischief. It is presumed therefore that Parliament intends the Court, in construing the enactment, to endeavour to apply the remedy provided by it in such a way as to suppress that mischief’.
19. Paragraph 141 of that Book provides that ‘the court seeks to avoid a construction that produces an absurd inappropriate, unfitting or unreasonable result’.
20. Paragraph 154 of that Book provides that ‘where the application of an enactment yields an adverse result (that is one detrimental to the subject of the state), the interpretative factors may on balance indicate that the court should curtail its application. This is known as strict construction.
21. There could not be any restriction on any person's right to move the court as right to judicial review is one of the basic structure of the Constitution and even if a man is accused of an offence excepting that he may be arrested and may be punished that does not show that all of his fights are suspended. On the contrary all of his rights remain intact and as it is.
22. In our view, if the system of tadbirkar filing application under s. 488 of the Code of Criminal Procedure is allowed to continue, that would be encouraging a system contrary to law and that would encourage Toutism and Middlemanship in the legal system and this system is bound to cause destruction to the present judicial system. If middlemen have no stake excepting that they are doing this for wrongful gain and the possibility of such making wrongful gain is there and this is also admitted by the members of the Bar before this Court that the lawyers when moving an anticipatory bail could not get any instruction for the applicant nor could they see the face of the applicant. There may be cases where the applicant may stay in a foreign country or in remote places of the country hiding himself and mere sending a Vokalatnama and merely on the basis of Vokalatnama sent by some means, the middlemen and/or tadbirkars, who are nothing but touts, could not be allowed to function and it does not require the exercise of any skill and/or research that these persons are polluting the system.
23. After bearing Mr. Balai Chandra Roy, Mr. Milan Kumar Mukherjee and Mr. Kazi Safiullah learned Public Prosecutor and other learned Advocates and after considering the various case laws and the provisions of Art. 20(3) of the Constitution of India and the provisions of the Oaths Act and the Criminal Procedure Code we are clearly of the view that there is no bar for the applicants to affirm an affidavit for filing an application under s. 438 of the Code of Criminal Procedure and that mere affirmation of an affidavit in support of the application does not amount to any testimonial compulsion and that the same also does not come within the purview of the provisions of 4(2) of the Oaths Act which is only confined to criminal proceedings; or in other words in course of trial and not in course of the investigation. In that view of the matter the tadbirkar or an agent cannot affirm an affidavit in an application for Anticipatory Bail and in each and every case the applicant has to affirm it either before the Oath Commissioner of this Court or before any Magistrate who is competent to administer an oath and in case of genuine difficulty the same could be affirmed by an agent duly authorised by the applicant in accordance with law as provided in the Civil Procedure Code. We also hold that this Court and no other Court in this State can entertain an application for Anticipatory Bail if it is affirmed by a mere tadbirkar and no such application can be entertained unless it is supported by an affidavit by the applicant or by his duly authorised agent in accordance with law and not by the tadbirkar or a middleman. Since this practice, which in our view, is contrary to law is continuing for a long time, we do not propose to reject such applications which are in the list and pending before this Court and that those cases can be taken up only after a supporting affidavit is affirmed by the applicant or by the persons who are duly authorised by the applicant in accordance with law with in two weeks from today.
24. Let xerox-copies of this order, counter-signed by the Assistant Registrar (Court) be given to the learned Advocates appearing in this case on the usual undertaking.
Disposed of with directions.
J.N.H
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