Palanikumar And Another v. State, Rep. By Its I...

Thereafter, the Madurai Bench of the Madras Bar Association and the Madurai Bench of the Madras High Court Advocates' Association, in short called as “MMBA” and “MBHAA” moved Review Petitions namely, M.P (MD) Nos. 1 and 2 of 2007 to review the order dated 25.04.2007 The very same Bench heard those Review Applications and by order dated 25.06.2007, disposed of the Review Petitions by recalling the earlier order dated 25.04.2007 and holding that the issue has got to be referred to a Larger Bench. Thus, the Division Bench, which heard the Review Petitions, directed the Registry to place the entire matter once again before the Hon'ble Chief Justice. On the note put up by the Registry after that, the Hon'ble Chief Justice, by administrative order dated 29.06.2007, directed the “lis” to be placed before the Full Bench and that is how the issue is before us.

2. Learned counsel normally practicing in the Madurai Bench of the Madras High Court, who were here practicing as lawyers previously before the creation of the Madurai Bench, appeared in this case, besides Mr. R. Shanmugasundaram, learned Senior Counsel and other learned counsels in support of the argument that in granting Anticipatory Bail, the Court should not limit its tenure. Since the issue referred to the Bench has a larger impact on the day-today dispensation of justice by the higher Courts namely, Court of Sessions and High Court in this State, we requested Mr. B. Sriramulu learned Senior Counsel to assist this Court as Amicus Curiae and he gladly accepting it, assisted us. Mr. Raja Elango learned State Public Prosecutor assisted by Mr. N.R Elango learned Additional Public Prosecutor for the State also participated in the proceedings. From their arguments, we could find that all of them are united without any difference of opinion - which is a rare happening in the legal profession, in their submission that Anticipatory Bail, if granted, should be granted for an unlimited period and it shall not be restricted to any particular tenure. All of them, to sustain that submission, heavily relied upon the judgment of the Constitution Bench of the Supreme Court reported in Gurubaksh Singh Sibbia v. State of Punjab, (1980) SCC (Crl.) 465. They also took us through five other judgments of the Supreme Court reported in namely, —

(a) Salauddin Abdulsamad Shaikh v. State Of Maharashtra., (1996) SCC (Crl.) 198;

(b) Sunita Devi v. State of Bihar & Another, (2005) SCC (Crl.) 435;

(c) Adri Dharan Das v. State of West Bengal, (2005) SCC (Crl.) 933;

(d) D.K Ganesh Babu v. P.T Manoharan & Others, 2007 (1) MWN (Cri) 170 (SC); and

(e) Sohan Lal Juneja & Others v. State of Punjab, 2007 (1) Crimes 20 (SC)

which were taken into account both by the learned Single Judge as well as by the Division Bench, to conclude that there is a conflict between the above referred to five judgments and the judgment of the Supreme Court in Gurubaksh Singh Sibbia's case. Learned counsels brought to our notice the judgment of a learned Single Judge of this Court in the case reported in Natturasu & three others v. State by S.I of Police, etc., 1998 (1) LW (Crl.) 103, wherein, according to them, the learned Judge had considered Salauddin's case and K.L Verma's v. State, (1998) (9) SCC 348: (1998) SCC (Crl.) 1031 and concluded that from those judgments it is not possible to conclude that Anticipatory Bail cannot be granted for the entire period. It is their argument that for concluding so the learned Judge in that case had relied upon Gurubaksh Singh Sibbia's case. It is also contended by the learned counsels appearing for the accused that Salauddin's case was decided by the Supreme Court in the context of the language of Section 438 of the Code of Criminal Procedure as applicable to the State of Maharashtra and therefore that judgment cannot be taken as laying down the “Law” on Section 438 of the Code of Criminal Procedure as it stood in the Statute book. It is then argued that the Amendment to Section 438 of the Code by the Amending Act of 2005 is yet to be notified in this State and therefore for considering the issue before this Court now, unamended Section 438 of the Code alone should be taken into account. If the unamended Section is taken into account, then, the Constitution Bench judgment of the Supreme Court in Gurubaksh Singh Sibbia's case alone would prevail over the latter judgments. Lengthy arguments have been advanced by the learned counsel on “Law of Precedents”.

3. In the light of the arguments advanced by the learned Senior Counsel, other learned counsels and the learned State Public Prosecutor, we went through the entire proceedings. We extract hereunder the question that was referred by the learned Single Judge, which was originally before the Division Bench and now before us:

“Whether the following recent five decisions of the Hon'ble Apex Court in (i) Salauddin Abdul Samad Shaikh v. State of Maharashtra, AIR 1996 SC 1042; (ii) Sunita Devi v. State of Bihar, (2005) (1) SCC 608; (iii) Adri Dharan Das v. State of West Bengal, 2005 (1) LW Crl. 243; (iv) Sohan Lal Juneja & Others v. State of Punjab, 2007 (1) Crimes 20 (SC); and (v) D.K Ganesh Babu v. P.T Manokaran & Others, 2007 (1) MWN (Cri) 170 (SC) are binding on the High Court or earlier decision at Paragraph No. 42 in Gurubaksh Singh Sibbia v. State of Punjab, (1980) SCC (Crl.) 465 is binding on the High Court relating to Anticipatory Bail under Section 438 of the Code of Criminal Procedure.”

4. The scope and ambit of Section 438 of the Code of Criminal Procedure came for an exhaustive scrutiny before a Constitution Bench of the Supreme Court. In the judgment reported in Gurubaksh Singh Sibbia's case referred to supra, the Constitution Bench had made an exhaustive study of Section 438 of the Code of Criminal Procedure. It may be noticed that Section 438 of the Code of Criminal Procedure is a new provision introduced for the first time by the 1974 Amendment. Anticipatory Bail sought for by a number of persons were rejected by Punjab and Haryana High Court. Therefore the aggrieved persons were before the Supreme Court. In rejecting the request for Anticipatory Bail, Punjab and Haryana High Court had given several reasons, namely, eight in number. As far as the present case before us is concerned, we are of the respectful opinion that it would be sufficient, if we look into the Law laid down by the Supreme Court on reason No. 2, which weighed with Punjab and Haryana High Court. We extract hereunder reason No. 2 which finds enumerated in paragraph 11 of the above referred to judgment:

“Neither Section 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.”

Addressing this point, the Supreme Court in para 23 of this judgment had said as hereunder:

“23. It remains only to consider the second proposition formulated by the High Court, which is the only one with which we are disposed to agree but we will say more about it a little later.”

The Honourable Judges constituting the corum of the Constitution Bench in elaborating their mind indicated in para 23, discussed that issue in paragraphs 40, 41 and 42. In paragraph 40 of the said judgment, the Supreme Court held that in exercising the power under Section 438 of the Code of Criminal Procedure, a “blanket order” such as “whenever arrested for whichever offence whatsoever” cannot be issued. On the issue before us, we find the answer in paragraph 42 of the said judgment. We extract hereunder the entire paragraph 42 of the said judgment:

“There was some discussion before us on certain minor modalities regarding the passing of bail orders under Section 438(1). Can an order of bail be passed under the Section without notice to the Public Prosecutor ? It can be. But notice should issue to the Public Prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The ad interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage. Should the operation of an order passed under Section 438(1) be limited in point of time ? Not necessarily. The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But his need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time.”

5. It is true in Salauddin's case, the Supreme Court (corum of Three Judges) was considering the validity of an ad interim Anticipatory Bail order granted by the Bombay High Court, which was to enure up to a particular date namely, 26.9.1995 and thereafter the petitioner, who was given the benefit of such order, was directed to move the regular Court for bail. In the context of the issue raised before the Supreme Court in that case, the Honourable Judges had laid down the Law as hereunder:

“2. Under Section 438 of the Code of Criminal Procedure when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, the High Court or the Court of Sessions may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and in passing that order, it may include such conditions having regard to the facts of the particular case, as it may deem appropriate. Anticipatory Bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular Court, which is to try the offender, is sought to be bypassed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular Court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting Anticipatory Bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such Anticipatory Bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting Anticipatory Bail should leave it 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 chargesheet his submitted.

3. It should be realised that an order of Anticipatory Bail could even be obtained in cases of a serious nature as for example murder and, therefore, it is essential that the duration of that order should be limited and ordinarily the Court granting Anticipatory Bail should not substitute itself for the original Court which is expected to deal with the offence. It is that Court which has then to consider whether, having regard to the material placed before it, the accused person is entitled to bail.”

In the above referred to extracted portions of the judgment in Salauddin's case, the Supreme Court had made it very clear that the order granting protection under Section 438 of the Code of Criminal Procedure shall be only for a limited period. It must be noticed that this case arose out of the State of Maharashtra. There is no dispute that the State of Maharashtra has substituted Section 438 of the Code of Criminal Procedure by an amendment. The language of the substituted Section is totally different from the language of Section 438, as it stood in the book, prior to Maharashtra Amendment. Therefore it has been repeatedly argued by the learned counsel on all sides that this judgment of the Supreme Court must be understood in the context of the amended Section 438 of the Code of Criminal Procedure (Maharashtra Amendment), which enables the Court only to grant an interim Anticipatory Bail. Therefore it is their submission that the judgment of the Supreme Court in Salauddin's case cannot be said to be running contra to the judgment of the Supreme Court in Gurubaksh Singh Sibbia's case. We are afraid, we cannot agree with this argument since though Salauddin's case arose from the order passed by the Bombay High Court, yet, a reading of paragraph 2 of the judgment as extracted above shows, the Honourable Judges of the Supreme Court were laying down the Law, having Section 438 of the Code of Criminal Procedure as it stood in the statute book, without reference to the Maharashtra Amendment. But one thing is certain and that is, the Constitution Bench Judgment in Gurubaksh Singh Sibbia's case was not brought to the notice of the Court dealing with Salauddin's case. Then comes the judgment of the Supreme Court in K.L Verma's case referred to supra. The Presiding Judge namely, the Chief Justice of India in Salauddin's case presided the Court in K.L Verma's case. K.L Verma's case arose out of the order passed by the Delhi High Court under Section 438 of the Code of Criminal Procedure. The Delhi High Court relied upon Salauddin's case. The Supreme Court did not find fault with the Delhi High Court and reiterated the decision that Anticipatory Bail order should be of a limited duration only. In other words, K.L Verma's case was decided following Salauddin's case. Once again we find that Gurubaksh Singh Sibbia's case was not brought to the notice of the Supreme Court, as otherwise, the Honourable Judges would have definitely referred to it in both the judgments.

6. Next in line is the judgment of the Supreme Court in Sunitha Devi's Case referred to earlier. This was by a different Bench of the Supreme Court, the coram of which consisted of two Honourable Judges. That was also a case dealing with an order passed under Section 438 of the Code of Criminal Procedure. In this context we want to note that in K.L Verma's case, the Supreme Court held that the order of Anticipatory Bail can be allowed to be in force for a specified period, even after the Court dealing with the application under Sections 437 and 439 of the Code of Criminal Procedure decides it, to enable the accused, if so advised, to move the higher Court. The above referred to last reservation given in K.L Verma's case was noted to be a grey area in Sunitha Devi's case. In dealing with Sunitha Devi's case, the Supreme Court upheld the argument that the protection, if any, can be given for a limited period in terms of Section 438 of the Code in order to enable the accused to apply for bail before the appropriate Court. The Supreme Court in that case held that the order to be passed under Section 438 of the Code of Criminal Procedure must be only for a limited period following Salauddin's case. Of course, later on, the Supreme Court in that case went on to discuss the grey area noted by them and came to a different conclusion namely, the protection order cannot be allowed to enure even after the appropriate Court decides the application filed under Section 437/439 of the Code of Criminal Procedure. It is true that the Supreme Court in Sunitha Devi's case has referred to Gurubaksh Singh Sibbia's case also. But the reference to Gurubaksh Singh Sibbia's case is in a very brief context namely, to highlight the distinction between an order under Sections 438 and 439 of the Code of Criminal Procedure. We find in the entirety of the judgment, only in paragraph 8, the Supreme Court had referred to Gurubaksh Singh Sibbia's case and from that reference we respectfully understood the context in which the said reference was made. We extract hereunder the sentences found in paragraph 8 where a reference is made to Gurubaksh Singh Sibbia's case:

“The distinction between an order in terms of Section 438 and that in terms of Section 439 is that the latter is passed after arrest whereas the former is passed in anticipation of arrest and become effective at the very moment of arrest (see: Gurubaksh Singh Sibbia v. State of Punjab).”

A careful reading of the judgment of the Supreme Court in Sunitha Devi's case undoubtedly shows that for holding that Anticipatory Bail order could be only for a limited period, Salauddin's case was relied upon. Salauddin's case was rendered by a Three Judges Bench coram and K.L Verma's case and Sunitha Devi's case were by a corum of two respected Judges. The next judgment of the Supreme Court is that of Adri Dharam Das's case referred to supra. That was also a case arising under Section 438 of the Code of Criminal Procedure. In this case also the Honourable Supreme Court of India reiterated the position that the protection in terms of Section 438 is for a limited duration only. For saying so, the Supreme Court once again relied upon Salauddin's case and the relevant paragaph in Salauddin's case is found extracted in paragraph 10 of that judgment. In paragraph 14 of the said judgment, the Honourable Judges had stated as hereunder:

“As observed in Salauddin case, the protection in terms of Section 438 is for a limited duration during which the regular Court has to be moved for bail.”

As noted by the referring Judge, in Adri Dharan Das case also, the Supreme Court has referred to Gurubaksh Singh Sibbia's case. That reference is found in paragraph 7 of that judgment. We extract hereunder the relevant portion in paragraph 7:

“The distinction between an ordinary order of bail and an order under Section 438 of the Code is that whereas the former is granted after arrest, and therefore means release from custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. (see: Gurubaksh Singh Sibbia v. State of Punjab)”

Therefore it is clear that the reference to Gurubaksh Singh Sibbia's case was only in the context of explaining the distinction between an ordinary order of bail and an order under Section 438 of the Code of Criminal Procedure. We very carefully went through the judgment of the Supreme Court in Sunitha Devi's case and Adri Dharan Das's case and with respect we state, the Honourable Judges' attention was not drawn to any other issue except to the limited extent of explaining the distinction between ordinary bail and Anticipatory Bail. In Salauddin's case and K.L Verma's case there is no reference to Gurubaksh Singh Sibbia's case. The next judgment of the Supreme Court which had been taken into account by the referring Judge is the one in D.K Ganesh Babu's case referred to supra. This is also by a Bench of Two Judges. An order passed by this Court (Madras High Court-Principal Bench) under Section 438 of the Code of Criminal Procedure granting Anticipatory Bail was in challenge. Gurubaksh Singh Sibbia's case is referred to in paragraph 6 only for the limited purpose for which it had been relied upon in Sunitha Devi's case and Adri Dharan Das's case and paragraph 9 contains the extract of the relevant portion in Salauddin's case. K.L Verma's case is also referred to and paragraph 10 contains the extract of the relevant portion from K.L Verma's case. Adri Dharan Das's case is referred to in paragraph 15 and holding that the judgment challenged in that Appeal was not in line with the judgment in Adri Dharan Das's case, the conditions imposed by the Madras High Court in granting Anticipatory Bail was modified. A reading of D.K Ganesh Babu's case also shows that the Supreme Court was having the same line of thinking on the duration of Anticipatory Bail order namely, that it should be limited. The Referring Judge had also taken into account Sohan Lal Juneja's case referred to supra. The principles laid down in Adri Dharan Das's case was reiterated therein.

7. From the above decisions it is clear that there are two views of the Honourable Supreme Court of India on one issue namely, one view holding that the normal rule should be not to limit the operation of the order in relation to a period of time, the exception being to limit for a short period, if there are reasons for doing so (see: Gurubaksh Singh Sibbia's case) and the other view is that Anticipatory Bail order should always be for a limited period (see: Salauddin's case, K.L Verma's case, Sunitha Devi's case, Adri Dharan Das's case and Sohan Lal Juneja's case). Therefore definitely there are two divergent views on the same issue. The reference made to us also shows that there are two divergent views between the judgments referred to above. Gurubaksh Singh Sibbia's case was rendered by a Constitution Bench (Five Judges); Salauddin's case was rendered by three Judges Bench while all the remaining judgments were by Two-Judge Bench. In the Law of Precedents the Supreme Court in the judgment reported in N. Meera Bai v. Government of Tamil Nadu, AIR 1989 SC 2027, held that:

“All subsequent decisions which are cited have to be read in the light of the Constitution Bench decision (AIR 1964 SC 334) since they are decisions by Benches comprised of lesser number of Judges. It is obvious that none of these subsequent decisions could have intended taking a view contrary to that of the Constitution Bench in Rameshwar Shaw's case.”

In Vijayalakshmi Cashew Company v. Dy. Commercial Tax Officer, (1996) (1) SCC 468, the Supreme Court held that:

“It is not possible to uphold the contention that perception of the Supreme Court, as will appear from the later judgments, has changed in this regard. A judgment of a Five-Judge Bench, which has not been doubted by any later judgment of the Supreme Court cannot be treated as overruled by implication.”

A learned Judge of this Court in Natturasu's case referred to supra after going through Salauddin's case and K.L Verma's case had held in paragraph 79 of that judgment as hereunder:

“The above two authorities do not lay down any rule that the Anticipatory Bail cannot be granted for the entire period, which would enure till the termination of trial. These cases would relate to the above observation, on consideration of the facts and circumstances of that case and desirably to pass such orders in suitable cases.”

A reading of the judgment in Salauddin's case and K.L Verma's case show that Gurubaksh Singh Sibbia's case was not brought to the notice of the Honourable Judges. Though the Judges, who have decided Sunitha Devi's case, Adri Dharan Das's case and D.K Ganesh Babu's case had referred to Gurubaksh Singh Sibbia's case, yet, their reference to that case, with respect we state, was only in a different context namely, to highlight the distinction between regular bail and Anticipatory Bail. It is clear to our mind that paragraph 42 in Gurubaksh Singh Sibbia's case was not brought to the notice of the Honourable Judges, who decided the last three above referred to cases.

8. Salauddin's case is the forerunner for all the subsequent cases to conclude that Anticipatory Bail order could be only for a limited period. We find with respect that the judgment in Salauddin's case is at varience with the judgment of the Constitution Bench in Gurubaksh Singh Sibbia's case. We are not for a moment stating that the latter Benches are without any power, if they entertain a doubt regarding the judgment rendered by a Larger Bench. The Constitution Bench of the Supreme Court in the judgment reported in Central Board of Dawoodi Bohra Community and Another v. State of Maharashtra & Another, (2005) SCC (Cri.) 546 had laid down the procedure to be followed in such cases. But in the last three cases namely, Sunitha Devi's case, Adri Dharan Das's case and D.K Ganesh Babu's case, we find that the Honourable Judges had not even doubted Gurubaksh Singh Sibbia's case. Therefore it is clear that the views of the Supreme Court on the scope and ambit of Section 438 of the Code of Criminal Procedure in Salauddin's case, K.L Verma's case, Sunitha Devi's case, Adri Dharan Das's case and D.K Ganesh Babu's case is at variance with the Constitution Bench Judgment of the Supreme Court in Gurubaksh Singh Sibbia's case. In such a situation, what is expected of a High Court is again the subject matter atleast two judgments of the Supreme Court and they are reported in Union of India v. K.S Subramanian, AIR 1976 SC 2433 and State of Uttar Pradesh v. Ram Chandra, AIR 1976 SC 2547. On the Law of Precedents, the Supreme Court in both the judgments was analysing the position of the High Court when it is faced with conflicting views of the Supreme Court and laid down the principles to be followed by the High Court in such circumstances:

AIR 1976 SC 2433:

“(A) Precedents - Duty of High Court to follow opinions expressed by larger Benches of Supreme Court.

The proper course for a High Court is to try to find out and follow the opinions expressed by Larger Benches of the Supreme Court in preference to those expressed by smaller Benches of the Court. That is the practice followed by the Supreme Court itself. The practice has now crystallized into a rule of law declared by the Supreme Court. If however, the High Court is of the opinion that the views expressed by Larger Benches of the Supreme Court are not applicable to the facts of the case it should say so giving reasons supporting its point of view.”

AIR 1976 SC 2547:

“(B) Constitution of India, Article 141 — Supreme Court decision — Binding nature on High Court — Conflicting views of Supreme Court — Principles to be followed by High Court. (Precedents — Judicial precedents).

Constitutional position as regards the powers of Court to go behind the orders of termination to find out motive of Government is clear. Even in cases where a High Court finds any conflict between the views expressed by larger and smaller Benches of this Court, it cannot disregard or skirt the views expressed by the Larger Benches. The proper course for a High Court in such a case is to try to find out and follow the opinion expressed by Larger Benches of the Supreme Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law, is followed by the Supreme Court itself.”

8-A. From a reading of the judgments of the Supreme Court last referred to above, it is clear that the High Court has to follow the procedure indicated therein. If that procedure is followed, then this Court has no doubt at all that it has to follow the Constitution Bench judgment of the Supreme Court reported in Shri Gurubaksh Singh Sibbia v. State of Punjab, (1980) SCC (Cri.) 465. The Supreme Court in Gurubaksh Singh Sibbia's case had emphasized that the normal rule should be not to limit the operation of the order in relation to a period of time. Paragraph Nos. 40, 41 and 42 in Gurubaksh Singh Sibbia's case, in our respectful opinion, should be understood in the context of reason No. 2 mentioned in that judgment, which weighed with the Punjab & Haryana High Court. The reason given therein is whether a blanket Anticipatory Bail order could be granted for offences not yet committed or with regard to the accusations not so far levelled. In Gurubaksh Singh Sibbia's case, the Supreme Court had also highlighted as to what is meant by blanket order. Under these circumstances we hold that the High Court and the Court of Sessions in this State should have the principles enumerated in Gurubaksh Singh Sibbia's case and in particular paragraph 42 of the judgment whenever an Application under Section 438 of the Code of Criminal Procedure comes up for consideration.

9. The Reference is therefore answered as hereunder:

“The High Court and the Court of Sessions in this State has to follow the Constitution Bench Judgment of the Supreme Court reported in Gurubaksh Singh Sibbia's case, (1980) SCC (Cri.) 465 in preference to the judgments of the Supreme Court reported in Salauddin's case, (1996) SCC (Cri.) 198; K.L Verma's case, (1998) SCC (Cri.) 1031; Sunitha Devi's case, (2005) SCC (Cri.) 435; Adri Dharan Das's case, (2005) SCC (Cri.) 933; and D.K Ganesh Babu's case, 2007 (1) MWN (Crl.) 170 (SC).”

10. We place on record our deep appreciation for the assistance rendered to us by Mr. B. Sriramulu, learned Senior Counsel as “amicus curiae” despite his busy schedule.