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Ashireddygari Narasimhareddy Another v. State Of A.P.
Factual and Procedural Background
The petitioners, charged under Sections 34 and 307 of the Indian Penal Code (IPC), filed an application under Sections 437 and 439 of the Criminal Procedure Code (Cr.P.C.) seeking bail in Criminal Case No. 95 of 1996 on the file of the Station House Officer, Hasthnura, Medak District. The case was registered on 23-10-1996. The petitioners had earlier filed an anticipatory bail application under Section 438, Cr.P.C., which was granted on 16-12-1996 with conditions including execution of bonds and sureties. After the charge-sheet was filed on 6-10-1997, the Magistrate directed the petitioners to approach the Sessions Court for regular bail. The petitioners applied for bail under Section 439 before the Additional Sessions Judge, Medak, which was dismissed on 9-4-1999 on the ground that the accused were not in custody. Aggrieved by this order, the petitioners filed the present application.
Legal Issues Presented
- Whether the Sessions Court was correct in dismissing the bail application on the ground that the accused were not in custody.
- Whether a Magistrate has the power to grant bail under Section 437, Cr.P.C. to an accused who is not in detention or custody.
- Whether the Magistrate can grant bail to an accused charged with an offence punishable under Section 307 IPC, which prescribes imprisonment for life.
- Whether the operation of anticipatory bail granted under Section 438, Cr.P.C. can be limited to a specific period and the accused directed to apply for regular bail thereafter.
Arguments of the Parties
Petitioners' Arguments
- The Sessions Court erred in dismissing the bail application on the ground that the accused were not in custody.
- The Magistrate has jurisdiction to grant regular bail under Section 437, Cr.P.C. even if the accused is not in detention, provided the accused appears before the Court.
- The prohibition on granting bail under Section 437(1) for offences punishable with death or imprisonment for life should be interpreted adjectively, allowing bail for offences punishable with imprisonment for life but not death.
- The anticipatory bail granted under Section 438, Cr.P.C. can be limited to a specific period, but the Court has discretion in this regard.
Court's Counsel's Assistance
- Senior Counsel Sri C. Padmanabha Reddy assisted the Court in analyzing the legal position regarding the limitation of anticipatory bail periods and relevant Supreme Court judgments.
- He contended that the Larger Bench judgment in Gurbaksh Singh v. State of Punjab holds that normally bail orders should not be time-limited, but subsequent Smaller Benches have taken a different view.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gurbaksh Singh v. State of Punjab, AIR 1980 SC 1632 | Normal rule that bail orders should not be limited to a specific period. | The Court noted this Larger Bench judgment but acknowledged that later Smaller Benches have taken differing views on time-limiting anticipatory bail orders. |
| Salauddin Abdulsamad Shaikh v. State of Maharashtra, 1996 SCC (Cri) 198 | Permissibility of limiting the duration of anticipatory bail orders. | Recognized as a later Smaller Bench decision that supports restricting bail orders to a specific period. |
| K. L. Varma v. State, (1996) 7 Scale (SP) 20 | Supports the view that anticipatory bail orders can be time-limited. | Considered by the Court as part of the evolving jurisprudence on anticipatory bail duration. |
| C. H. Siva Prasad v. State of A.P., (1998) 2 Andh LD (Cri) 498 : 1999 Cri LJ 1263 | Clarifies the discretion of Courts to limit or not limit anticipatory bail orders. | The Court adopted this reasoning, holding that it is within the Court's discretion whether to limit anticipatory bail orders. |
| Mohammad Iqbal v. K. Narasimha Rao | Interpretation of Section 437 regarding bail for offences punishable with imprisonment for life. | The Court relied on this judgment to hold that Magistrates can grant bail for offences punishable with imprisonment for life, as opposed to death sentence cases. |
Court's Reasoning and Analysis
The Court examined the provisions of Section 438, Cr.P.C. relating to anticipatory bail and noted that the Magistrate is required to issue a bailable warrant after the charge-sheet is filed and cognizance is taken, enabling the accused to apply for regular bail. In this case, the Magistrate did not issue such a warrant nor initiated proceedings under Section 437, Cr.P.C., despite the petitioners appearing regularly before the Court during committal proceedings.
The Court clarified that the Magistrate has the power to grant bail to an accused who is not in custody, provided the accused appears before the Court, except in cases punishable with death or imprisonment for life. However, relying on the precedent in Mohammad Iqbal v. K. Narasimha Rao, the Court distinguished that the prohibition applies only to offences punishable with death or alternatively imprisonment for life, and does not extend to offences punishable with imprisonment for life alone. Thus, the Magistrate is empowered to grant bail to the petitioners charged under Section 307 IPC.
The Court further analyzed the discretion of Courts in limiting the duration of anticipatory bail orders, referencing multiple Supreme Court judgments. It accepted the view that Courts may either limit or not limit the operation of such orders depending on the circumstances.
Consequently, the Court held that the Sessions Court erred in dismissing the bail application on the ground that the accused were not in custody and directed the petitioners to file a formal bail application before the Magistrate, who is empowered to grant bail pending trial.
Holding and Implications
Petition allowed.
Holding: The order of the Additional Sessions Judge, Medak dismissing the bail application on the ground that the accused were not in custody is held to be illegal. The Magistrate is empowered to grant bail under Section 437, Cr.P.C. to the petitioners even though they are not in detention, as they appeared before the Court and were charged with an offence punishable with imprisonment for life under Section 307 IPC.
Implications: The petitioners are directed to file a formal application for bail before the Magistrate, who shall pass appropriate orders releasing them on bail pending trial. This decision clarifies the Magistrate's jurisdiction to grant bail to accused persons not in custody and affirms the discretionary power of Courts in limiting anticipatory bail orders. No new precedent beyond the application of existing case law was established.
The petitioners two in number who are charged for offences punishable under Sections 34, and 307, IPC filed this application under Sections 437 and 439, Cr.P.C. to enlarge them on bail in Cr. No. 95 of 1996 (P.R.C. No. 37/1997) on the file of Station House Officer, Hasthnura, Medak District and to pass such order or orders as the Hon'ble Court may deem it proper.
2. The facts leading to the filing of this Case are that the Station House Officer, Hasthnura registered Cr. No. 95 of 1996 against the petitioners under sections 34 and 307 of ipc on 23-10-1996. Thereafter, the petitioners filed Crl.P. No. 5288 of 1996 on the file of this Court under Section 438, Cr.P.C. seeking anticipatory bail in the event of their arrest in the said crime. This Court by order dated 16-12-1996 directed that the petitioners be released on bail in the event of their arrest of each of them executing a bond of Rs. 10,000/- with one surety of like amount for a period of one month from the date of their arrest to the satisfaction of the aforesaid order. Pursuant to the said orders, the petitioners appeared along with sureties before the police and executed the sureties. Thereafter, on 6-10-1997 the SHO filed charge-sheet and the same was numbered as PRC 37/97. On the date of filing of the charge-sheet both the accused were present. The docket order of the Magistrate dated 6-10-1997 is as follows A-1 and A-2 present. Copies of documents furnished for committal call on 3-11-1997." Thereafter, the case underwent some adjournments and at the stage of committal of the case to the Session the Magistrate having found that the petitioner did not obtain regular bail after the charge-sheet was filed, directed them to approach the Sessions Court and obtain regular bail. On that the petitioners filed Crl.M.P. No. 490 of 1999 before the Additional Sessions Judge, Medak and the same was dismissed by the Additional Sessions Court on 9-4-1999 by holding that application for bail under Section 439, Cr.P.C. cannot be entertained as the accused are not in detention or in custody of any of the authority. Aggrieved by the said order, the present application is filed.
3. On 4-5-1999 I directed the continuance of the petitioner on anticipatory bail on the same terms and conditions on which anticipatory bail was granted by this Court on 16-12-1996 until further orders and directed the counsel for the petitioner as well as the Public Prosecutor to examine the legal position and assist the Court to arrive at a proper conclusion. In this petition the correctness of the order passed by the Sessions Court is canvassed and as there is no decided case on this aspect this Court requested Sri C. Padmanabha Reddy, Senior, Counsel to assist the Court for arriving at a just conclusion. Section 438, Cr.P.C. deals with the grant of anticipatory bail. In the first instance Sri Padmanabha Reddy contended that the Court is not justified in granting bail for a limited period by relying on a Larger Bench Judgment of the Hon'ble Supreme Court in Gurbaksh Singh v. State of Punjab, 1980 Cri LJ 1125 : (AIR 1980 SC 1632). It is true that their Lordships of the Supreme Court in this case held that "Normal rule should be not to limit the operation of the order in relation to a period of time". But, two Smaller Benches of the Supreme Court at a latter point of time i.e. one in Salauddin Abdulsamad Shaikh v. State Of Maharashtra., 1996 SCC (Cri) 198 : (1996 Cri LJ 1368) and K. L. Varma v. State, (1996) 7 Scale (SP) 20 without reference to the earlier judgment of the Larger Bench has taken a different view. Left to myself, I would have followed the Judgment of the Larger Bench of the Supreme Court in Gurbaksh Singh's case supra. But my learned Brother Justice Sudershan Reddy in C. H. Siva Prasad v. State of A.P., (1998) 2 Andh LD (Cri) 498 : (1999 Cri LJ 1263) having considered the effect of these three judgments as well as some other judgments of the other High Courts recorded a finding that it is for the Court granting anticipatory bail whether to limit the operation of the anticipatory bail to a particular period or without specifying any period. The conclusion arrived at by my brother are as hereunder :
22. On an analysis and a close reading of the decisions referred to above, the following propositions would emerge :
(1) This Court or Court of Sessions in exercise of its power and jurisdiction under Section 438, Cr.P.C. may direct the release of the accused person in a given case only for a specific period and direct the accused person to apply for and obtain regular bail. This would necessarily mean that the operation of the order would come to an end immediately after the specified time and the accused person has to necessarily surrender or get arrested so as to enable the accused person to file an application under Section 437 or 439, Cr.P.C. as the case may be.
(2) This Court or Court of Sessions in exercise of its power and discretion under Section 438 of the Code can restrict the operation of directions issued under the said provision at the initial stage and extend the same until further orders :
(3) The Court exercising the power and jurisdiction under Section 438 of the Code is entitled to issue necessary directions directing release of the accused person in the event of his or her arrest without specifying any period, and
(4) The power and jurisdiction of this Court or Court of Sessions under Section 438 of the Code is not limited or circumscribed in any manner whatsoever requiring to limit the operation of the directions to release the accused person in the event of his or her arrest.
4. In the light of the view taken by my Brother, without going into that aspect I will proceed to examine the correctness of the order passed by the Sessions Court. At this stage it is useful to extract Section 438, Cr.P.C., which is as hereunder :
438. Direction for grant of bail to person apprehending arrest. -
(1) When any person has reason 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 the Court of Session for a direction under this Section, and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session make a direction under sub-section (1) it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including -
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required :
(ii) a condition that the person shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) Such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that Section.
(3) If such person is thereafter arrested without warrant by an officer in-charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decided that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in confirmity with the direction of the Court under sub-section (1).
Corresponding old law. -
This Section is a new provision.
5. From this it is seen that as and when the police tries to arrest a person, who is on anticipatory bail shall release him on bail, if he is, prepared to give bail and after the charge sheet is filed, if the Magistrate having gone through the charge sheet decided to take cognizance of the offence alleged against the said person, he shall issue a bailable warrant in the first instance against that person in confirmity with the direction of the Court under sub-section (1) of Section 438. In other words, after the charge-sheet is filed and if the Magistrate decides to proceed against the accused person he has to issue a bailable warrant though the offence lodged against the accused person are cognizable in nature as he was already on anticipatory bail so that the formality of granting regular bail under Section 437 is completed. But, in this case though the petitioners were regularly appearing before the Magistrate, he neither issued any bailable warrant as contemplated under Section 438(3), Cr.P.C. nor set in motion the legal provisions as contained in Section 437, Cr.P.C. As per the provisions of Section 437, Cr.P.C. as and when a person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail except in the cases where there are reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life. From the above it is seen that the Magistrate is empowered to grant bail to an accused person who is not charged with an offence punishable with death or imprisonment for life when the accused was brought before the Court either by the police or the accused appears on his own before the Court.
6. Hence the Magistrate is empowered to grant bail to an accused person even if he is not in detention. To put it emphatically, on his appearance in the Court except in cases punishable for death or imprisonment for life the Magistrate is empowered to grant bail u/S. 437, Cr.P.C. Viewed from that angle, it is seen that the petitioners were regularly attending the Court during the committal proceedings before the Magistrate all through and as they are very much before him, the magistrate would have entertained an application for grant of bail and would have released them on bail before committing the case to the Sessions. The magistrate is even empowered to release the accused till the trial is completed without directing the accused to obtain bail in the sessions Court after committal. This is evident from Section 441(3), Cr.P.C. Without doing so, he directed the accused to obtain the bail orders from the Sessions Court perhaps under an impression that the petitioners were charged with an offence punishable under Section 307, IPC for which the punishment prescribed is imprisonment for life.
7. Now other issue that falls for consideration is whether the Magistrate can grant bail to a person accused of an offence punishable under Section 307, IPC with imprisonment of life as Section 437(1) says that no person accused of an offence punishable with death or imprisonment cannot be released on bail by the Magistrate. This issue is no more res integra in the light of the Judgment of this Court in Mohammad Iqbal v. K. Narasimha Rao. Justice Bhaskar Rao as he then was having considered a Judgment of a Kerala High Court ruled that the Magistrate has no power to release an accused on bail where he was charged with an offence punishable with death or imprisonment for life, but not in cases where punishment is prescribed as imprisonment for life. In other words, his Lordship ruled that the words "offence punishable with death or imprisonment for life" should not be read objectively, but adjectively. His Lordship held that the Magistrate has power to grant bail to the accused before him, who was involved in an offence 'punishable with imprisonment for life' even if the offence is exclusively triable by a Court of Session. The prohibition against grant of bail is confined to cases where the sentence prescribed is "either death or alternatively, imprisonment for life, and the expression occurring in Section 437, Cr.P.C. viz., offence punishable with death or imprisonment for life does not extend to an offence punishable with imprisonment for life. Following the above judgment, I hold that the Magistrate is empowered to grant bail to the petitioners in this case as they were charged with an offence under Section 307 punishable with imprisonment for life.
8. For the foregoing reasons, I hold that for grant of bail under Section 437, Cr.P.C. by the Magistrate the accused person need not be under detention or custody of any authority and it is suffice that he appears before the Court. Accordingly, the order of the Additional Sessions Judge, Medak is held to be illegal and the petitioners are directed to file an formal application seeking grant of bail before the Magistrate, who in turn shall pass the orders releasing the petitioners on bail pending completion of the trial before the Sessions Court.
Petition allowed.
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