Ashok Bhushan, J.— Leave granted. This appeal has been filed against the judgment and order of the Allahabad High Court dated 21-12-2017 2017 SCC OnLine All 2635 dismissing Writ Petition No. 62167 of 2017 filed by the appellant. The principal issue, which has arisen for interpretation of this Court, is the content and meaning of Section 88 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”). Before we come to the impugned judgment of the High Court, it is necessary to note a series of litigations initiated at the instance of the appellant in different courts, arising out of criminal proceeding lodged against him.
2. A first information report under Sections 120-B, 409, 420, 466, 467, 469 and 471 of the Penal Code and under Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 was lodged against one Yadav Singh, the then Chief Engineer of Noida, Greater Noida and the Yamuna Expressway Authorities and a charge-sheet dated 15-3-2016 being Charge-Sheet No. 02/2016 was submitted in the Court of Special Judge, CBI against several accused including Yadav Singh and the appellant Pankaj Jain. The trial court took cognizance by order dated 29-3-2016 summoning accused for 29-4-2016 for appearance. The appellant filed an application under Section 482 CrPC in the Allahabad High Court being Application No. 31090 of 2016, praying for quashing the entire criminal proceeding of Special Case No. 10 of 2016 as well as summoning order dated 29-3-2016. The application was finally disposed of by the High Court vide order dated 17-10-2016 2016 SCC OnLine All 2562 with a direction that if the applicant appears and surrenders before the court below within two weeks and applies for bail, then his bail application shall be considered and decided. The appellant filed Special Leave Petition (Crl.) No. 10191 of 2016 against the judgment of the High Court dated 17-10-2016 2016 SCC OnLine All 2562, which was dismissed 2017 SCC OnLine SC 1592 by this Court as withdrawn on 16-1-2017 with liberty to apply for regular bail.
3. A supplementary charge-sheet was filed on 31-5-2017, on the basis of which a cognizance order dated 7-6-2017 was passed by the Special Judge, CBI taking cognizance against the appellant and other accused under Sections 120-B, 420, 468, 471 IPC and Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988. Again an application under Section 482 CrPC being Application No. 18849 of 2017 was filed by the appellant in the High Court praying for quashing the criminal proceeding in pursuance of supplementary charge-sheet dated 31-5-2017. The High Court vide its order dated 6-7-2017 2017 SCC OnLine All 2634 disposed of the application under Section 482 CrPC directing that if the applicant appears and surrenders before the Special Judge, CBI within two weeks and applies for bail, it is expected that the same will be disposed of expeditiously in accordance with law. It was further directed in the meantime for a period of two weeks, effect of non-bailable warrant shall be kept in abeyance. The appellant aggrieved by the order of the High Court dated 6-7-2017 2017 SCC OnLine All 2634 again filed Special Leave Petition (Criminal) No. 7749 of 2017, which was disposed of by this Court on 24-11-2017 2017 SCC OnLine SC 1606 granting further two weeks' time to the appellant-petitioner to apply for regular bail before the Special Judge, CBI with a direction to the trial court to consider the said application for bail forthwith.
4. On 27-11-2017, the case was taken up by the Special Judge, CBI. The Court noticed that the appellant and one other accused was not present. The Court ordered for issuing non-bailable warrants and process of Sections 82 and 83 CrPC against the appellant. On the same day, noticing the order passed by this Court on 24-11-2017 2017 SCC OnLine SC 1606 in SLP (Criminal) No. 7749 of 2017, the learned Special Judge stayed the orders against the appellant for a period of two weeks' as per order of this Court. The appellant further filed Writ Petition (Criminal) No. 199 of 2017 in this Court under Article 32 of the Constitution of India contending that the appellant-petitioner, who was not arrested during investigation by CBI, has to simply surrender and give a bond under Section 88 of the Code of Criminal Procedure. A direction to that effect was sought for by this Court. This Court disposed of the writ petition vide its order dated 6-12-2017 2017 SCC OnLine SC 1607 noticing the earlier order of this Court dated 24-11-2017 2017 SCC OnLine SC 1606 with the following order:
“3. In view of our aforesaid orders dated 24-11-2017 2017 SCC OnLine SC 1606, we are of the opinion that the petitioner should, in the first instance, appear before the trial court, which is the course of action already charted out. It would be open to the petitioner to move an application under Section 88 CrPC or a bail application, as may be advised. It will also be open to the petitioner to rely upon the judgments in support of his contention as noted above. It is for the trial court to go through the matter and take a view thereupon. Insofar as this Court is concerned, no opinion on merits is expressed.
4. Mr Mukul Rohatgi, learned Senior Counsel, submits that the petitioner, who is present in the Court today, shall surrender and appear before the trial court tomorrow, 7-12-2017. This statement of the learned Senior Counsel is noted.
5. The writ petition stands disposed of in the aforesaid terms.”
5. After order of this Court dated 6-12-2017 2017 SCC OnLine SC 1607, the appellant appeared before the Court of Special Judge, CBI and submitted an application dated 7-12-2017. In the application, following prayer has been made:
“(a) That this Hon'ble Court may be pleased to forthwith take up and dispose this application made by the applicant Pankaj Jain, who is voluntarily present before this Hon'ble Court, pursuant to the liberty granted by the Hon'ble Supreme Court vide order dated 6-12-2017 2017 SCC OnLine SC 1607 passed in Writ Petition (Crl.) No. 199 of 2017 read with order dated 24-11-2017 2017 SCC OnLine SC 1606 passed in SLP (Crl.) No. 7749 of 2017, and to permit him to furnish such bond, as may be deemed fit, as per Section 88 CrPC in RC No. RC/DST/2015/A/0004/CBI/STF/DLI dated 30-7-2015/Case No. 10-A/2016 and 3/2017 without sending him to any prison;
(b) Any such other or further order as this Hon'ble Court may deem fit to grant in the facts and circumstances of the case and in the interest of justice.”
6. The above application dated 7-12-2017 was rejected by the Special Judge, CBI. The Special Judge, CBI observed that the word “may” used in Section 88 signifies that Section 88 is not mandatory and it is a matter of judicial discretion. The Special Judge after noticing the allegations of the appellant rejected Application No. 14-B of 2017. Aggrieved against the judgment dated 7-12-2017, another Application No. 101-B of 2017 was filed by the appellant, which was also rejected. The applicant filed SLP (Crl.) No. 9764 of 2017, which was disposed of vide its order dated 15-12-2017 SLP (Cri) No. 9764 of 2017 observing that since the impugned order is passed by the Special Judge, CBI, it would be appropriate for the petitioner to challenge that order by approaching the High Court. Subsequent to the order dated 15-12-2017 SLP (Cri) No. 9764 of 2017, the appellant-petitioner filed Writ Petition No. 62167 of 2017, where the appellant-petitioner also sought to challenge the vires of Section 88 as well as writ for certiorari quashing the order dated 7-12-2017 of the trial court. In the writ petition, following prayers have been made:
“(a) Issue an appropriate writ, order or direction, declaring in the above context, the use of word “may” in Section 88 CrPC as unconstitutional, manifestly arbitrary, unreasonable and ultra vires of the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India or in the alternative to read it down by expounding, deliberating and delineating its scope in the context, to save Section 88 from unconstitutionality on the vice of Articles 14 and 21 of the Constitution of India.
(b) Issue a writ of certiorari or any other appropriate writ, order or direction, setting aside the impugned order(s) dated 7-12-2017 passed by the trial court i.e. Special Judge for Anti-Corruption CBI cases at Ghaziabad, with consequential relief of setting the petitioner at liberty by permitting him to furnish his bonds under Section 88 CrPC to the satisfaction of the said trial court in RC No. RC/DST/2015/A/0004/CBI/STF/DLI dated 30-7-2015.
(c) Any further order as may be in the interest of justice may also be passed by this Hon'ble Court.”
7. The writ petition has been dismissed by the Division Bench of the High Court vide its judgment and order dated 21-12-2017 2017 SCC OnLine All 2635, against which judgment this appeal has been filed.
8. We have heard Shri Mukul Rohatgi, learned Senior Counsel appearing for the appellant and Shri Maninder Singh, Additional Solicitor General of India for the respondent.
9. Shri Mukul Rohatgi, learned Senior Counsel appearing for the appellant submits that the appellant having not been arrested during investigation when he appeared before the Special Judge, CBI, it was obligatory on the part of the Court to have accepted the bail bond under Section 88 CrPC and released the appellant forthwith. It is submitted that the Court of Special Judge committed error in rejecting the application under Section 88. It is further submitted that the bail application was not filed by the appellant since all those, who appeared before the Court were taken into custody and their bail applications were rejected. The learned Senior Counsel submits that although Section 88 uses the word “may” but the word “may” has to be read as “shall” causing an obligation on the Court to release on bond, those, who appeared on their own volition in the Court. He further submits that the High Court committed error in observing that the petitioner has concealed material facts from this Court when he had filed SLP (Criminal) No. 7749 of 2017. It is submitted that all facts were mentioned in SLP (Criminal) No. 7749 of 2017 and observation of the High Court that any fact was concealed is incorrect.
10. Shri Maninder Singh, learned Additional Solicitor General of India for the respondent refuting the submission of the appellant contended that Section 88 CrPC has been rightly interpreted by the High Court. It is submitted that against the appellant not only summons but non-bailable warrant and proceedings under Sections 82 and 83 CrPC were also initiated by the Special Judge. Hence, he was not entitled for indulgence of being released on submission of bond under Section 88 CrPC. He further submits that the court has discretionary power under Section 88 to release a person on accepting bond, which cannot be claimed as a matter of right by the accused, who has already been summoned and against whom non-bailable warrant has been issued. It is further submitted that although the appellant-petitioner has filed various applications under Section 482 CrPC as well as special leave petitions before this Court, but has so far not filed any bail application before the Special Judge, CBI. He submits that although liberty was taken by the appellant from this Court on 16-1-2017 when SLP (Crl.) No. 10190 of 2017 was dismissed 2017 SCC OnLine SC 1592 as well as on 24-11-2017 when SLP (Crl.) No. 7749 of 2017 was disposed 2017 SCC OnLine SC 1606 of to apply for regular bail before the Court but inspite of taking such liberty, no application for bail was filed by the appellant.
11. We have considered the submissions of the learned Senior Counsel for the parties and perused the records.
12. The main issue which needs to be answered in the present appeal is as to whether it was obligatory for the Court to release the appellant by accepting the bond under Section 88 CrPC on the ground that he was not arrested during investigation or the Court has rightly exercised its jurisdiction under Section 88 in rejecting the application filed by the appellant praying for release by accepting the bond under Section 88 CrPC.
13. Section 88 CrPC is a provision which is contained in Chapter VI “Processes to Compel Appearance” of the Code of Criminal Procedure, 1973. Chapter VI is divided in four sections — A. Summons; B. Warrant of arrest; C. Proclamation and Attachment; and D. Other rules regarding processes. Section 88 provides as follows:
“88. Power to take bond for appearance.—When any person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or warrant, is present in such court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such court, or any other court to which the case may be transferred for trial.”
14. We need to first consider as to what was the import of the words “may” used in Section 88.
15. Justice G.P. Singh in Principles of Statutory Interpretation, 14th Edn., while considering the enabling words “may” explained the following principles of interpretation:
“(k) Enabling words e.g. “may”, “it shall be lawful”, “shall have power”. Power coupled with duty
Ordinarily, the words “May” and “it shall be lawful” are not words of compulsion. They are enabling words and they only confer capacity, power or authority and imply discretion. “They are both used in a statute to indicate that something may be done which prior to it could not be done”. The use of words “Shall have power” also connotes the same idea.”
16. Although, ordinary use of word “may” imply discretion but when the word “may” is coupled with duty on an authority or court, it has been given meaning of shall that is an obligation on an authority or court. Whether use of the word “may” is coupled with duty is a question, which needs to be answered from the statutory scheme of a particular statute. The principles of interpretation have been laid down by Lord Cairns in Julius v. Lord Bishop of Oxford (1880) LR 5 AC 214, (1874-80) All ER Rep 43 (HL) where Lord Cairns enunciated principles of statutory interpretation in the following words: (LR pp. 221-223, 225 & 244)
“… there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.
***
… where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the court will require it to be exercised.
***
… The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right.”
17. The learned Senior Counsel for the appellant has referred to the judgments of this Court in State of U.P. v. Jogendra Singh AIR 1963 SC 1618 and Ramji Missar v. State of Bihar AIR 1963 SC 1088, (1963) 2 Cri LJ 173. In State of U.P. v. Jogendra Singh AIR 1963 SC 1618, this Court had the occasion to consider the use of word “may” in Rule 4(2) of the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947. In the above regard, in para 8 following has been stated: (Jogendra Singh case AIR 1963 SC 1618, AIR p. 1620)
“8. Rule 4(2) deals with the class of gazetted government servants and gives them the right to make a request to the Governor that their cases should be referred to the Tribunal in respect of matters specified in clauses (a) to (d) of sub-rule (1). The question for our decision is whether like the word “may” in Rule 4(1) which confers the discretion on the Governor, the word “may” in sub-rule (2) confers the discretion on him, or does the word “may” in sub-rule (2) really mean “shall” or “must”? There is no doubt that the word “may” generally does not mean “must” or “shall”. But it is well settled that the word “may” is capable of meaning “must” or “shall” in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word “may” which denotes discretion should be construed to mean a command. Sometimes, the legislature uses the word “may” out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. In the present case, it is the context which is decisive. The whole purpose of Rule 4(2) would be frustrated if the word “may” in the said rule receives the same construction as in sub-rule (1). It is because in regard to gazetted government servants the discretion had already been given to the Governor to refer their cases to the Tribunal that the rule-making authority wanted to make a special provision in respect of them as distinguished from other government servants falling under Rule 4(1) and Rule 4(2) has been prescribed, otherwise Rule 4(2) would be wholly redundant. In other words, the plain and unambiguous object of enacting Rule 4(2) is to provide an option to the gazetted government servants to request the Governor that their cases should be tried by a tribunal and not otherwise. The rule-making authority presumably thought that having regard to the status of the gazetted government servants, it would be legitimate to give such an option to them. Therefore, we feel no difficulty in accepting the view taken by the High Court that Rule 4(2) imposes an obligation on the Governor to grant a request made by the gazetted government servant that his case should be referred to the Tribunal under the Rules. Such a request was admittedly made by the respondent and has not been granted. Therefore, we are satisfied that the High Court was right in quashing the proceedings proposed to be taken by the appellant against the respondent otherwise than by referring his case to the Tribunal under the Rules.”
18. This Court held that use of the word “may” in Rule 4(2) confers an obligation and gave the right to the government servants to make a request to the Governor. Thus, in the above case, the word “may” was coupled with duty, which was held to be obligatory.
19. In Ramji Missar v. State of Bihar AIR 1963 SC 1088, (1963) 2 Cri LJ 173, this Court again considered Sections 11(1) and 6(2) of the Probation of Offenders Act, 1958. In para 16, this Court laid down the following: (AIR pp. 1092-93)
“16. Though the word “may” might connote merely an enabling or permissive power in the sense of the usual phrase “it shall be lawful”, it is also capable of being construed as referring to a compellable duty, particularly when it refers to a power conferred on a court or other judicial authority. As observed in Maxwell on Statutes:
‘Statutes which authorise persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they ‘may’, or ‘shall, if they think fit,’ or, ‘shall have power,’ or that ‘it shall be lawful’ for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have — to say the least — a compulsory force. …’ ”
20. This Court noticed that in the 1958 Act, certain tests as a guidance have been laid down for exercise of discretion by the Court. The Court rejected the submission that there is unfettered discretion in the appellate court in exercising power under Section 11. The above case was also a case where discretion given to the Court to be exercised under certain guidelines and tests, which was a case of discretion coupled with duty.
21. This Court in State of Kerala v. Kandath Distilleries (2013) 6 SCC 573 came to consider the use of expression “may” in the Kerala Abkari Act, 1902. The Court held that the expression conferred discretionary power on the Commissioner and power is not coupled with duty. Following observation has been made in para 29:
“29. Section 14 uses the expression “Commissioner may”, “with the approval of the Government” so also Rule 4 uses the expressions “Commissioner may”, “if he is satisfied” after making such enquiries as he may consider necessary “licence may be issued”. All those expressions used in Section 14 and Rule 4 confer discretionary powers on the Commissioner as well as the State Government, not a discretionary power coupled with duty.”
(emphasis in original)
22. Section 88 CrPC does not confer any right on any person, who is present in a court. Discretionary power given to the court is for the purpose and object of ensuring appearance of such person in that court or to any other court into which the case may be transferred for trial. Discretion given under Section 88 to the court does not confer any right on a person, who is present in the court rather it is the power given to the court to facilitate his appearance, which clearly indicates that use of the word “may” is discretionary and it is for the court to exercise its discretion when situation so demands. It is further relevant to note that the word used in Section 88 “any person” has to be given wide meaning, which may include persons, who are not even accused in a case and appeared as witnesses.
23. The learned counsel for the appellant has referred to two judgments of the Delhi High Court, namely, CBI, In re 2004 SCC OnLine Del 53, (2004) 109 DLT 494. In the above case, certain general directions were issued by the Court in context of Sections 173 and 170 CrPC. The said case was not a case where issue which has fallen in the present case pertaining to Section 88 CrPC was involved. The subsequent judgment of the Delhi High Court in Sanjay Chaturvedi v. State 2006 SCC OnLine Del 1126, (2006) 132 DLT 692 was also a case where earlier judgment of the Delhi High Court in CBI, In re 2004 SCC OnLine Del 53, (2004) 109 DLT 494 was followed. The said case also does not in any manner adopted the interpretation of Section 88 as contended by the appellant.
24. Another judgment of the Delhi High Court in Sanjay Chandra v. CBI 2011 SCC OnLine Del 2365 decided on 23-5-2011 supports the submission raised by the learned Additional Solicitor General that power under Section 88 CrPC, the word “may” used in Section 88 CrPC is not mandatory and is a matter of judicial discretion. Paras 20, 21 and 22 of the judgment are to the following effect: (SCC OnLine Del)
“20. Learned Shri Ram Jethmalani and learned Shri K.T.S. Tulsi, Senior Advocates appearing for accused Sanjay Chandra, learned Shri Mukul Rohatgi, Senior Advocate appearing for accused Vinod Goenka, learned Shri Soli Sorabjee and learned Shri Ranjit Kumar, Senior Advocates appearing for accused Gautam Doshi, learned Shri Rajiv Nayar, Senior Advocate appearing for accused Hari Nair and learned Shri Neeraj Kishan Kaul, Senior Advocate appearing for accused Surendra Pipara, at the outset, have contended that the order of learned Special Judge dated 20-4-2011 rejecting the bail of the petitioners is violative of the mandate of Section 88 CrPC. It is contended that admittedly the petitioners were neither arrested during investigation nor were they produced in custody along with the charge-sheet as envisaged under Section 170 CrPC. Therefore, the trial court was supposed to release the petitioners on bail by seeking bonds with or without sureties in view of Section 88 CrPC. Thus, it is urged that on this count alone, the petitioners are entitled to bail.
21. The interpretation sought to be given by the petitioners is misconceived and based upon incorrect reading of Section 88 CrPC, which is reproduced thus:
‘88. Power to take bond for appearance.—When any person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or warrant, is present in such court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such court, or any other court to which the case may be transferred for trial.’
22. On reading of the above, it is obvious that Section 88 CrPC empowers the court to seek bond for appearance from any person present in the court in exercise of its judicial discretion. The section also provides that aforesaid power is not unrestricted and it can be exercised only against such persons for whose appearance or arrest the court is empowered to issue summons or warrants. The words used in the section are “may require such person to execute a bond” and any person present in the court. The user of word “may” signifies that Section 88 CrPC is not mandatory and it is a matter of judicial discretion of the court. The word “any person” signifies that the power of the court defined under Section 88 CrPC is not accused specific only, but it can be exercised against other category of persons such as the witness whose presence the court may deem necessary for the purpose of inquiry or trial. Careful reading of Section 88 CrPC makes it evident that it is a general provision defining the power of the court, but it does not provide how and in what manner this discretionary power is to be exercised. The petitioners are accused of having committed non-bailable offences. Therefore, their case for bail falls within Section 437 of the Code of Criminal Procedure which is the specific provision dealing with grant of bail to an accused in cases of non-bailable offences. Thus, on conjoint reading of Sections 88 and 437 CrPC, it is obvious that Section 88 CrPC is not an independent section and it is subject to Section 437 CrPC. Therefore, I do not find merit in the contention that order of the learned Special Judge refusing bail to the petitioners is illegal being violative of Section 88 CrPC.”
25. Another judgment which is relevant in this context is the judgment of the Patna High Court in Anand Deo Singh v. State of Bihar 2000 SCC OnLine Pat 311, (2000) 2 PLJR 686. The Patna High Court had the occasion to consider Section 88 CrPC where in para 18, following has been held: (SCC OnLine Pat)
“18. In my considered view, Section 88 of the Code is an enabling provision, which vests a discretion in the Magistrate to exercise power under the said section asking the person to execute a bond for appearance only in bailable cases or in trivial cases and it cannot be resorted to in cases of serious offences. Section 436 of the Code itself provides that bond may be asked for only in cases of bailable offences.”
26. This Court had the occasion to consider Section 91 CrPC, 1898, which was akin to present Section 88 of the 1973 Act, in Madhu Limaye v. Ved Murti (1970) 3 SCC 739, following observations were made in context of Section 91:
“17. … In fact Section 91 applies to a person who is present in court and is free because it speaks of his being bound over, to appear on another day before the Court. That shows that the person must be a free agent whether to appear or not. If the person is already under arrest and in custody, as were the petitioners, their appearance depended not on their own violation but on the violation of the person who had their custody. This section was therefore inappropriate and the ruling cited in support of the case were wrongly decided as was held by the Special Bench. …”
27. Another judgment relied upon by the appellant is the judgment of the Punjab & Haryana High Court in Arun Sharma v. Union of India 2016 SCC OnLine P&H 5954, (2016) 3 RCR (Cri) 883. In the above case, the Punjab & Haryana High Court was considering Section 88 CrPC read with Section 65 of the Prevention of Money-Laundering Act. In the above context, following has been observed in para 11: (SCC OnLine P&H)
“11. On the same principles, in absence of anything inconsistent in PMLA with Section 88 CrPC, when a person voluntarily appears before the Special Court for PMLA pursuant to issuance of process vide summons or warrant, and offers submission of bonds for further appearances before the court, any consideration of his application for furnishing such bond, would be necessarily governed by Section 88 CrPC read with Section 65 of PMLA. Section 88 CrPC reads as follows:
‘88. Power to take bond for appearance.—When any person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or warrant, is present in such court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such court, or any other court to which the case may be transferred for trial.’
This Section 88 (corresponding to Section 91 CrPC, 1898) would not apply qua a person whose appearance is not on his volition, but is brought in custody by the authorities as held by the Constitution Bench of the Hon'ble Supreme Court in Madhu Limaye v. Ved Murti (1970) 3 SCC 739, wherein it was observed that:
‘17. … In fact Section 91 applies to a person who is present in court and is free because it speaks of his being bound over, to appear on another day before the court. That shows that the person must be a free agent whether to appear or not. If the person is already under arrest and in custody, as were the petitioners, their appearance depended not on their own volition but on the volition of the person who had their custody.’
Thus, in a situation like this where the accused were not arrested under Section 19 of PMLA during investigations and were not produced in custody for taking cognizance, Section 88 CrPC shall apply upon appearance of the accused person on his own volition before the trial court to furnish bonds for further appearances.”
28. The present is not a case where accused was a free agent whether to appear or not. He was already issued non-bailable warrant of arrest as well as proceeding of Sections 82 and 83 CrPC had been initiated. In this view of the matter he was not entitled to the benefit of Section 88.
29. In the Punjab & Haryana case, the High Court has relied on judgment of this Court in Madhu Limaye v. Ved Murti (1970) 3 SCC 739 and held that Section 88 shall be applicable since accused were not arrested under Section 19 of PMLA during investigation and were not taken into custody for taking cognizance. What the Punjab & Haryana High Court missed, is that this Court in the same paragraph had observed “that shows that the person must be a free agent whether to appear or not”. When the accused was issued warrant of arrest to appear in the court and proceeding under Sections 82 and 83 CrPC has been initiated, he cannot be held to be a free agent to appear or not to appear in the court. We thus are of the view that the Punjab & Haryana High Court has not correctly applied Section 88 in the aforesaid case.
30. We thus conclude that the word “may” used in Section 88 confers a discretion on the Court whether to accept a bond from an accused from a person appearing in the court or not. The both Special Judge, CBI as well as the High Court has given cogent reasons for not exercising the power under Section 88 CrPC. We do not find any infirmity in the view taken by the Special Judge, CBI as well as the High Court in coming to the conclusion that the accused was not entitled to be released on acceptance of bond under Section 88 CrPC. We thus do not find any error in the impugned judgment of the High Court.
31. Shri Mukul Rohatgi, learned Senior Counsel for the appellant has placed reliance on a recent judgment of this Court dated 6-2-2018 in Dataram Singh v. State of U.P. (2018) 3 SCC 22 The learned counsel for the appellant submits that this Court has elaborately explained principles for grant or refusal of bail. This Court in paras 5 and 6 made the following observations:
“5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India (2018) 11 SCC 1 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565, in which it is observed that it was held way back in Nagendra Nath Chakravarti, In re 1923 SCC OnLine Cal 318, AIR 1924 Cal 476 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson 1931 SCC OnLine All 14, AIR 1931 All 356, wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.
6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.”
32. In the facts of the aforesaid case, the Court held that the trial court as well as the High Court ought to have exercised the discretion in granting the bail to the appellant. This Court in the above circumstances, granted the bail to the appellant of that case. There cannot be any dispute to the proposition as laid down by this Court with regard to grant or refusal of the bail, which are well settled. The discretion to grant bail has to be exercised judiciously and in a humane manner and compassionately as has been laid down by this Court in the above case.
33. Shri Mukul Rohatgi, learned Senior Counsel appearing for the appellant submits that since the appellant has made a request to set him on liberty by accepting the bond before the Special Judge, CBI as well may release the appellant on bail. He further submits that the appellant is a person with 60% disability. He further submits that the loss which was alleged in the first information report is secured and this Court may exercise its jurisdiction in granting the bail to the appellant.
34. There are two reasons due to which we are unable to accept the request of the appellant to consider the case of bail of the appellant in the present proceeding. Firstly, this Court on two earlier occasions had granted liberty to the appellant to make an application for bail before the trial court, the appellant has not filed any application for bail before the trial court and had insisted on releasing him on acceptance of bond under Section 88 CrPC. Secondly, in the facts of this case, trial court is to first consider the prayer of grant of bail of the appellant. We, thus, are of the view that as and when the appellant files a bail application, the same shall be considered forthwith by the trial court taking into consideration his claim of disability and other relevant grounds which are urged or may be urged by the appellant before it.
35. With these observations, the appeal is disposed of.