NIRANJAN SINGH & ANR. Vs. PRABHAKAR RAJARAM KHAROTE & ORS.
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 439 - Special powers of High Court or Court of Session regarding bail
Supreme Court of India (Single Judge)
Special Leave Petition (Crl.), 393 of 1980, Judgment Date: Mar 10, 1980
PETITIONER:
NIRANJAN SINGH & ANR.
Vs.
RESPONDENT:
PRABHAKAR RAJARAM KHAROTE & ORS.
DATE OF JUDGMENT10/03/1980
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
SEN, A.P. (J)
CITATION:
1980 AIR 785 1980 SCR (3) 15
1980 SCC (2) 559
ACT:
Criminal Procedure Code 1973, Section 439(1) (a)-
Enlargement on bail-Person to be accused of an offence and
in custody-When is a person in custody.
Bail-Orders on bail application-Detailed examination of
evidence, elaborate documentation to be avoided.
Suspension-Police Officers-Serious charges framed by a
criminal court-Placing such officers under suspension-
Necessity of.
HEADNOTE:
The petitioner was the complainant in a criminal case
where the accused were two sub-inspectors and eight police
constables (respondents 1 to 10). The case of the
complainant was that in pursuance to a conspiracy his
brother was way laid by a police party consisting of these
respondents. It was alleged that he was caught and removed
from the truck in which he was travelling, tied with a rope
to a tree and one of the sub-inspectors fired two shots from
his revolver on the chest of the deceased at close range
which killed him instantaneously. Having perpetrated this
villainy the policemen vanished from the scene. The
respondents' version was that the victim was himself a
criminal and was sought to be arrested. An encounter ensued,
both sides sustained injuries and the deceased succumbed to
a firearm shot.
The State not having taken any action, the petitioner
was constrained to file the private complaint. The
Magistrate who ordered an inquiry under section 202 Cr.P.C.
took oral evidence of the witnesses and found that there was
sufficient ground to proceed against all the respondents
under sections 302, 341, 395 and 404 read with section 34
IPC. Non-bailable warrants were issued for production of the
accused and the Magistrate who refused the bail stayed the
issuance of the warrants. The respondents moved the Sessions
Court for bail which granted bail subject to certain
directions and conditions. Feeling aggrieved, the petitioner
moved the High Court but it declined to interfere in
revision but imposed additional conditions to ensure that
the bail was not abused and the course of justice was not
thwarted.
In the special leave petition, the petitioner contended
that the respondents could not be released on bail as they
were not in custody and being on bail they were abusing
their freedom by threatening the petitioner.
^
HELD: 1. Custody, in the context of section 439 Cr.P.C.
is physical control or at least physical presence of the
accused in court coupled with submission to the jurisdiction
and orders of the court. He can be in custody not merely
when the police arrests him, produces him before a
Magistrate and gets a remand to judicial or other custody.
He can be stated to be in judicial custody when he
surrenders before the court and submits to its directions.
[19 F-G]
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2. A responsible Government, responsive to appearances
of justice, would have placed police officers against whom
serious charges had been framed by a criminal court, under
suspension unless exceptional circumstances suggesting a
contrary course exist. A gesture of justice to courts of
justice is the least that a government owes to the governed.
[20 H-21 A]
3. Detailed examination of the evidence and elaborate
documentation of the merits should be avoided while passing
orders on bail applications. No party should have the
impression that his case has been prejudiced. To be
satisfied about a prima facie case is needed but it is not
the same as an exhaustive exploration of the merits in the
order itself. [18 C]
4. Grant of bail is within the jurisdiction of the
Sessions Judge but the court must not, in grave cases,
gullibly dismiss the possibility of police-accused
intimidating the witnesses with cavalier ease. Intimidation
by policemen, when they are themselves accused of offences,
is not an unknown phenomenon. [18 D-E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Special Leave
Petition (Criminal) No. 393 of 1980.
From the Judgment and Order dated 25-9-1979 of the
Bombay High Court in Crl. Appln. No. 607 of 1979.
Petitioner No. 1 in person.
P. R. Mridul, S. V. Deshpande and N. M. Ghatate for
Respondents 1 to 11.
O. P. Rana and M. N. Shroff for Respondent No. 13.
The Order of the Court was delivered by
KRISHNA IYER, J. "No one shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment"
is a part of the Universal Declaration of Human Rights. The
content of Art. 21 of our Constitution, read in the light of
Art. 19, is similarly elevating. But romance about human
rights and rhetoric about constitutional mandates lose
credibility if, in practice, the protectors of law and
minions of the State become engines of terror and panic
people into fear. We are constrained to make these
observations as our conscience is in consternation when we
read the facts of the case which have given rise to the
order challenged before us in this petition for special
leave.
The petitioner, who has appeared in person is the
complainant in a criminal case where the accused are 2 Sub-
Inspectors and 8 Constables attached to the City Police
Station, Ahmednagar. The charges against them, as disclosed
in the private complaint, are of murder and allied offences
under ss. 302, 341, 395, 404 read with ss. 34 and 120B of
the Penal Code. The blood-curdling plot disclosed in the
complaint is
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that pursuant to a conspiracy the brother of the complainant
was way laid by the police party on August 27, 1978 as he
was proceeding to Shirdi. He had with him some gold
ornaments and cash. He was caught and removed from the truck
in which he was travelling, tied with a rope to a neem tree
nearby, thus rendering him a motionless target to a macabre
shooting. One of the Sub-Inspectors fired two shots from his
revolver on the chest of the deceased at close range and
killed him instantaneously. The policemen, having
perpetrated this villainy, vanished from the scene. No
action was taken by the State against the criminals. How
could they, when the preservers of the peace and
investigators of crime themselves become planned executors
of murders? The victim's brother was an advocate and he
filed a private complaint. The learned magistrate ordered an
inquiry under s. 202 Cr. P.C., took oral evidence of
witnesses at some length and held: "Thus taking an overall
survey of evidence produced before me, I am of the opinion
that there are sufficient grounds to proceed against all the
accused for the offences under ss. 302, 323, 342 read with
s. 34 I.P.C." Non-bailable warrants were issued for
production of the accused and the magistrate who refused
bail, stayed the issuance of the warrants although we are
unable to find any provision to enable him to do so. The
police-accused moved the sessions court for bail and, in an
elaborate order the sessions court granted bail subject to
certain directions and conditions. The High Court, which was
moved by the complainant for reversal of the order enlarging
the accused on bail, declined to interfere in revision but
added additional conditions to ensure that the bail was not
abused and the course of justice was not thwarted.
It is fair to state that the case in the complaint,
verified under s. 202 Cr. P.C. to have some veracity, does
not make us leap to a conclusion of guilt or refusal of
bail. On the contrary, the accused policemen have a version
that the victim was himself a criminal and was sought to be
arrested. An encounter ensued, both sides sustained injuries
and the deceased succumbed to a firearm shot even as some of
the police party sustained revolver wounds but survived.
Maybe, the defence case, if reasonably true, may absolve
them of the crime, although the story of encounters during
arrest and unwitting injuries resulting in casualties,
sometimes become a mask to hide easy liquidation of human
life by heartless policemen when some one allergic to
Authority resists their vices. The police have the advantage
that they prepared the preliminary record which may 'kill'
the case against them. This disquieting syndrome of
policemen committing crimes of killing and making up perfect
paperwork cases of innocent discharge of duty
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should not be ruled out when courts examine rival versions.
Indeed, we must emphasise that the trial judge shall not be
influenced by what we have said and shall confine himself to
the evidence in the case when adjudging the guilt of the
accused. We were constrained to make the observations above
because the Sessions Judge, quite unwarrantedly, discussed
at prolix length the probabilities of police party's
exculpatory case and held:
"So it is reasonable to hold that there was a
scuffle and resistance offered by the victim Amarjeet
Singh before shots were fired at his person by the
accused No. 1."
Detailed examination of the evidence and elaborate
documentation of the merits should be avoided while passing
orders on bail applications. No party should have the
impression that his case has been prejudiced. To be
satisfied about a prima facie case is needed but it is not
the same as an exhaustive exploration of the merits in the
order itself.
Grant of bail is within the jurisdiction of the
Sessions Judge but the court must not, in grave cases,
gullibly dismiss the possibility of police-accused
intimidating the witnesses with cavalier ease. In our
country, intimidation by policemen, when they are themselves
accused of offences, is not an unknown phenomenon and the
judicial process will carry credibility with the community
only if it views impartially and with commonsense the pros
and cons, undeterred by the psychic pressure of police
presence as indicates.
Let us now get to grips with the two legal submissions
made by the petitioner. The first jurisdictional hurdle in
the grant of bail argues the petitioner is that the accused
must fulfil the two conditions specified in s. 439 Cr. P.C.
before they can seek bail justice. That provision reads:
439. (1) A High Court or Court of Session may direct-
(a) that any person accused of an offence, and in
custody be released on bail, and if the offence is
of the nature specified in sub-section (3) of
section 437, may impose any condition which it
considers necessary for the purposes mentioned in
that sub-section,
(b) that any condition imposed by a Magistrate when
releasing any person on bail be set aside or
modified.
Here the respondents were accused of offences but were
not in custody, argues the petitioner. So no bail, since
this basic condition
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of being in jail is not fulfilled. This submission has been
rightly rejected by the courts below. We agree that, in our
view, an outlaw cannot ask for the benefit of law and he who
flees justice cannot claim justice. But here the position is
different. The accused were not absconding but had appeared
and surrendered before the Sessions Judge. Judicial
jurisdiction arises only when persons are already in custody
and seek the process of the court to be enlarged. We agree
that no person accused of an offence can move the court for
bail under s. 439 Cr. P.C. unless he is in custody.
When is a person in custody, within the meaning of
s.439 Cr. P.C. ? When he is in duress either because he is
held by the investigating agency or other police or allied
authority or is under the control of the court having been
remanded by judicial order, or having offered himself to the
court's jurisdiction and submitted to its orders by physical
presence. No lexical dexterity nor precedential profusion is
needed to come to the realistic conclusion that he who is
under the control of the court or is in the physical hold of
an officer with coercive power is in custody for the purpose
of s. 439. This word is of elastic semantics but its core
meaning is that the law has taken control of the person. The
equivocatory quibblings and hide-and-seek niceties sometimes
heard in court that the police have taken a man into
informal custody but not arrested him, have detained him for
interrogation but not taken him into formal custody and
other like terminological dubieties are unfair evasions of
the straightforwardness of the law. We need not dilate on
this shady facet here because we are satisfied that the
accused did physically submit before the Sessions Judge and
the jurisdiction to grant bail thus arose.
Custody, in the context of s. 439, (we are not, be it
noted, dealing with anticipatory bail under s.438) is
physical control or an least physical presence of the
accused in court coupled with submission to the jurisdiction
and orders of the court.
He can be in custody not merely when the police arrests
him, produces him before a Magistrate and gets a remand to
judicial or other custody. He can, be stated to be in
judicial custody when he surrenders before the court and
submits to its directions. In the present case, the police
officers applied for bail before a Magistrate who refused
bail and still the accused, without surrendering before the
Magistrate, obtained an order for stay to move the Sessions
Court. This direction of the Magistrate was wholly irregular
and maybe, enabled the accused persons to circumvent the
principle of s. 439 Cr.P.C. We might have taken a serious
view of such a course, indifferent to
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mandatory provisions by the subordinate magistracy but for
the fact that in the present case the accused made up for it
by surrender before the Sessions Court. Thus, the Sessions
Court acquired jurisdiction to consider the bail
application. It could have refused bail and remanded the
accused to custody, but, in the circumstances and for the
reasons mentioned by it, exercised its jurisdiction in
favour of grant of bail. The High Court added to the
conditions subject to which bail was to be granted and
mentioned that the accused had submitted to the custody of
the court. We therefore, do not proceed to upset the order
on this ground. Had the circumstances been different we
would have demolished the order for bail. We may frankly
state that had we been left to ourselves we might not have
granted bail but sitting under Art. 136 do not feel that we
should interfere with a discretion exercised by the two
courts below.
We are apprehensive that the accused being police
officers should not abuse their freedom and emphasise that
the Inspector General of Police of the State of Maharashtra
will take particular care to take two steps. He should have
a close watch on the functioning of the concerned police
officers lest the rule of law be brought into discredit by
officers of the law being allowed a larger liberty than
other people especially because the allegations in the
present case are grave and even if a fragment of it be true,
does little credit to the police force. It must be
remembered that the allegations are that the deceased was
dragged out of a truck to a secluded place later tied to a
tree and shot and killed by the police officers concerned.
We hasten to make it clear that these are one-sided
allegations and the accused have a counter-version of their
own and we do not wish to make any implications for or
against either version. The accused policemen are entitled
to an unprejudiced trial without any bias against the
'uniformed' force which has difficult tasks to perform.
We conclude this order on a note of anguish. The
complainant has been protesting against the State's bias and
police threats. We must remember that a democratic state is
the custodian of people's interests and not only police
interests. Then how come this that the team of ten policemen
against whom a magistrate after due enquiry found a case to
be proceeded with and grave charges including for murder
were framed continue on duty without so much as being
suspended from service until disposal of the pending
sessions trial? On whose side is the State? The rule of law
is not a one-way traffic and the authority of the State is
not for the police and against the people. A responsible
Government responsive to appearances of justice, would
21
have placed police officers against whom serious charges had
been framed by a criminal court under suspension unless
exceptional circumstances suggesting a contrary course
exist. After all a gesture of justice to courts of justice
is the least that a government owes to the governed. We are
confident that this inadvertence will be made good and the
State of Maharashtra will disprove by deeds Henry Clay's
famous censure :
"The arts of power and its minions are the same in
all countries and in all ages. It marks its victim
denounces it; and excites the public odium and the
public hatred to conceal its own abuses and
encroachments."
The observations that we have made in the concluding
portion of the order are of such moment, not merely to the
State of Maharashtra but also to the other States in the
country and to the Union of India, that we deem it necessary
to direct that a copy of this judgment be sent to the Home
Ministry in the Government of India for suitable sensitized
measures to pre-empt recurrence of the error we have
highlighted.
N.V.K.
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