Paragraph numbers below are the court’s original numbering, recovered from the source text.
15. First, we shall deal with the order passed by the High Court in M.Cr.C. No. 701 of 2013. We have already reproduced the same. The said order was the subject-matter of challenge in Special Leave Petition (Crl.) No. 2055 of 2013 and this Court has observed that the order under challenge was a mere direction to the accused to surrender and pray for bail. Thus, this is the interpretation placed by this Court on that order. It is apt to mention here that prior to passing of the said order the learned Additional Sessions Judge had allowed the application for grant of regular bail. The Division Bench entertaining an application under Section 482 CrPC had modified the order dated 1.2.2013 passed in M.Cr.C. No. 701 of 2013 and on that basis had cancelled the order granting bail in favour of the accused. The said order was assailed before this Court in Special Leave Petition (Crl.) No. 2826 of 2013 and it was set aside holding that the order was wholly misconceived as the Division Bench could not have reviewed the earlier order under Section 482 CrPC. However, as stated hereinbefore, this Court clearly stated that in the event the order of the learned single Judge of the High Court is misconstrued by the learned trial Court while granting bail to the accused, remedy of the complainant would be to challenge the same before the High Court. There cannot be any trace of doubt that the challenge to B the grant of bail order by the learned Additional Sessions Judge was kept alive by this Court and, accordingly, application was filed before the High Court which has been dealt with by the learned single Judge by the impugned order.
16. The thrust of the matter is whether the learned trial C Judge has actually misconstrued the order and granted bail or has really considered the necessary facets as required to be considered while entertaining an application under Section 439 CrPC. We have bestowed our anxious consideration and carefully scrutinized the order dated 6.2.2013 passed by the D learned Additional Sessions Judge, Guna. It is manifest that the learned trial Judge accepted the application for surrender and thereafter referring to the order passed in M.Cr.C. No. 701 of 2013 has opined thus: – "In the aforementioned case the Hon'ble High Court vide its order dated 01.02.2013 passed the orders with the directions that the applicant will surrender himself before the Compe~ent Court and he will submit his application for regular bail, and the said concerned court will accept the said application after furnishing of bail bonds. Therefore, the Hon'ble High Court has issued the orders to the competent court in favour of the applicant. In compliance of order dated 01.02.2013 passed by the Hon'ble High Curt in MCRC Case No. 701/13 u/s 438 Cr.P.C. surrendered before the Ld. Court, and because for trial of case u/s 302 IPC the Ld. Court is the Competent Court, hence the application of surrender of applicant may be accepted and the bail application u/s 439 Cr.P.C. submitted by the applicant may please be decided."
17. It is apt to note here that number of times the learned Additional Sessions Judge has referred to the order passed by the High Court and at one stage he has stated as follows: – " … the applicant had submitted a bail application being No. 154/2012 u/s 438 Cr.P.C. before the Ld. Session Judge. The said application was rejected on 14.09.2012 by the Ld. First Additional Session Judge Shri R.P. Mankalia and being aggrieved with the said order, the applicant filed a petition being application No. M.C.R.C. No. 701/13 u/s 438 Cr.P.C. before the Hon'ble High Court of Madhya Pradesh at Gwalior Bench. In this matter, the Hon'ble High Court passed its judgment and order dated 01.02.2013 with the directions that the applicant will surrender himself before the competent court and the applicant will submit his application for regular bail and the concerned court will accept the application and bail bonds of the applicant. Therefore the Hon'ble High Court has issued the directions for the Competent Court in favour of the applicant."
18. After so stating the learned trial Judge has referred to the submissions, application for remand for further investigation and, eventually, passed the following order: – "It has been revealed after perusal of case and case diary of the case that the bail application of the co-accused persons has already been admitted by the Hon'ble High Court. Offence of the applicant/ accused person is not different from the offence of other co-accused persons. Applicant himself has presented himself before the Ld. Session Judge, Guna and he also presented himself before this Court. After hearing all the parties by the Hon'ble High Court of Madhya Pradesh at Gwalior Bench titled Ranjit Singh Versus State of Madhya Pradesh in M.C.R.C. No. 701/13, the Hon'ble High Court has passed the orders for furnishing necessary bail bonds, hence, the application filed by the applicant u/s 439 Cr.P.C. is justified and found proper, therefore, the application of the applicant is accepted and he may be enlarged on bail on furnishing two bail bonds of sureties of Rs.75,000-75,000 each and personal bail bond of Rs.1,50,000/- to the satisfaction of Chief Judicial Magistrate, Guna."
19. We have reproduced the said order in extenso to appreciate whether as a matter of fact the learned Additional Sessions Judge has misconstrued the import of the order or decided the application under Section 439 CrPC regard being had to the considerations that are to be kept in mind while C dealing with such an application. As is evincible, there has been no deliberation with regard to the requirements under Section 439 CrPC. The order read in entirety clearly reflects that the learned Additional Sessions Judge had an erroneous perception and fallacious understanding of the order passed by the High Court and it is clear as day that the regular bail was D granted on the bedrock of the order passed by the High Court. He had absolutely misconstrued the order. Thus, the order passed by the learned Additional Sessions Judge is totally unjustified and illegal.
20. It needs no special emphasis to state that there is distinction between the parameters for grant of bail and cancellation of bail. There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the F accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court. We have already referred to various paragraphs of the order passed by the High Court. We G have already held that the learned trial Judge has misconstrued the order passed by the High Court. However, we may hasten to add that the learned single Judge has taken note of certain supervening circumstances to cancel the bail, but we are of the opinion that in the obtaining factual matrix the said exercise was not necessary as the grant of bail was absolutely illegal and unjustified as the court below had enlarged the accused A on bail on the strength of the order passed in M.Cr.C. No. 701 of 2013 remaining oblivious of the parameters for grant of bail under Section 439 Cr.P.C. It is well settled in law that grant of bail though involves exercise of discretionary power of the court, yet the said exercise has to be made in a judicious manner and not as a matter of course.
21. In Chaman Lal v. State of U.P., 1 this Court, while dealing with an application for bail, has stated that certain factors are to be borne in mind and they are: – c " …. (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court D in support of the charge."
22. In Prasanta Kumar Sarkar v. Ashis Chatterjee, 2 this Court, while emphasizing on the exercise of discretionary power generally has to be done in strict compliance with the basic principles laid down in plethora of decisions of this Court, has E observed as follows: – "9 … among other circumstances, the factors which are to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable 'ground to be believed that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; 1. c2004) 1 sec 525. 2. (2010) 14 sec 496. (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behavior, means. position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and c (viii) danger, of course, of justice being thwarted by grant of bail."
23. The said principles have been reiterated in Ash Mohammad v. Shiv Raj Singh alias Lalla Babu and another. 3
24. In this context, we may refer with profit to the recent pronouncement in Central Bureau of Investigation v. V. Vijay Sai Reddy4 wherein the learned Judges have expressed thus:- "28. While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/ State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence 3. c2012i g sec 446. H 4. 2013 (7) SCALE 15. in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."
25. We repeat at the cost of repetition that the aforesaid aspects have not been kept in view by the learned Additional Sessions Judge and, therefore, we are obliged in law to set aside the order passed by him and we so do. In view of the extinction of the order granting bail, the appellant shall surrender forthwith to custody failing which he shall be taken to custody as per law. Liberty is granted to the appellant to move an application for grant of regular bail. Needless to say, on such application being moved, the same shall be considered on its own merits regard being had to the parameters which have been laid down in aforestated authorities. c
26. We may hasten to add that because of our above direction the judgment of the High Court is required to be modified as the learned single Judge has cancelled the bail by taking certain other aspects into consideration. We may clearly state that it would have been appropriate on the part of the High Court to set aside the order of granting bail by the learned Additional Sessions Judge and permit the accused to surrender to custody and move an application for regular bail. Accordingly, the order passed by the High Court is modified to that extent. It needs to be stated that when an application for regular bail is moved, the learned trial Judge shall be free to deal with the matter as per law without being influenced by the factum that there had been an order of cancellation of bail. We have .said so as we have set aside the order admitting the appellant to. bail as it is illegal apd unjustified being solely based on the observation made by ttle High Court in its order passed in M.Cr.C. No. 701 of 2013. We may further add that proper opportunity shall be afforded to the Public Prosecutor to put forth his stand and stance at the time of consideration of the application preferred by the accused for grant of bail.
27. After saying so we would have proceeded to record our formal conclusion. But, something more is required to be stated. We are absolutely conscious that this Court on earlier occasion in Special Leave Petition (Crl.) No. 2055 of 2013 had clearly stated that the order under challenge merely directed the respondent-accused to surrender and pray for regular bail. The said clarification was made by this Court. Prior to that, the learned trial Judge misconstruing the order had enlarged the accused on bail.
28. This Court in Rashmi Rekha Thatoi and another v. State of Orissa and others5 has dealt with an order of the _High Court whereby the learned single Judge, while not granting anticipatory bail to some accused persons, had directed that in case the accused persons surrender and moye an application for regular bail, they shall be released on bail on such terms and conditions as may be deemed fit and proper. D After referring to the language employed in Section 438 CrPC, the Constitution Bench decision in Gurbaksh Singh, Sibbia v. State of Punjab, 6 and the law laid down in Savitri Agarwal v. State of Maharashtra, 7 Adri Dharan Das v. State of West Bengalr, 8 State of Maharashtra v. Mohd. Rashid'3 and Union E of India v. Padam Narain Aggarwal, 10 this Court has ruled thus:- 5. 6. 7. 8. 9. "33. We have referred to the aforesaid pronouncements to highlight how the Constitution Bench in Gurbaksh Singh Sibbia had analysed and explained the intrinsic underlying concepts under Section 438 of the Code, the nature of orders to be passed while conferring the said privilege, the conditions that are imposable and the discretions to be used by the courts. On a reading of the said authoritative (2012) 5 sec 690. (1980) 2 sec 565. (2009) 8 sec 325. (2005) 4 sec 303. (2005) 1 sec 56. 10. (2008) 13 sec 305 pronouncement and the principles that have been culled out in Savitry Agarwal there is remotely no indication that the Court of Session or the High Court can pass an order that on surrendering of the accused before the Magistrate he shall be released on bail on such terms and conditions as the learned Magistrate may deem fit and proper or the . B superior court would impose conditions for grant of bail on such surrender. When the High Court in categorical terms has expressed the view that it is not inclined to grant anticipatory bail to the petitioner-accused it could not have issued such a direction which would tantamount to c conferment of b~nefit by which the accused would be in a position to avoid arrest. It is in clear violation of the language employed in the statutory provision and in flagrant violation of the dictum laid down in Gurbaksh Singh Sibbia and the principles culled out in Savitri Agarwal." In the said case it has also been observed thus: – " … it is to be borne in mind that a court of law has to act within the statutory command and not deviate from it. It is a well-settled proposition of law what cannot be done directly, cannot be done indirectly. While exercising a statutory power a court is bound to act within the four comers thereof. The statutory exercise of power stands on a different footing than exercise of power of judicial review. This has been so stated in Bay Berry Apartments (P) Ltd. v. Shobha11and U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey. ·~ 29. In the case at hand, though such an order was not passed by the learned single Judge, yet the order passed by him was potent enough to create enormous confusion. And it has so happened. It is the duty of the superior courts to follow the command of the statutory provisions and be guided by the 11. (2006) 1.3 SCC.737. 12. (2006) 1 sec 479. [2013) 11 S.C.R. precedents and issue directions which are permissible in law. We are of the convinced opinion that the observations made by the learned single Judge while dealing with second application under Sectiol) 438 CrPC was not at all warranted under any circumstance as it was neither in consonance with B the language employed in Section 438 CrPC nor in accord with the established principles of law relating to grant of anticipatory bail.
We may reiterate that the said order has been interpreted by this Court as an order only issuing a direction to the accused to surrender, but as we find, it has really created colossal c dilemma in the mind of the learned Additional Sessions Judge. We· are pained to say that passing of these kind of orders has become quite frequent and the sagacious saying, "A stitch in time saves nine" may be an apposite reminder now. We painfully part with the case by saying so.
30. The appeal is disposed of in terms of the modification in the order passed by the learned single Judge in M.Cr.C. No. 701 of 2013 and the observations made hereinabove. B.B.B. Appeal disposed of.