Paragraph numbers below are the court’s original numbering, recovered from the source text.
20. In this analysis, the opinion in the impugned Judgment incorrectly concludes that the High Court is bereft or devoid of power to jurisdiction upon a petition which firstly pleads C surrender and, thereafter, prays for bail. The High Court could have perfunctorily taken the Appellant into its custody and then proceeded with the perusal of the prayer for bail; in the event of its coming to the conclusion that sufficient grounds had not been disclosed for enlargement on bail, necessary orders for D judicial or police custody could have been ordained. A Judge is expected to perform his onerous calling impervious of any public pressure that may be brought to bear on him. The Conundrum of Cognizance, Committal & Bail
21. We have already noted in para 8 the creation by the CrPC of a hiatus between the cognizance of an offence by the Magistrate and the committal by him of that offence to the Court of Session. Section 190 contemplates the cognizance of an offence by a Magistrate in any of the following four F circumstances: (i) upon receiving a complaint of facts; or (ii) upon a police report of such facts; or (iii) upon information received from any person other than a police officer, or (iv) upon the Magistrate's own knowledge. Thereafter, Section 193 proscribes the Court of Session from taking cognizance of any G offence, as a Court of original jurisdiction, unless the case has been committed to it by a Magistrate; its Appellate jurisdiction · is left untouched. Chapter XVI makes it amply clear that a . substantial period may inevitably intervene between a Magistrate taking cognizance of an offence triable by Sessions H and its committal to the Court of Session.
Section 204 casts the duty on a Magistrate to issue process; Section 205 empowers him to dispense with personal attendance of accused; Section 206 permits Special summons in cases of petty offence; Sections 207 and 208 obligate the Magistrate to furnish to the accused, free of cost, copies of sundry documents mentioned therein; and, thereafter, under Section 209 to commit the case to Sessions. What is to happen to the accused in this interregnum; can his liberty be jeopardized! The only permissible restriction to personal freedom, as a universal legal norm, is the arrest or detention of an accused for a reasonable period of 24 hours. Thereafter, the accused would c be entitled to seek before a Court his enlargement on bail. In connection with serious offences, Section 167 CrPC contemplates that an accused may be incarcerated, either in police or judicial custody, for a maximum of 90 days if the Charge Sheet has not been filed.
An accused can and very often does remain bereft of his personal liberty for as long as three months and law must enable him to seek enlargement on bail in this period. Since severe restrictions have been placed on the powers of a Magistrate to grant bail, in the case of an offence punishable by death or for imprisonment for life, an accused should be in a position to move the Courts meaningfully empowered to grant him succour. It is inevitable that the personal freedom of an individual would be curtailed even before he can invoke the appellate jurisdiction of Sessions Judge. The Constitution therefore requires that a pragmatic, positive and facilitative interpretation be given to the CrPC especially with regard to the exercise of its original jurisdiction by the Sessions Court. We are unable to locate any provision in the CrPC which prohibits an accused from moving the Court of Session for such a relief except, theoretically, Section 193 which also only prohibits it from taking cognizance of an offence as a Court of original jurisdiction.
This embargo does not prohibit the Court of Session from adjudicating upon a plea for bail. It appears to us that till the committal of case to the Court of Session, Section 439 can be invoked for the purpose of pleading for bail. If administrative difficulties are encountered, A such as, where there are several Additional Session Judges, they can be overcome by enabling the accused to move the Sessions Judge, or by further empowering the Additional Sessions Judge hearing other Bail Applications whether post committal or as the Appellate Court, to also entertain Bail B Applications at the pre-committal stage. Since the Magistrate is completely barred from granting bail to a person accused even of an offence punishable by death or imprisonment for life, a superior Court such as Court of Session, should not be incapacitated from considering a bail application especially c keeping in perspective that its powers are comparatively unfettered under Section 439 of the CrPC.
22. In the case in hand, we need not dwell further on this question since the Appellant has filed an application praying, firstly, that he be permitted to surrender to the High Court and D secondly, for his plea to be considered for grant of bail by the High Court. We say this because there are no provisions in the CrPC contemplating the committal of a case to the High Court, thereby logically leaving its powers untrammelled. There are no restrictions on the High Court to entertain an application for bail E provided always the accused is in custody, and this position obtains as soon as the accused actually surrenders himself to the Court. Reliance on R vs Evans, (2012) 1 WLR 1192, by learned Senior Counsel for the respondents before us is misplaced, since on its careful reading, the facts are totally F distinguishable inasmuch as the accused in that case had so engineered events as not to be available in persona in the Court at the time of the consideration of his application for surrender.
The Court of Appeal observed that they "do not agree that reporting to the usher amounts to surrender". The Court in G fact supported the view that surrender may also be accomplished by the commencement of any hearing before the Judge, however brief, where the accused person is formally identified and plainly would overtly have subjected himself to the control of the Court. Incontrovertibly, at the material time the H Appellant was corporeally present in the Bombay High Court making Evans applicable to the case of the Appellant rather than the case of the respondent. A further singularity of the present case is that the offence has already been committed to Sessions, albeit, the accused/Appellant could not have been brought before the Magistrate. It is beyond cavil "that a Court takes cognizance of an offence and not an offender" as observed in Dilawar Singh vs Parvinder Singh, (2005) 12 SCC 709, in which Raghubans Dubey vs State of Bihar, AIR 1967 SC 1167, was applied. Therefore, the High Court was not justified in directing the Appellant to appear before the Magistrate. c
23. On behalf of the State, the submission is that the prosecution should be afforded a free and fair opportunity of subjecting the accused to custody for interrogation as provided under Section 167 CrPC. This power rests with the Magistrate and not with the High Court, which is the Court of Revision and Appeal; therefore, the High Court under Section 482 CrPC can only correct or rectify an order passed without jurisdiction by a subordinate Court. Learned State counsel submits that the High Court in exercise of powers under Section 482 can convert the nature of custody from police custody to judicial custody and vice versa, but cannot pass an Order of first remanding to ~ustody. Therefore, the only avenue open to the accused is to appear before the Magistrate who is empowered under Section 167 CrPC. Thereupon, the Magistrate can order for police custody or judicial custody or enlarge him on bail. On behalf of the State, it is contended that if accused persons are permitted to surrender to the High Court, it is capable of having, if not a disastrous, certainly a deleterious effect on investigations and shall open up the flood gates for accused persons to make strategies by keeping themselves away from the investigating agencies for months on end. The argument continues that in this manner absconding accused in several sensitive cases, affecting the security of the nation or the economy of the country, would take advantage of such an interpretation of law and get away from the clutches of the investigating officer. We are not [2014] 4 S.C.R. · A impressed by the arguments articulated by learned Senior Counsel for the Complainant or informant because it is axiomatic that any infraction or inroad to "the freedom of an individual is possible only by some clear unequivocal and unambiguous procedure known to law. 8 Role of Public Prosecutor and Private Counsel in Prosecution
24. The concern of the Three Judge Bench in Thakur Ram vs State of Bihar AIR 1966 SC 911, principally was whether C the case before them should have been committed to Sessions, as also whether this plea could be countenanced at the stage when only the Judgment was awaited and any such interference would effectuate subjecting the accused to face trial virtually de novo. The observations that where "a case has D proceeded on a police report a private party has really no locus standi, since the aggrieved party is the State", are strictly senso obiter dicta but it did presage the view that was to be taken by this Court later. In Bhagwant Singh vs Commissioner of Police, (1985) 2 SCC 537, another Three Judge Bench formulated the E question which required its answer that "whether in a case where First Information Report is lodged and after completion of investigation initiated on the basis of the First Information Report, the police submits a report that no offence appears to have been committed, the Magistrate can accept the report and F drop the proceeding without issuing notice to the first informant or to the injured or in case the incident has resulted in death, to the relatives of the deceased".
Sections 154, 156, 157, 173 and 190 of the CrPC were duly considered threadbare, before opining thus:- "4 ….. when, on a consideration of the report made by the officer-in-charge of a police station under sub-section {2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take coghizance of the offence and issue process ….. "5. The position may however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate. We cannot spell out either from the provisions of the Code of Criminal Procedure, 1973 or from the principles of natural justice, any obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless such person is the informant who has lodged the First Information Report.
But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report ….. ." Thereafter, in Shiv Kumar vs Hukam Chand (1999) 7 SCC 467, the question that was posed before another Three Judge Bench was whether an aggrieved has a right to engage its own counsel to conduct the prosecution despite the presence of the Public Prosecutor. This Court duly noted that the role of the Public Prosecutor was upholding the law and putting together a sound prosecution; and that the presence of a private lawyer would inexorably undermine the fairness and impartiality which must be the hallmark, attribute and distinction of every proper prosecution. In that case the advocate appointed by the aggrieved party ventured to conduct the cross-examination of G the witness which was allowed by the Trial Court but was reversed in Revision by the High Court, and the High Court permitted only the submission of Written Argument after the closure of evidence. Upholding the view of the High Court, this A Court went on to observe that before the Magistrate any per.son (except a police officer below the rank of Inspector) could conduct the prosecution, but that this laxity is impermissible in Sessions by virtue of Section 225 of the CrPC, which pointedly states that the prosecution shall be conducted by a Public B Prosecutor. We, respectfully, agree with the observations that – "A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case.
The expected attitude of the Public Prosecutor while conducting prosecution c must be couched in fairness not only to the Court and to the investigating agencies but to the accused as well ……… A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament 0 applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor." In J.K. International vs State (2001) 3 SCC 462, the Appellant had filed a complaint alleging offences under Sections 420, 406 and 120-B IPC in respect of which a Charge Sheet was duly filed. The Appellant E preferred a petition in the High Court for quashing the FIR in which proceeding the complainant's request for being heard was rejected by the High Court. Thakur Ram and Bhagwant Singh were cited and analysed. It was reiterated by this Court that it is the Public Prosecutor who is in the management of the prosecution the Court should look askance at frequent F interjection and interference by a private person. However, if the proceedings are likely to be quashed, then the complainant should be heard at that stage, rather than compelling him to assail the quashment by taking recourse to an appeal. Sections 225, 301 and 302 were also adverted to and, thereafter, it was G opined that a private person is not altogether eclipsed from the scenario, as he remains a person who will be prejudiced by an order culminating in the dismissal of the prosecution. The Three Judge Bench observed that upon the Magistrate becoming prescient that a prosecution is likely to end in its H dismissal, it would be salutary tb allow a hearing to the Complainant at the earliest; and, in the case of a Sessions trial, by permitting the filing of Written Arguments.
25. The upshot of this analysis is that no vested right is · granted to a complainant or informant or aggrieved party to directly conduct a prosecution. So far as the Magistrate is concerned, comparative latitude is given to him but he must always bear in mind that while the prosecution must remain being robust and comprehensive and effective it should not abandon the need to be free, fair and diligent. So far as the Sessions Court is concerned, it is the Public Prosecutor who must at all times remain in control of the prosecution and a counsel of a private party can only assist the Public Prosecutor in discharging its responsibility. The complainant or informant or aggrieved party may, however, be heard at a crucial and critical juncture of the Trial so that his interests in the prosecution are not prejudiced or jeopardized. It seems to us that constant or even frequent interference in the prosecution should not be encouraged as it will have a deleterious impact on its impartiality. If the Magistrate or Sessions Judge harbours the opinion that the prosecution is likely to fail, prudence would prompt that the complainant or informant or aggrieved party be given an informal hearing. Reverting to the case in hand, we are of the opinion that the complainant or informant or aggrieved party who is himself an accomplished criminal lawyer and who has been represented before us by the erudite Senior Counsel, was not possessed of any vested right of being heard as it is manifestly evident that the Court has not formed any opinion adverse to the prosecution. Whether the Accused is to be granted bail is a matter which can adequately be argued by the State Counsel. We have, however, granted a full hearing to Mr. Gopal Subramanium, Senior Advocate and have perused detailed Written Submissions since we are alive to impact that our opinion would have on a multitude of criminal trials.
26. In conclusion, therefore, we are of the opinion that the learned Single Judge erred in law in holding that he was devoid (2014] 4 S.C.R. A of jurisdiction so far as the application presented to him by the Appellant before us was concerned. Conceptually, he could have declined to accept the prayer to surrender to the Courts' custody, although, we are presently not aware of any reason for this option to be exercised. Once the prayer for surrender B is accepted, the Appellant before us would come into the custody of the Court within the contemplation of Section 439 CrPC. The Sessions Court as well as the High Court, both of which exercised concurrent powers under Section 439, would then have to venture to the merits of the matter so as to decide C whether the applicant/Appellant had shown sufficient reason or grounds for being enlarged on bail.
27. The impugned Order is, accordingly, set aside. The Learned Single Judge shall consider the Appellant's plea for surrendering to the Court and dependent on that decision, the D Learned Single Judge-shall, thereafter, consider the Appellant's plea for his being granted bail. The Appellant shall not be .. arrested for a period of two weeks or till the final disposal of the said application, whichever is later. We expect that the learned Single Judge shall remain impervious to any pressure E that may be brought to bear upon him either from the public or from the media as this is the fundamental and onerous duty cast on every Judge.
28. The appeal is allowed in the above terms. R.P. Appeal allowed.