Bail = 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.=He further submits that 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. we are unable to accept the request of the appellant to consider the case of bail of the appellant in 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 Cr.P.C. 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 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.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 321 OF 2018

(Arising Out of SLP (Crl.) Diary No. 1445 of 2018)

PANKAJ JAIN … APPELLANT

VERSUS

UNION OF INDIA & ANR. … RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

Leave granted.

2. This appeal has been filed against the

judgment and order of Allahabad High Court dated

21.12.2017 dismissing the 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

“Cr.P.C.”). Before we come to the impugned

2

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.

3. A First Information Report under Sections

120-B, 409, 420, 466, 467, 469 and 471 of Indian

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

15.03.2016 being Charge Sheet No.02/2016 was

submitted in the Court of Special Judge, C.B.I.

against several accused including Yadav Singh

and the appellant Pankaj Jain. The trial court

took cognizance by order dated 29.03.2016

summoning accused for 29.04.2016 for appearance.

The appellant filed an application under Section

482 Cr.P.C. in the Allahabad High Court being

3

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 29.03.2016. The application was

finally disposed off by the High Court vide

order dated 17.10.2016 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 an

Special Leave Petition (Crl.) No. 10191/2016

against the judgment of the High Court dated

17.10.2016, which was dismissed by this Court as

withdrawn on 16.01.2017 with liberty to apply

for regular bail.

4. A supplementary charge sheet was filed on

31.05.2017, on the basis of which a Cognizance

Order dated 07.06.2017 was passed by the Special

Judge, C.B.I. taking cognizance against the

appellant and other accused under Sections 120B,

4

420, 468, 471 of I.P.C. and Sections 13(2) and

13(1)(d) of the Prevention of Corruption Act,

1988. Again an application under Section 482

Cr.P.C. 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

31.05.2017. The High Court vide its order dated

06.07.2017 disposed of the application under

Section 482 Cr.P.c. directing that if the

applicant appears and surrenders before the

Special Judge, C.B.I. 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 06.07.2017 again filed an Special

Leave Petition (Criminal) No. 7749 of 2017,

which was disposed of by this Court on

5

24.11.2017 granting further two weeks’ time to

the petitioner(appellant) to apply for regular

bail before the Special Judge, C.B.I. with a

direction to the trial court to consider the

said application for bail forthwith.

5. On 27.11.2017, the case was taken up by the

Special Judge, C.B.I. The Court noticed that

appellant and one other accused was not present.

The Court ordered for issuing non-bailable

warrants and process of Sections 82 and 83 of

Cr.P.C. against the appellant. On the same day,

noticing the order passed by this Court on

24.11.2017 in S.L.P. (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

petitioner (appellant), who was not arrested

6

during investigation by the C.B.I., 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 06.12.2017 noticing the

earlier order of this Court dated 24.11.2017

with the following order:-

“In view of our aforesaid orders

dated 24.11.2017, 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 Cr.P.C.

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.

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, 07.12.2017. This

statement of the learned senior

counsel is noted.

7

The writ petition stands disposed

of in the aforesaid terms.”

6. After order of this Court dated 06.12.2017,

the appellant appeared before Court of Special

Judge, C.B.I. and submitted an application dated

07.12.2017. 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 passed in

the Writ Petition (Crl.) No. 199 of

2017 read with Order dated 24.11.2017

passed in the SLP (Crl.) No. 7749 of

2017, and to permit him to furnish

such bond, as may deemed fit, as per

Section 88 of the Cr.P.C. in RC No.

RC/DST/2015/A/0004/CBI/STF/DLI dated

30.07.2015/Case No. 10A/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.”

 

7. The above application dated 07.12.2017 was

8

rejected by the Special Judge, C.B.I. The

Special Judge, C.B.I. 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 the application No. 14B of 2017.

Aggrieved against the judgment dated 07.12.2017,

another application No. 101B of 2017 was filed

by the appellant, which was also rejected. The

applicant filed a S.L.P. (Crl.) No. 9764 of

2017, which was disposed of vide its order dated

15.12.2017 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, the petitioner-appellant filed a

Writ Petition No. 62167 of 2017, where the

Petitioner-appellant also sought to challenge

the vires of Section 88 as well as writ for

9

Certiorari quashing the order dated 07.12.2017

of 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 of Cr.P.C. as

unconstitutional, manifestly

arbitrary, unreasonable and ultra

vires of the fundamental rights

guaranteed under Article 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

unconstitutionally on the vice of

Article 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 07.12.2017

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 of Cr.P.C.

to the satisfaction of the said

Trial Court in RC No.

RC/DST/2015/A/0004/CBI/STF/DLI

dated 30.07.2015.

(c) Any further Order as may be in the

interest of justice may also be

10

passed by this Hon’ble Court.”

8. The writ petition has been dismissed by

Division Bench of the High Court vide its

judgment and order dated 21.12.2017, against

which judgment this appeal has been filed.

9. We have heard Shri Mukul Rohtagi, learned

senior counsel appearing for the appellant and

Shri Maninder Singh, Additional Solicitor

General of India for the respondent.

10. Shri Mukul Rohtagi, learned senior counsel

appearing for the appellant submits that

appellant having not been arrested during

investigation when he appeared before the

Special Judge, C.B.I., it was obligatory on the

part of the Court to have accepted the bail bond

under Section 88 of the Cr.P.C. and released the

appellant forthwith. It is submitted that the

Court of Special Judge committed error in

rejecting the application under Section 88. It

11

is further submitted that 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. 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 petitioner has

concealed material facts from this Court when he

had filed S.L.P. (Criminal) No. 7749 of 2017.

It is submitted that all facts were mentioned in

S.L.P. (Criminal) No. 7749 of 2017 and

observation of the High Court that any fact was

concealed is incorrect.

11. Shri Maninder Singh, learned Additional

Solicitor General of India for the respondent

refuting the submission of the appellant

12

contended that Section 88 Cr.P.C. 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 Cr.P.C. were also

initiated by the Special Judge. Hence, he was

not entitled for indulgence of being released on

submission of bond under Section 88 Cr.P.C. 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 petitioner-appellant

has filed various applications under Section 482

Cr.P.C. as well as Special Leave Petitions

before this Court, but has so far not filed any

bail application before the Special Judge,

C.B.I. He submits that although liberty was

taken by the appellant from this Court on

13

16.01.2017 when SLP (Crl.) No. 10190 of 2017 was

dismissed as well as on 24.11.2017 when SLP

(Crl.) No. 7749 of 2017 was disposed off to

apply for regular bail before the Court but

inspite of taking such liberty, no application

for bail was filed by the appellant.

12. We have considered the submissions of the

learned senior counsel for the parties and

perused the records.

13. 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

Cr.P.C. 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 Cr.P.C.

14

14. Section 88 Cr.P.C. 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.

15. We need to first consider as to what was

the import of the words ‘may’ used in Section

88.

16. Justice G.P. Singh in “Principles of

Statutory Interpretation”, 14th Edition, while

considering the enabling words ‘may’ explained

15

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.”

17. 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 Vs. Lord Bishop of Oxford,

(1874-80) All ER Rep. 43 where Lord Cairns

enunciated Principles of Statutory

16

Interpretation in the following words:-

“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 the

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

specifically pointed out 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”

18. Learned senior counsel for the appellant

has referred to judgments of this Court in the

case of State of Uttar Pradesh Vs. Jogendra

Singh, AIR 1963 SC 1618 and Ramji Missar & Anr.

Vs. State of Bihar, AIR 1963 SC 1088. In State

of Uttar Pradesh Vs. Jogendra Singh (supra),

17

this Court had 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

Paragraph 8 following has been stated:-

“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 re-

18

ceives 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.”

19. This Court held that use of the word ‘may’

19

in Rule 4(2) confers an obligation and gaven 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.

20. In Ramji Missar & Anr. Vs. State of Bihar

(supra), this Court again considered Sections

11(1) and 6(2) of Probation of Offenders Act,

1958. In Para 16, this Court laid down

following:-

“16. Though the word “may” might connote

merely an enabling or premissive

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 law-

20

ful’ 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.”……………………

21. 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.

22. This Court in the case of State of Kerala &

Ors. Vs. Kandath Distilleries, (2013) 6 SCC 573

came to consider the use of expression ‘may’ in

Kerala Abkari Act, 1902. The Court held that

the expression conferred discretionary power on

21

the Commissioner and power is not coupled with

duty. Following observation has been made in

paragraph 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….”

23. Section 88 of the Cr.P.C. 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

22

facilitate his appearance, which clearly

indicates that use of 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.

24. Learned counsel for the appellant has

referred to two judgments of Delhi High Court,

namely, Court on Its own Motion Vs. Central

Bureau of Investigation, 109 (2003) Delhi Law

Times 494. In the above case, certain general

directions were issued by the Court in context

of Section 173 and 170 of Cr.P.C. The said case

was not a case where issue which has fallen in

the present case pertaining to Section 88

Cr.P.C. was involved. The subsequent judgment

of Delhi High Court in Sanjay Chaturvedi Vs.

23

State, 132 (2006) Delhi Law Times 692 was also a

case where earlier judgment of Delhi High Court

in Court on Its own Motion Vs. Central Bureau of

Investigation (supra) was followed. The said

case also does not in any manner adopted the

interpretation of Section 88 as contended by the

appellant.

25. Another judgment of Delhi High Court in

Bail Application No. 508 of 2011 Sanjay Chandra

Vs. C.B.I. decided on 23.05.2011 supports the

submission raised by learned Additional

Solicitor General that power under Section 88

Cr.P.C., the word ‘may’ used in Section 88

Cr.P.C. is not mandatory and is a matter of

judicial discretion. Paras 20, 21 and 22 of the

judgment are to the following effect:-

“20. Learned Shri Ram Jethmalani and

learned Shri K.T.S. Tulsi, Sr.

Advocates appearing for accused Sanjay

Chandra, learned Shri Mukul Rohtagi,

Sr. Advocate appearing for accused

Vinod Goenka, learned Shri Soli

Sorabjee and learned Shri Ranjit

Kumar, Sr. Advocates appearing for

accused Gautam Doshi, learned Shri

24

Rajiv Nayar, Sr. Advocate appearing

for accused Hari Nair and learned Shri

Neeraj Kishan Kaul, Sr. Advocate

appearing for accused Surendra Pipara,

at the outset, have contended that the

order of learned Special Judge dated

20th April, 2011 rejecting the bail of

the petitioners is violative of the

mandate of Section 88 Cr.P.C. It is

contended that admittedly the

petitioners were neither arrested

during investigation nor they were

produced in custody along with the

charge sheet as envisaged under

Section 170 Cr.P.C. Therefore, the

trial court was supposed to release

the petitioners on bail by seeking

bonds with or without sureties in view

of Section 88 Cr.P.C. 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 Cr.P.C., 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

25

obvious that Section 88 Cr.P.C.

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 Bail Applications

No.508/2011, 509/2011, 510/2011,

511/2011 & 512/2011 Page 21 of 34 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

Cr.P.C. 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 Cr.P.C. 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 Cr.P.C.

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. Petitioners

are accused of having committed nonbailable

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

Section 88 and 437 Cr.P.C., it is

26

obvious that Section 88 Cr.P.C. is not

an independent Section and it is

subject to Section 437 Cr.P.C.

Therefore, I do not find merit in the

contention that order of learned

Special Judge refusing bail to the

petitioners is illegal being violation

of Section 88 Cr.P.C.”

26. Another judgment which is relevant in this

context is judgment of Patna High Court in Dr.

Anand Deo Singh Vs. The State of Bihar & Ors.,

2000(2) Patna Law Journal Reports 686. The

Patna High Court had occasion to consider

Section 88 Cr.P.C. where in Para 18, following

has been held:-

“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

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 a case of

serious offences. Section 436 of the

Code itself provides that bond may be

asked for only in cases of bailable

offences.”

27. This Court had occasion to consider Section

91 of Cr.P.C. 1898, which was akin to present

27

Section 88 of 1973 Act, in Madhu Limaye & Anr.

Vs. Ved Murti & Ors., (1970) 3 SCC 739,

following observations were made in context of

Section 91:-

“…………….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……………….”

28. Another judgment relied by the appellant is

judgment of Punjab & Haryana High Court in Arun

Sharma Vs. Union of India & Ors., 2016 (3) RCR

(Criminal) 883. In the above case, the Punjab &

Haryana High Court was considering Section 88

Cr.P.C. read with Section 65 of Prevention of

Money Laundering Act. In the above context,

28

following has been observed in Para 11:-

“11. On the same principles, in

absence of anything inconsistent in

PMLA with section 88 of Cr.P.C., 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 of the Cr.P.C. read with

section 65 of PMLA. Section 88 of the

Cr.P.C. 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 of Cr.P.C., 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, AIR 1971 SC 2481 wherein it was

observed that”18…….In

fact Section 91

applies to a person who is present

29

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 of Cr.P.C. shall apply upon

appearance of the accused person on

his own volition before the Trial

Court to furnish bonds for further

appearances.”

29. 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 Cr.P.C.

had been initiated. In this view of the matter

he was not entitled to the benefit of Section

88.

30. In the Punjab & Haryana case, the High

30

Court has relied on judgment of this Court in

Madhu Limaye Vs. Ved Murti (supra) 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 accused was issued warrant

of arrest to appear in the Court and proceeding

under Sections 82 and 83 Cr.P.C. 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.

31. 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

31

Special Judge, C.B.I. as well as the High Court

has given cogent reasons for not exercising the

power under Section 88 Cr.P.C. We do not find

any infirmity in the view taken by the Special

Judge, C.B.I. as well as the High Court in

coming to the conclusion that accused was not

entitled to be released on acceptance of bond

under Section 88 Cr.P.C. We thus do not find any

error in the impugned judgment of the High

Court.

32. Shri Mukul Rohtagi, learned senior counsel

for the appellant has placed reliance on recent

judgment of this Court dated 06.02.2018 in

Dataram Singh Vs. State of Uttar Pradesh & Anr.,

Criminal Appeal No. 227 of 2018. Learned

counsel for the appellant submits that this

Court has elaborately explained principles for

grant or refusal of bail. This Court in Paras 6

and 7 made following observations:-

“6. The historical background of the

provision for bail has been

elaborately and lucidly explained in a

32

recent decision delivered in Nikesh

Tarachand Shah v. Union of India, 2017

(13) SCALE 609 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 v.

King-Emperor, AIR 1924 Cal 476 that

bail is not to be withheld as a

punishment. Reference was also made to

Emperor v. Hutchinson, 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.

7. 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.”

33. 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

33

appellant. This Court in 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.

34. Shri Mukul Rohtagi, 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, C.B.I. as well may release the appellant

on bail. He further submits that 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

35. 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

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 Cr.P.C. 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 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

36. With these observations, the appeal is

disposed of.

……………………..J.

( A.K. SIKRI )

……………………..J.

NEW DELHI, ( ASHOK BHUSHAN )

February 23, 2018.