PANKAJ JAIN versus UNION OF INDIA & ANR. on 23 February 2018

SUPREME COURT REPORTS

[2018] 9 S.C.R.

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PANKAJ JAIN

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UNION OF INDIA & ANR.

(Criminal Appeal No. 321 of 2018)

BFEBRUARY 23, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Code of Criminal Procedure, 1973 – s.88 – Interpretation of– Power to take bond for appearance – Whether it was obligatoryfor the trial Court to release the appellant by accepting the bondu/s.88 on the ground that he was not arrested during the investigationor has the trial Court rightly exercised its jurisdiction u/s.88 inrejecting the application for release by accepting the bond u/s.88 –Held: Trial Court has rightly exercised its jurisdiction u/s.88 – s.88does not confer any right on any person, who is present in a Court C

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– Discretionary power given to the Court is for the purpose andobject of ensuring appearance of such person in that Court or toany other Court into which the case may be transferred for trial –Discretion given u/s.88 to the Court does not confer any right on aperson, who is present in the Court rather it is the power given tothe Court to facilitate his appearance, which clearly indicates thatuse of word ‘may’ (in s.88) is discretionary and it is for the Court toexercise its discretion when situation so demands – Further, the wordused u/s.88 “any person” has to be given wide meaning, whichmay include persons, who are not even accused in a case andappeared as witnesses – Interpretation of Statutes.

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Code of Criminal Procedure,1973 – s.88 – Release onacceptance of bond u/s.88 – Entitlement for – Held: s.88 of theCr.P.C. does not confer any right on any person, who is present ina Court – Discretionary power given to the Court is for the purposeand object of ensuring appearance of such person in that Court orGto any other Court into which the case may be transferred for trial – The present is not a case where accused was a free agent whetherto appear or not – He was already issued non-bailable warrant ofarrest as well as proceeding of ss.82 and 83 Cr.P.C. had beeninitiated – In this view of the matter he was not entitled to the benefitof s.88.

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Bail – Request by appellant to release him on bail – Held:Request cannot be accepted – In instant case, the Supreme Courton two earlier occasions had granted liberty to the appellant tomake an application for bail before the trial court, however, theappellant had not filed any application and had only insisted forreleasing him on acceptance of bond u/s.88 Cr.P.C. – Also, in factsof this case, trial Court is to first consider the prayer of grant ofbail of the appellant – Thus, when the appellant files a bailapplication, the same shall be considered forthwith by trial courttaking into consideration his claim of disability and other relevantgrounds which are urged or may be urged by the appellant beforeit.

Disposing of the appeal, the Court

HELD: 1. Section 88 of the Cr.P.C. does not confer anyright on any person, who is present in a Court. Discretion givenunder Section 88 to the Court does not confer any right on aperson, who is present in the Court rather it is the power givento the Court to facilitate his appearance, which clearly indicatesthat use of word ‘may’ is discretionary and it is for the Court toexercise its discretion when situation so demands. It is furtherrelevant to note that the word used in Section 88 “any person”has to be given wide meaning, which may include persons, whoare not even accused in a case and appeared as witnesses. [Para23] [260-E-F]

2. The word ‘may’ used in Section 88 confers a discretionon the Court whether to accept a bond from an accused from aperson appearing in the Court or not. There is no infirmity in theview taken by the Special Judge, C.B.I. as well as the High Courtin coming to the conclusion that accused was not entitled to bereleased on acceptance of bond under Section 88 Cr.P.C. [Para31] [265-A-B]

3. Appellant submitted that since the appellant has made arequest to set him on liberty by accepting the bond before theSpecial Judge, C.B.I. as well may release the appellant on bail.He further submitted that appellant is a person with 60%disability, and that the loss which was alleged in the First AB

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AInformation Report is secured and this Court may exercise itsjurisdiction in granting the bail to the appellant. There are tworeasons due to which the request of the appellant to consider thecase of bail of the appellant in present proceeding is not accepted.Firstly, this Court on two earlier occasions had granted liberty tothe appellant to make an application for bail before the trial court,Bthe appellant has not filed any application for bail before the trialcourt and had insisted on releasing him on acceptance of bondunder Section 88 Cr.P.C. Secondly, in the facts of this case, trialcourt is to first consider the prayer of grant of bail of the appellant.Thus, when the appellant files a bail application, the same shallCbe considered forthwith by trial court taking into considerationhis claim of disability and other relevant grounds which are urgedor may be urged by the appellant before it. [Paras 34 and 35][266-B-F]

Sanjay Chandra v. C.B.I. decided on 23.05.2011 in BailDApplication No. 508 of 2011; Dr. Anand Deo Singh v.The State of Bihar & Ors. 2000 (2) Patna Law JournalReports 686 – approved.

Arun Sharma v. Union of India & Ors. 2016 (3) RCR(Criminal) 883 – disapproved.EState of Uttar Pradesh v. Jogendra Singh AIR 1963SC 1618 : [1964] SCR 197; Ramji Missar & Anr. v.State of Bihar AIR 1963 SC 1088 : [1963] Suppl. SCR 745; State of Kerala & Ors. v. Kandath Distilleries(2013) 6 SCC 573 : [2013] 4 SCR 1053; Court on ItsFown Motion v. Central Bureau of Investigation 109(2003) Delhi Law Times 494; Sanjay Chaturvedi v.State 132 (2006) Delhi Law Times 692; Madhu Limaye& Anr. v. Ved Murti & Ors. (1970) 3 SCC 739; DataramSingh v. State of Uttar Pradesh & Anr. 2018 (3) SCC 22– referred to.

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Julius v. Lord Bishop of Oxford (1874-80) All ER Rep.43 – referred to.

“Principles of Statutory Interpretation” 14[th] Editionby Justice G.P. Singh – referred to.

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Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 321 of 2018.

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From the Judgment and Order dated 21.12.2017 of the High Courtof Judicature at Allahabad in WP No. 62167 of 2017.

Mukul Rohtagi, Sr. Adv., Saurabh Kirpal, Sameer Rohtagi, AshishBatra, Wattan Sharma, Manish Gupta, Nikhil Jain, Advs. for theAppellants.

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Maninder Singh, ASG, R. Balasubramanian, Shekhar Vyas, AartiSharma, Prabhas Bajaj, Akshay Amritanshu, Arun Pathak, MukeshKumar Maroria, Advs. for the Respondents.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. Leave granted.

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2. This appeal has been filed against the judgment and order ofAllahabad High Court dated 21.12.2017 dismissing the Writ PetitionNo. 62167 of 2017 filed by the appellant. The principal issue, which hasarisen for interpretation of this Court, is the content and meaning ofSection 88 of the Code of Criminal Procedure, 1973 (hereinafter referredto as “Cr.P.C.”). Before we come to the impugned judgment of theHigh Court, it is necessary to note a series of litigations initiated at theinstance of the appellant in different courts, arising out of criminalproceeding lodged against him.

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A3. 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 againstone Yadav Singh, the then Chief Engineer of Noida, Greater Noida andthe Yamuna Expressway Authorities and a charge sheet dated 15.03.2016being Charge Sheet No.02/2016 was submitted in the Court of SpecialBJudge, C.B.I. against several accused including Yadav Singh and theappellant Pankaj Jain. The trial court took cognizance by order dated29.03.2016 summoning accused for 29.04.2016 for appearance. Theappellant filed an application under Section 482 Cr.P.C. in the AllahabadHigh Court being Application No. 31090 of 2016, praying for quashingCthe entire criminal proceeding of Special Case No. 10 of 2016 as well assummoning order dated 29.03.2016. The application was finally disposedoff by the High Court vide order dated 17.10.2016 with a direction thatif the applicant appears and surrenders before the Court below withintwo weeks and applies for bail, then his bail application shall be consideredand decided. The appellant filed an Special Leave Petition (Crl.) No.D10191/2016 against the judgment of the High Court dated 17.10.2016,which was dismissed by this Court as withdrawn on 16.01.2017 withliberty to apply for regular bail.

4. A supplementary charge sheet was filed on 31.05.2017, on thebasis of which a Cognizance Order dated 07.06.2017 was passed by theESpecial Judge, C.B.I. taking cognizance against the appellant and otheraccused under Sections 120B, 420, 468, 471 of I.P.C. and Sections 13(2)and 13(1)(d) of the Prevention of Corruption Act, 1988. Again anapplication under Section 482 Cr.P.C. being Application No. 18849 of2017 was filed by the appellant in the High Court praying for quashingFthe criminal proceeding in pursuance of supplementary charge sheetdated 31.05.2017. The High Court vide its order dated 06.07.2017disposed of the application under Section 482 Cr.P.c. directing that if theapplicant appears and surrenders before the Special Judge, C.B.I. withintwo weeks and applies for bail, it is expected that the same will bedisposed of expeditiously in accordance with law. It was further directedGin the meantime for a period of two weeks, effect of non-bailable warrantshall be kept in abeyance. The appellant aggrieved by the order of theHigh Court dated 06.07.2017 again filed an Special Leave Petition(Criminal) No. 7749 of 2017, which was disposed of by this Court on24.11.2017 granting further two weeks’ time to the petitioner(appellant)H

to apply for regular bail before the Special Judge, C.B.I. with a directionto 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 notpresent. The Court ordered for issuing non-bailable warrants and processof 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 againstthe appellant for a period of two weeks’ as per order of this Court. Theappellant further filed Writ Petition (Criminal) No. 199 of 2017 in thisCourt under Article 32 of the Constitution of India contending that thepetitioner (appellant), who was not arrested during investigation by theC.B.I., has to simply surrender and give a bond under Section 88 of theCode of Criminal Procedure. A direction to that effect was sought forby this Court. This Court disposed of the writ petition vide its orderdated 06.12.2017 noticing the earlier order of this Court dated 24.11.2017with the following order:-

“In view of our aforesaid orders dated 24.11.2017, we are of theopinion that the petitioner should, in the first instance, appear beforethe trial Court, which is the course of action already charted out.It would be open to the petitioner to move an application underSection 88 Cr.P.C. or a bail application, as may be advised. It willalso be open to the petitioner to rely upon the judgments in supportof his contention as noted above. It is for the trial Court to gothrough the matter and take a view thereupon. Insofar as thisCourt is concerned, no opinion on merits is expressed.

Mr. Mukul Rohatgi, learned senior counsel, submits that thepetitioner, who is present in the Court today, shall surrender andappear before the trial Court tomorrow, 07.12.2017. This statementof the learned senior counsel is noted.

The writ petition stands disposed of in the aforesaid terms.”

6. After order of this Court dated 06.12.2017, the appellantappeared before Court of Special Judge, C.B.I. and submitted anapplication dated 07.12.2017. In the application, following prayer hasbeen made:- “a) That this Hon’ble Court may be pleased to forthwith take upand dispose this application made by the Applicant Pankaj Jain, A

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Awho is voluntarily present before this Hon’ble Court, pursuant tothe liberty granted by the Hon’ble Supreme Court vide Orderdated 6.12.2017 passed in the Writ Petition (Crl.) No. 199 of 2017read with Order dated 24.11.2017 passed in the SLP (Crl.) No.7749 of 2017, and to permit him to furnish such bond, as maydeemed fit, as per Section 88 of the Cr.P.C. in RC No. RC/DST/B2015/A/0004/CBI/STF/DLI dated 30.07.2015/Case No. 10A/2016and 3/2017 without sending him to any prison;

b) Any such other or further order as this Hon’ble Court maydeem fit to grant in the facts and circumstances of the case and inthe interest of justice.”C

7. The above application dated 07.12.2017 was rejected by theSpecial Judge, C.B.I. The Special Judge, C.B.I. observed that theword ‘may’ used in Section 88 signifies that Section 88 is not mandatoryand it is a matter of judicial discretion. The Special Judge after noticingthe allegations of the appellant rejected the application No. 14B of 2017.DAggrieved against the judgment dated 07.12.2017, another applicationNo. 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 disposedof vide its order dated 15.12.2017 observing that since the impugnedorder is passed by the Special Judge, CBI, it would be appropriate forEthe petitioner to challenge that order by approaching the High Court.Subsequent to the order dated 15.12.2017, the petitioner-appellant fileda Writ Petition No. 62167 of 2017, where the Petitioner-appellant alsosought to challenge the vires of Section 88 as well as writ for Certiorariquashing the order dated 07.12.2017 of trial court. In the Writ Petition,following prayers have been made:-F

(a) Issue an appropriate writ, order or direction, declaring in theabove context, the use of word ‘may’ in Section 88 of Cr.P.C.as unconstitutional, manifestly arbitrary, unreasonable and ultravires of the fundamental rights guaranteed under Article 14and 21 of the Constitution of India or in the alternative to readGit down by expounding, deliberating and delineating its scopein the context, to save Section 88 from unconstitutionally onthe vice of Article 14 and 21 of the Constitution of India.

(b) Issue a writ of certiorari or any other appropriate writ, orderor direction, setting aside the impugned Order/s datedH

07.12.2017 passed by the Trial Court i.e. Special Judge forAnti-Corruption CBI cases at Ghaziabad, with consequentialrelief of setting the petitioner at liberty by permitting him tofurnish his Bonds under Section 88 of Cr.P.C. to the satisfactionof 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 mayalso be passed by this Hon’ble Court.”

8. The writ petition has been dismissed by Division Bench of theHigh Court vide its judgment and order dated 21.12.2017, against whichjudgment this appeal has been filed.

9. We have heard Shri Mukul Rohtagi, learned senior counselappearing for the appellant and Shri Maninder Singh, Additional SolicitorGeneral of India for the respondent.

10. Shri Mukul Rohtagi, learned senior counsel appearing for theappellant submits that appellant having not been arrested duringinvestigation when he appeared before the Special Judge, C.B.I., it wasobligatory on the part of the Court to have accepted the bail bond underSection 88 of the Cr.P.C. and released the appellant forthwith. It issubmitted that the Court of Special Judge committed error in rejectingthe application under Section 88. It is further submitted that bail applicationwas not filed by the appellant since all those, who appeared before theCourt 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 obligationon the Court to release on bond, those, who appeared on their ownvolition in the Court. He further submits that the High Court committederror in observing that petitioner has concealed material facts from thisCourt when he had filed S.L.P. (Criminal) No. 7749 of 2017. It is submittedthat all facts were mentioned in S.L.P. (Criminal) No. 7749 of 2017 andobservation of the High Court that any fact was concealed is incorrect.

11. Shri Maninder Singh, learned Additional Solicitor General ofIndia for the respondent refuting the submission of the appellant contendedthat 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. werealso initiated by the Special Judge. Hence, he was not entitled for A

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Aindulgence of being released on submission of bond under Section 88Cr.P.C. He further submits that the Court has discretionary power underSection 88 to release a person on accepting bond, which cannot be claimedas a matter of right by the accused, who has already been summonedand against whom non-bailable warrant has been issued. It is furthersubmitted that although the petitioner-appellant has filed variousBapplications under Section 482 Cr.P.C. as well as Special Leave Petitionsbefore this Court, but has so far not filed any bail application before theSpecial Judge, C.B.I. He submits that although liberty was taken by theappellant from this Court on 16.01.2017 when SLP (Crl.) No. 10190 of2017 was dismissed as well as on 24.11.2017 when SLP (Crl.) No. 7749Cof 2017 was disposed off to apply for regular bail before the Court butinspite of taking such liberty, no application for bail was filed by theappellant.

12. We have considered the submissions of the learned seniorcounsel for the parties and perused the records.

D13. The main issue which needs to be answered in the presentappeal is as to whether it was obligatory for the Court to release theappellant by accepting the bond under Section 88 Cr.P.C. on the groundthat he was not arrested during investigation or the Court has rightlyexercised its jurisdiction under Section 88 in rejecting the applicationEfiled by the appellant praying for release by accepting the bond underSection 88 Cr.P.C.

14. Section 88 Cr.P.C. is a provision which is contained in ChapterVI “Processes to Compel Appearance” of the Code of CriminalProcedure, 1973. Chapter VI is divided in four Sections – A.-Summons;FB.-Warrant of arrest; C.-Proclamation and Attachment and D.-Otherrules regarding processes. Section 88 provides as follows:-

88. Power to take bond for appearance. -When any personfor whose appearance or arrest the officer presiding in any Courtis empowered to issue a summons or warrant, is present in suchGCourt, such officer may require such person to execute a bond,with or without sureties, for his appearance in such Court, or anyother Court to which the case may be transferred for trial.

15. We need to first consider as to what was the import of thewords ‘may’ used in Section 88.

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16. Justice G.P. Singh in “Principles of Statutory Interpretation”,14[th] Edition, while considering the enabling words ‘may’ explained thefollowing principles of interpretation:- “(K) Enabling words, e.g., ‘may’, ‘it shall be lawful’, ‘shallhave power’. Power Coupled with duty Ordinarily, the words ‘May’ and ‘It shall be lawful’ are not wordsof compulsion. They are enabling words and they only confercapacity, power or authority and imply discretion. “They are bothused in a statute to indicate that something may be done whichprior to it could not be done”. The use of words ‘Shall havepower’ also connotes the same idea.”

17. Although, ordinary use of word ‘may’ imply discretion butwhen the word ‘may’ is coupled with duty on an authority or Court, ithas been given meaning of shall that is an obligation on an authority orCourt. Whether use of the word ‘may’ is coupled with duty is a question,which needs to be answered from the statutory scheme of a particularstatute. The Principles of Interpretation have been laid down by LordCairns in Julius Vs. Lord Bishop of Oxford, (1874-80) All ER Rep.43 where Lord Cairns enunciated Principles of Statutory Interpretationin the following words:- “There may be something in the nature of the thing empoweredto be done, something in the object for which it is to be done,something in the conditions under which it is to be done, somethingin the title of the person or persons for whose benefit the power isto be exercised, which may couple the power with a duty andmake it the duty of the person in whom the power is reposed toexercise the power when called upon to do so.

Where a power is deposited with a public officer for the purposeof being used for the benefit of persons specifically pointed outwith regard to whom a definition is supplied by the Legislature ofthe conditions upon which they are entitled to call for its exercise,that power ought to be exercised and the Court will require it tobe exercised.

The enabling words are construed as compulsory whenever theobject of the power is to effectuate a legal right”

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A18. Learned senior counsel for the appellant has referred tojudgments 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), this Court had occasion to consider the useof word ‘may’ in Rule 4(2) of the Uttar Pradesh Disciplinary ProceedingsB(Administrative Tribunal) Rules, 1947. In the above regard, in Paragraph8 following has been stated:-

“8. Rule 4(2) deals with the class of gazetted government servantsand gives them the right to make a request to the Governor thattheir cases should be referred to the Tribunal in respect of mattersspecified in clauses (a) to (d) of sub-rule (1). The question for ourdecision is whether like the word “may” in Rule 4(1) which confersthe 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 theword “may” generally does not mean “must” or “shall”. But it iswell settled that the word “may” is capable of meaning “must” or“shall” in the light of the context. It is also clear that where adiscretion is conferred upon a public authority coupled with anobligation, the word “may” which denotes discretion should beconstrued to mean a command. Sometimes, the legislature usesthe word “may” out of deference to the high status of the authorityon whom the power and the obligation are intended to be conferredand 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 servantsthe discretion had already been given to the Governor to refertheir cases to the Tribunal that the rule making authority wantedto make a special provision in respect of them as distinguishedfrom other government servants falling under Rule 4(1) and Rule4(2) has been prescribed, otherwise Rule 4(2) would be whollyredundant. In other words, the plain and unambiguous object ofenacting Rule 4(2) is to provide an option to the gazettedgovernment servants to request the Governor that their casesshould be tried by a tribunal and not otherwise. The rule-makingauthority presumably thought that having regard to the status of C

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the gazetted government servants, it would be legitimate to givesuch an option to them. Therefore, we feel no difficulty inaccepting the view taken by the High Court that Rule 4(2) imposesan obligation on the Governor to grant a request made by thegazetted government servant that his case should be referred tothe Tribunal under the Rules. Such a request was admittedly madeby the respondent and has not been granted. Therefore, we aresatisfied that the High Court was right in quashing the proceedingsproposed to be taken by the appellant against the respondentotherwise than by referring his case to the Tribunal under theRules.”

19. This Court held that use of the word ‘may’ in Rule 4(2) confersan obligation and gaven the right to the government servants to make arequest to the Governor. Thus, in the above case, the word ‘may’ wascoupled with duty, which was held to be obligatory.

20. In Ramji Missar & Anr. Vs. State of Bihar (supra), thisCourt again considered Sections 11(1) and 6(2) of Probation of OffendersAct, 1958. In Para 16, this Court laid down following:- “16. Though the word “may” might connote merely an enablingor premissive power in the sense of the usual phrase “it shall belawful”, it is also capable of being construed as referring to acompellable duty, particularly when it refers to a power conferredon a court or other judicial authority. As observed in Maxwell onStatutes:

“Statutes which authorise persons to do acts for the benefit ofothers, or, as it is sometimes said, for the public good or theadvancement of justice, have often given rise to controversy whenconferring the authority in terms simply enabling and not mandatory.In enacting that they ‘may’, or shall, if they think fit,’ or, ‘shallhave power,’ or that ‘it shall be lawful’ for them to do such acts, astatute appears to use the language of mere permission, but it hasbeen so often decided as to have become an axiom that in suchcases such expressions may have — to say the least — acompulsory force.”……………………

21. This Court noticed that in the 1958 Act, certain tests as aguidance have been laid down for exercise of discretion by the Court.The Court rejected the submission that there is unfettered discretion in AB

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Athe Appellate Court in exercising power under Section 11. The abovecase was also a case where discretion given to the Court to be exercisedunder certain guidelines and tests, which was a case of discretion coupledwith duty.

22. This Court in the case of State of Kerala & Ors. Vs. KandathBDistilleries, (2013) 6 SCC 573 came to consider the use of expression‘may’ in Kerala Abkari Act, 1902. The Court held that the expressionconferred discretionary power on the Commissioner and power is notcoupled with duty. Following observation has been made in paragraph29:-C“29.Section 14 uses the expression “Commissioner may”,“with the approval of the Government” so also Rule 4 usesthe expressions “Commissioner may”, “if he is satisfied” aftermaking such enquiries as he may consider necessary “licencemay be issued”. All those expressions used in Section 14 andRule 4 confer discretionary powers on the Commissioner asDwell as the State Government, not a discretionary powercoupled with duty....”

23. Section 88 of the Cr.P.C. does not confer any right on anyperson, who is present in a Court. Discretionary power given to theCourt is for the purpose and object of ensuring appearance of suchEperson in that Court or to any other Court into which the case may betransferred for trial. Discretion given under Section 88 to the Courtdoes not confer any right on a person, who is present in the Court ratherit is the power given to the Court to facilitate his appearance, whichclearly indicates that use of word ‘may’ is discretionary and it is for theCourt to exercise its discretion when situation so demands. It is furtherFrelevant to note that the word used in Section 88 “any person” has to begiven wide meaning, which may include persons, who are not evenaccused in a case and appeared as witnesses.

24. Learned counsel for the appellant has referred to twoGjudgments 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 incontext of Section 173 and 170 of Cr.P.C. The said case was not a casewhere issue which has fallen in the present case pertaining to Section 88Cr.P.C. was involved. The subsequent judgment of Delhi High Court inHSanjay Chaturvedi Vs. State, 132 (2006) Delhi Law Times 692 was also a case where earlier judgment of Delhi High Court in Court on Itsown Motion Vs. Central Bureau of Investigation (supra) was followed.The said case also does not in any manner adopted the interpretation ofSection 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 supportsthe submission raised by learned Additional Solicitor General that powerunder Section 88 Cr.P.C., the word ‘may’ used in Section 88 Cr.P.C. isnot mandatory and is a matter of judicial discretion. Paras 20, 21 and 22of 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, learnedShri Mukul Rohtagi, Sr. Advocate appearing for accused VinodGoenka, learned Shri Soli Sorabjee and learned Shri Ranjit Kumar,Sr. Advocates appearing for accused Gautam Doshi, learned ShriRajiv Nayar, Sr. Advocate appearing for accused Hari Nair andlearned Shri Neeraj Kishan Kaul, Sr. Advocate appearing foraccused Surendra Pipara, at the outset, have contended that theorder of learned Special Judge dated 20th April, 2011 rejectingthe bail of the petitioners is violative of the mandate of Section 88Cr.P.C. It is contended that admittedly the petitioners were neitherarrested during investigation nor they were produced in custodyalong with the charge sheet as envisaged under Section 170 Cr.P.C.Therefore, the trial court was supposed to release the petitionerson bail by seeking bonds with or without sureties in view of Section88 Cr.P.C. Thus, it is urged that on this count alone, the petitionersare entitled to bail.

21. The interpretation sought to be given by the petitioners ismisconceived and based upon incorrect reading of Section 88Cr.P.C., which is reproduced thus:

“88. Power to take bond for appearance.—When anyperson for whose appearance or arrest the officer presiding inany Court is empowered to issue a summons or warrant, ispresent in such court, such officer may require such person toexecute a bond, with or without sureties, for his appearance insuch court, or any other court to which the case may betransferred for trial”

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22. On reading of the above, it is obvious that Section 88 Cr.P.C.empowers the court to seek bond for appearance from any personpresent in the court in exercise of its judicial discretion. The Sectionalso provides that aforesaid power is not unrestricted and it canbe exercised only against such persons for whose appearance orarrest Bail Applications No.508/2011, 509/2011, 510/2011, 511/2011 & 512/2011 Page 21 of 34 the court is empowered to issuesummons or warrants. The words used in the Section are “mayrequire such person to execute a bond” and any person present inthe 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 thecourt. The word “any person” signifies that the power of the courtdefined under Section 88 Cr.P.C. is not accused specific only, butit can be exercised against other category of persons such as thewitness whose presence the court may deem necessary for thepurpose of inquiry or trial. Careful reading of Section 88 Cr.P.C.makes it evident that it is a general provision defining the powerof the court, but it does not provide how and in what manner thisdiscretionary power is to be exercised. Petitioners are accused ofhaving committed non-bailable offences. Therefore, their casefor bail falls within Section 437 of the Code of Criminal Procedurewhich is the specific provision dealing with grant of bail to anaccused in cases of non-bailable offences. Thus, on conjointreading of Section 88 and 437 Cr.P.C., it is obvious that Section88 Cr.P.C. is not an independent Section and it is subject to Section437 Cr.P.C. Therefore, I do not find merit in the contention thatorder of learned Special Judge refusing bail to the petitioners isillegal being violation of Section 88 Cr.P.C.”

26. Another judgment which is relevant in this context is judgmentof Patna High Court in Dr. Anand Deo Singh Vs. The State of Bihar& Ors., 2000(2) Patna Law Journal Reports 686. The Patna HighCourt 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 enablingprovision, which vests a discretion in the Magistrate to exercisepower under said Section asking the person to execute a bond forappearance only in bailable cases or in trivial cases and it cannotbe resorted to in a case of serious offences. Section 436 of the Code itself provides that bond may be asked for only in cases ofbailable offences.”

27. This Court had occasion to consider Section 91 of Cr.P.C.1898, which was akin to present Section 88 of 1973 Act, in MadhuLimaye & Anr. Vs. Ved Murti & Ors., (1970) 3 SCC 739, followingobservations were made in context of Section 91:- “…………….In fact Section 91 applies to a person who is presentin Court and is free because it speaks of his being bound over, toappear on another day before the Court. That shows that theperson must be a free agent whether to appear or not. If theperson is already under arrest and in custody, as were thepetitioners, their appearance depended not on their own violationbut on the violation of the person who had their custody. Thissection was therefore inappropriate and the ruling cited in supportof the case were wrongly decided as was held by the SpecialBench……………….”

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 Section65 of Prevention of Money Laundering Act. In the above context,following has been observed in Para 11:- “11. On the same principles, in absence of anything inconsistentin PMLA with section 88 of Cr.P.C., when a person voluntarilyappears before the Special Court for PMLA pursuant to issuanceof process vide summons or warrant, and offers submission ofbonds for further appearances before the Court, any considerationof his application for furnishing such bond, would be necessarilygoverned by section 88 of the Cr.P.C. read with section 65 ofPMLA. Section 88 of the Cr.P.C. reads as follows- “88. Power to take bond for appearance.—When any personfor whose appearance or arrest the officer presiding in anyCourt is empowered to issue a summons or warrant, is presentin such Court, such officer may require such person to executea bond, with or without sureties, for his appearance in suchCourt, or any other Court to which the case may be transferredfor trial.”

A

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A

This Section 88 (corresponding to section 91 of Cr.P.C., 1898)would not apply qua a person whose appearance is not on hisvolition, but is brought in custody by the authorities as held by theConstitution Bench of the Hon’ble Supreme Court in MadhuLimaye v. Ved Murti, AIR 1971 SC 2481 wherein it was observedthat- B

“18.......In fact Section 91 applies to a person who is presentin Court and is free because it speaks of his being bound over,to appear on another day before the Court. That shows thatthe person must be a free agent whether to appear or not. Ifthe person is already under arrest and in custody, as were theCpetitioners, 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 arrestedunder section 19 of PMLA during investigations and were notproduced in custody for taking cognizance, section 88 of Cr.P.C.Dshall apply upon appearance of the accused person on his ownvolition before the Trial Court to furnish bonds for furtherappearances.”

29. The present is not a case where accused was a free agentwhether to appear or not. He was already issued non-bailable warrantEof arrest as well as proceeding of Sections 82 and 83 Cr.P.C. had beeninitiated. In this view of the matter he was not entitled to the benefit ofSection 88.

30. In the Punjab & Haryana case, the High Court has relied onjudgment of this Court in Madhu Limaye Vs. Ved Murti (supra) andFheld that Section 88 shall be applicable since accused were not arrestedunder Section 19 of PMLA during investigation and were not taken intocustody for taking cognizance. What the Punjab & Haryana High Courtmissed, is that this Court in the same paragraph had observed “thatshows that the person must be a free agent whether to appear or not”.GWhen accused was issued warrant of arrest to appear in the Court andproceeding under Sections 82 and 83 Cr.P.C. has been initiated, he cannotbe held to be a free agent to appear or not to appear in the Court. Wethus are of the view that the Punjab & Haryana High Court has notcorrectly applied Section 88 in the aforesaid case.

H

31. We thus conclude that the word ‘may’ used in Section 88confers a discretion on the Court whether to accept a bond from anaccused from a person appearing in the Court or not. The both SpecialJudge, C.B.I. as well as the High Court has given cogent reasons for notexercising the power under Section 88 Cr.P.C. We do not find any infirmityin the view taken by the Special Judge, C.B.I. as well as the High Courtin coming to the conclusion that accused was not entitled to be releasedon acceptance of bond under Section 88 Cr.P.C. We thus do not find anyerror in the impugned judgment of the High Court.

32. Shri Mukul Rohtagi, learned senior counsel for the appellanthas placed reliance on recent judgment of this Court dated 06.02.2018 inDataram Singh Vs. State of Uttar Pradesh & Anr., Criminal AppealNo. 227 of 2018. Learned counsel for the appellant submits that thisCourt 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 beenelaborately and lucidly explained in a recent decision delivered inNikesh Tarachand Shah v. Union of India, 2017 (13) SCALE609 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 wayback in Nagendra v. King-Emperor, AIR 1924 Cal 476 that bailis not to be withheld as a punishment. Reference was also madeto Emperor v. Hutchinson, AIR 1931 All 356 wherein it wasobserved that grant of bail is the rule and refusal is the exception.The provision for bail is therefore age-old and the liberalinterpretation to the provision for bail is almost a century old, goingback to colonial days.

7. However, we should not be understood to mean that bail shouldbe granted in every case. The grant or refusal of bail is entirelywithin the discretion of the judge hearing the matter and thoughthat discretion is unfettered, it must be exercised judiciously andin a humane manner and compassionately. Also, conditions forthe grant of bail ought not to be so strict as to be incapable ofcompliance, thereby making the grant of bail illusory.”

33. In the facts of the aforesaid case, the Court held that the trialcourt as well as the High Court ought to have exercised the discretion in AB

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Agranting the bail to the appellant. This Court in above circumstances,granted the bail to the appellant of that case. There cannot be any disputeto the proposition as laid down by this Court with regard to grant orrefusal of the bail, which are well settled. The discretion to grant bailhas to be exercised judiciously and in a humane manner andcompassionately as has been laid down by this Court in the above case.B

34. Shri Mukul Rohtagi, learned senior counsel appearing for theappellant submits that since the appellant has made a request to set himon liberty by accepting the bond before the Special Judge, C.B.I. as wellmay release the appellant on bail. He further submits that appellant is aperson with 60% disability. He further submits that the loss which wasCalleged in the First Information Report is secured and this Court mayexercise its jurisdiction in granting the bail to the appellant.

35. There are two reasons due to which we are unable to acceptthe request of the appellant to consider the case of bail of the appellantin present proceeding. Firstly, this Court on two earlier occasions hadDgranted liberty to the appellant to make an application for bail before thetrial court, the appellant has not filed any application for bail before thetrial court and had insisted on releasing him on acceptance of bond underSection 88 Cr.P.C. Secondly, in the facts of this case, trial court is to firstconsider the prayer of grant of bail of the appellant. We, thus, are of theEview that as and when the appellant files a bail application, the sameshall be considered forthwith by trial court taking into consideration hisclaim of disability and other relevant grounds which are urged or may beurged by the appellant before it.

36. With these observations, the appeal is disposed of.

F

Ankit Gyan

Appeal disposed of.

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