LatestLaws.in A brief note on Section-88 CrPC: by Rakesh Kumar Singh
There are two types of litigants in general if we talk about criminal cases, one who can afford to create fantasy in the realm of legal procedure and the other, rest of the persons. Presently, we are considering the matter from the eyes of the persons who fall within the former class of litigants.
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The first rst and forem remost necessity of a person accused of any offence is securing a
discretionary liberty called bail from the court. If he is able to secure a bail, the trial hardly matters for him. Reason is not far to seek. Once he is on this discretionary liberty of bail, he may assume himself to be entitled to play all the tricks in & out of the book and one of those may be that he may choose not to appear for one reason or the other and may delay the matter through some legal eperts and e!en if courts take some ad!erse step, he may get through with the help of se!eral technical loop holes.
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#pe #peri rien ence ce has has show shown n that that unle unless ss ther theree is some some medi mediaa tria trial, l, the the perso persons ns of the the afore aforesa said id
class are hardly found in the police net during the in!estigation period and the specious premise normally pro$ected by the in!estigating agency is that power of arrest does not necessarily mean that the arrest is always mandatory. %o much so that a earned 'agistrate in (elhi apparently facing difficulty on this count had to send a reference to the (elhi )igh *ourt in!iting it to gi!e authoritati!e pronouncement on such type of attitude of the in!estigating agency. agency. The said reference r eference was apparently decided by the )igh *ourt holding that discretion of in!estigating agency regarding arrest or non arrest cannot be +uestioned by a 'agistrate. This situation will howe!er be the sub$ect matt matter er of some some othe otherr pape paperr. Pres Presen entl tly y, it may may be suff suffic icie ient nt to note note that that in such such case cases, s, the the in!estigating agency when files the chargesheet before the court, does not produce the accused before the court or forward the accused to the court. The court taking cogni-ance normally issues a summon for appearance. The person appears in the court and wants that he should be granted liberty liberty. hat he knows knows is that if he goes through the bail pro!ision, pro!ision, the court has to deal with the matter on the basis of merits pro$ected. It is at this stage that he chooses to create a fantasy and claims that the court may re+uire him to eecute a bond for appearance.
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0or 0or this this,, the the sma smart acc accuse used norm normal ally ly reli reliees upon %ec %ectio tion1 n11 of the the *ode ode of *rim *rimin inaal
Procedure, 34" which reads as 5 88. Power to take bond for appearance.- When any person for whose appearance or arrest arrest the officer presiding in any Court is empowered empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or
LatestLaws.in without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial 6.
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)on8ble )i )igh *o *ourt of of ( (eelhi in in Sanjay chandra vs CB 2".97.29 has considered the
scope of %ection11 *rP* and has come to the conclusion: 5he interpretation sought to be gi!en by the petitioners is misconcei!ed and based upon incorrect reading..........."n reading of the abo!e, it is ob!ious that #ection 88 Cr.P.C. empowers the court to seek bond for appearance from any person present present in the court in exercise exercise of its $udicial discretion. discretion. he #ection also pro!ides pro!ides that aforesaid power is not unrestricted and it can be exercised only against such persons for whose appearance or arrest arrest the court is empowered to issue summons or warrants. he words used in the #ection are %may require such person to execute a bond% and any person present in the court. he user of word %may% signifies that #ection 88 Cr.P.C. is not mandatory and it is a matter of $udicial discretion of the court. he word %any person% signifies that the power of the court defined under #ection 88 Cr.P.C. is not accused specific only, but it can be exercised against other category of persons such as the witness whose presence presence the court may deem necessary for the purpose of inquiry or trial. Careful reading of #ection 88 Cr.P.C. makes it e!ident that it is a general pro!ision defining the power of the court, but it does not pro!ide how and in what manner this discretionary power is to be exercised. exercised. Petitioners are accused of ha!ing committed non-bailable offences. herefore, their case for bail falls within #ection &'( of the Code of Criminal Procedure which is the specific pro!ision dealing with grant of bail to an accused in cases of non-bailable offences. hus, on con$oint reading of #ection 88 and &'( Cr.P.C., it is ob!ious that #ection 88 Cr.P.C. is not an independent #ection and it is sub$ect to #ection &'( Cr.P Cr.P.C. .C. herefore, herefore, ) do not find merit in the contention that order of learned #pecial *udge refusing bail to the petitioners is illegal being !iolation of #ection 88 Cr.P.C 6. Cr.P.C 6.
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The abo! abo!ee said $ud $udgm gmen entt wa wass chal alle len nge ged d be befo fore re )on< )on
A""ea! #o$-%&'8(%)& #o$-%&'8(%)&& & dated %*$& %*$&&$%)& &$%)&& & and same contention was raised therein by the accused persons. Though the court granted bail on factual position but specifically clarified that it was not epressing any opinion on the legal issues raised by the parties. Rele!ant obser!ation is 5 )n the !iew we ha!e taken, it may not be necessary to refer and discuss other issues can!assed by the learne learned d couns counsel el for the partie partiess and the case laws laws relied elied on in suppo support rt of their their respec especti! ti!ee contentions. We clarify that we ha!e not expressed any opinion regarding the other legal issues can!assed by learned counsel for the parties 6.
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It is not not as as if %ec %ecti tion on11 11 is a new new pro pro!i !isi sion on.. In *rP *rP* * 131 131,, it was was als also o a!ai a!aila labl blee in the the for form m
of %ection3. The pro!ision had come before the )on8ble %upreme *ourt and it had considered its scope. The seven judges bench of )on8ble %upreme *ourt in +adhu ,imaye s ed +urti =IR 34 %* 2/1 has held as 5 )n 5 )n fact section + applies to a person person who is present present in Court and is free free because it speaks of his being bound o!er, to appear on another day before the Court. hat shows that the person must be a free agent whether to appear or not. )f the person is already under arrest arrest and in custody, as were the petitioners, their appearance depended not on their own !olition, but on the !olition of the person who had their custody. his section was therefore inappropriate and the the ruli ruling ng cite cited d in supp suppor ortt of the the case case wer were wron wrongl glyy deci decide ded d as was was held held by the the #pec #pecia iall ench...........)t ench...........)t is not necessary to take a bond from a person who is already in detention and is-not released. he danger arises when the man is free and not when he is in custody. )t is to pre!ent his acting that the bond is taken or he is kept in custody till he gi!es the bond 6.
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hen hen a pers person on sho shoul uld d be deem deemed ed to to be in cust custod ody y has has been been the the sub sub$e $ect ct mat matte terr of se!e se!era rall
pronouncements. pronouncements. )owe!er, )owe!er, it has been accepted accepted that the $udgment $udgment rendered in #iranjan Singh vs
Prabhakar Rajaram Kharote =IR 319 %* 417 has been the locus classics on this point and is a binding precedent. This $udgment in its rele!ant portions read as 5 When is a person in custody, within the meaning of #ection &'+ CrPC/ When he is in duress either because he is held by the in!estigating agency or other police or allied authority or is under the control of the court ha!ing been remanded remanded by $udicial order, order, or ha!ing offered himself to the courts $urisdiction and submitted to its orders by physical presence. 0o lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coerci!e power is in custody for the purpose of #ection &'+. his word is of elastic semantics but its core meaning is that the law has taken control of the person. he equi!ocatory quibblings and hide-and-seek niceties sometimes heard in court that the police ha!e taken a man into informal custody but not arrested him, ha!e detained him for interrogation but not taken him into into form formal al cust custod odyy and and othe otherr like like term termin inol olog ogic ical al dubi dubiet etie iess are are unfa unfair ir e!as e!asio ions ns of the the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the #essions *udge and the $urisdiction to grant bail thus arose. Custody, Custody, in the context of #ection &'+, 1we are not, be it noted, dealing with anticipatory bail under #ection &'82 is physical control or at least physical presence of the accused in court coupled with submission to the $urisdiction and orders of the court. 3e can be in custody not merely when the police arrests him, produces him before a 4agistrate and gets a remand to $udicial or other custody. 3e can be stated to be in $udicial custody when he surrenders before the court and submits to its directions directions6. 6.
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hat hat becom becomes es clear clear from from the afores aforesaid aid $udgm $udgment entss is that that %ecti %ection on11 11 does does not not co!er co!er a perso person n
who is accused of an offence. %uch person has to be go!erned by the pro!isions related to bail as a!ailable in *rP*. If the offenes is bailable, the accused is entitled to bail as a matter of right by !irtue of %ection/"; which is mandatory in nature. If the offence is nonbailable, such accused cannot claim bail as a matter of right as the go!erning %ection/"4 is discretionary and has se!eral other limitations.
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It can can safel safely y be said said that that e!en e!en if an In!est In!estig igat atin ing g Offic Officer er choo choose sess not to arres arrestt any pers person on
during the course of in!estigation for any reason and files a chargesheet in court showing the accused as nonarrested, the *ourt is bound to follow any of the course suggested by %ection29/ *rP* and it may issue summon or warrant, as the case may be, for securing appearance of the accused before it. =ccused cannot apply for utili-ation of %ection11 *rP*. If accused has been summoned for a nonbailable case, he has to apply for bail in terms of %ection/"4 *rP* and the *ourt *ourt has has to decid decidee the applic applicati ation on on merits merits.. In such such consid considera eratio tion, n, nonar nonarres restt during during the in!estigation may be taken as a factor in fa!our of the accused but it need not to be a sole factor. I ha!e already, in some other paper, shown as to why the contrary decision of )on8ble (elhi )igh *our *ourtt in Court .n ts ./n +otion v$ Centra! Bureau of nvestigation 93 >299"? (T /3/ mandating the bail of such notsoarrested accused, does not remain a binding precedent. @eed therefore is not felt to again rediscuss the same point in this paper also.
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