ARNAB BAIL __ REWRITING THE BAIL JURISPRUDENCE
ARNAB BAIL ORDER: RE WRITING THE BAIL JURISPRUDENCE
Shubham Budhiraja[1]
1. POWER
OF STATE GOVT. TO ORDER RE-INVESTIGATE
2. MAGISTRATE
NOD FOR RE-INVESTIGATE
3. CONCEPT
OF BAIL IN HABEAS CORPUS PETITION
4. RELEVANT
DATE TO DECIDE ILLEGALITY OF DETENTION IN HABEAS CORPUS
The A summary report filed to the
Magistrate where case is re-Investigated on directions of superior and accused
is arrested for this purpose. The Bail application u/s 437 filed but withdrawn.
There is no challenge made to 14 days remand order passed by magistrate also.
They claiming bail under Habeas corpus petition under Article 226 r/w Section
482 to quash the FIR + Bail because it was illegal custody. The alternative
remedy under Section 439 already pending and it is a pre-trial stage where merit
cannot be looked into. It is prayed that Re-Investigate was not legal and
therefore the arrest also illegal and this is the reason for pressing habeas
corpus instead of bail.
Observations
Ajay Kumar Parmar Vs. State of Rajasthan the Hon’ble Supreme
Court has held that when the Magistrate decided not to take cognizance of the
case and to drop the proceeding against accused it is mandatory to hear
complainant or informant by issuing him notice
Relevant date to determine if detention was legal
In Sanjay Dutt v. State through CBI, Bombay (II) 10 wherein it has
been opined thus: “48. … It is settled
by Constitution Bench decisions that a petition seeking the writ of habeas
corpus on the ground of absence of a valid order of remand or detention of the
accused, has to be dismissed, if on the date of return of the rule, the custody
or detention is on the basis of a valid order.”
Interim Bail under Article 226/ 482
In State of Telangana vs. Habib Abdullah Jeelani & others,
their Lordships have observed that the Courts have to ensure such a power
under Article 226 of the Constitution of India is not to be exercised liberally
so as to convert it into section 438 of Cr.P.C. proceedings
The legislature has provided
specific remedy under Section 439 Cr.P.C. for applying for regular bail. Having
regard to the alternate and efficacious remedy available to the petitioner
under section 439 of the Code of Criminal Procedure, this Court has to exercise
judicial restraint while entertaining application in the nature of seeking
regular bail in a petition filed under Article 226 of the Constitution of India
read with section 482 of Code of Criminal Procedure.
A Summary report &Power of Re-Investigate
RULE 219 (3) OF BOMBAY POLICE MANUAL - “A’ True, undetected (where
there is no clue whatsoever about the culprits or property or where the accused
in known but there is no evidence to justify his being sent up to the
Magistrate (for trial), “B” Maliciously false and “C” Neither true nor false,
e.g., due to mistake of fact or being of a civil nature. Before carrying out
the said investigation, the Magistrate was intimated about the further
investigation. Thereafter, even the statements are recorded under section 164
of the Code of Criminal Procedure after obtaining permission from Chief
Judicial Magistrate. In our opinion, the further investigation cannot be
termed as illegal and without seeking permission of the Magistrate. The same is
in consonance with the power conferred by section 173 (8) of Code of Criminal
Procedure
Vinubhai Haribhai Malaviya & another vs. State of Gujarat, To
say that a fair and just investigation would lead to the conclusion that the
police retain the power, subject, of course, to the Magistrate’s nod under
Section 173(8) to further investigate an offence till charges are framed, but
that the supervisory jurisdiction of the Magistrate suddenly ceases midway
through the pre-trial proceedings, would amount to a travesty of justice, as
certain cases may cry out for further investigation so that an innocent person
is not wrongly arraigned as an accused or that a prima facie guilty person is
not so left out. There is no warrant
for such a narrow and restrictive view of the powers of the Magistrate,
particularly when such powers are traceable to Section 156(3) read with
Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been
noticed hereinabove, and would be available at all stages of the progress of a
criminal case before the trial actually commences. It would also be in the
interest of justice that this power be exercised suo motu by the Magistrate
himself, depending on the facts of each case. Whether further investigation should or should not be ordered is
within the discretion of the learned Magistrate who will exercise such
discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to
light which would lead to inculpating or exculpating certain persons, arriving
at the truth and doing substantial justice in a criminal case are more
important than avoiding further delay being caused in concluding the criminal
proceeding. The Power of the Court to order further
investigation is different from the State’s power to order further
investigation, depending upon the nature of summary i.e., “A”, “B” or
“C”. Merely because the Magistrate has accepted the “A” summary submitted by
the Investigating Officer, that would not mean and preclude the concerned
Investigating Officer to invoke the provisions of section 173(8) of Code of
Criminal Procedure to commence further investigation after giving intimation to
the jurisdictional Magistrate
CONCLUSION
The petition and application for
interim protection proceeds on the premise that the petitioner is illegally
detained. However, on the date of
filing the petition and the application, the applicant – petitioner was in
judicial custody as it is averred by the petitioner himself .
The petitioner has an alternate
and efficacious remedy under section 439 of the Code of Criminal Procedure to
apply for regular bail. Thus, Interim
relief of bail refused as the detention was legal and there is alternative
remedy available.
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