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withdrawn on 16.01.2017 with liberty to apply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.
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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
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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.
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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
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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’
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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.
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.
