The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated. Register call back for upcoming GS Foundation Course - click here! While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. v. Emperor, AIR 1945 Pat. The SDJM would do well to dispose it of on the day it is filed.
It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and. on 29 September, 2020, Boby @ Sushil vs State Of U.P. Considering the importance of the matter, a learned single Judge referred the applications to a Full Bench, which by its judgment dated September, 13, 1977 dismissed them, after summarising, what according to it is the true legal position, of s. 438 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) thus: (1) The power under Section 438, Criminal Procedure Code, is of an extra-ordinary character and must be exercised sparingly in exceptional cases only. HELD : 1. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts.
other cause.
In Dhananjoy Chatterjee v. State of W.B. She was, therefore, a vulnerable girl. whereunder an accused, being apprehensive of his arrest in connection with cognizable, non-bailable offence was given an opportunity to seek a protection by way of grant of bail without surrendering before the court by way of asking for regular bail in case, succeeds to place justifiable grounds. [197-C-D], 4.1. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. Life and liberty are the cherished attributes of every individual. Moreover, merely because the High Court had a different view on same set of material, which had been taken into consideration by the Sessions Judge, in our view, was not a valid ground to label the order passed by the Sessions Judge as perverse. The incident in question occurred on 14th January, 2002.
The protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period. In Gurbaksh Singh Sibbia (supra), the Constitution Bench was called upon to consider correctness or otherwise of principles laid down by the Full Bench of High Court of Punjab & Haryana in Gurbaksh Singh Sibbia Vs. State of Punjab. 6. As culminate from different judicial pronouncement having influence of constitution Bench, Sibbia case, on the issue of grant of anticipatory bail, is to survive till conclusion of trial and that being so, it cannot be constrained with time framing.
Simultaneously, the court has been directed to adjudicate upon considering whether there happens to be misuse of privilege or not. It goes without saying that nothing said by the High Court or by us hereinabove shall be construed as expression of any opinion on the merits of the case. Thereafter the deceased did not return home.
3.2. Applicant’s possibility of fleeing from justice.
Context: A constitution bench of the Supreme Court has ruled that an anticipatory bail cannot be limited to a fixed time period and can continue till the end of the trial. (7) The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised; and. Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438. He tried to douse the fire.
The same issue has come up for consideration in Bishundeo Sahu & Ors. As a matter of fact, Mr. Naphade, learned senior counsel representing the State, stated that after grant of anticipatory bail to the appellants, no investigation in the case has been conducted. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence.
The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail; this is contrary to the basic intention and spirit of Section 438 CrPC.
[194-F; 197-A-B] Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR (1996) SC 1042 and Niranjan Singh and Anr. [199-A-B], 7.
The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. State of NCT of Delhi (2020) case delivered a significant verdict, ruling that no time limit can be set while granting anticipatory Bail and it can continue even until the end of the trial.
The ad-interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage.
The distinction between an ordinary order of bail and an order under Section 438 of the Code is that whereas the former is granted after arrest, and therefore means release from custody of the Police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.
In the latter situation, adequate data is available to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437. 438 of the Code of Criminal Procedure, 1973, lays down the law on anticipatory bail. The appeals were heard together, the reference was accepted but the appeal filed by the accused was dismissed.
[415 G-H, 416 A-C] State v. Captain Jagjit Singh, [1962] 3 S.C.R. She also gave information to the police on 15th January, 2002 regarding missing of her daughter. Previous cases against the applicant including any previous convictions or cases of a cognizable offence. In fact, anticipatory bail is a misnomer. At about 6.40 p.m., her statement was recorded by the Executive Magistrate wherein she stated that she and her son caught fire when she was pouring kerosene oil in the lamp which accidentally fell down; the oil got spilled over and both of them got burnt. The Apex Court in Salauddin case (1996) 1 SCC 667 held that anticipatory bail should be granted only for a limited period and on the expiry of that duration it should be left to the regular court to deal with the matter is not the correct view.
[55H], 2.
The provision of anticipatory bail under Section 438 was introduced when CrPC was amended in 1973. Uttar Pradesh PCS - Syllabus, Test Series & Notes - Click Here, Anticipatory Bail became part of the CrPC in 1973 after the. The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial.
When Parliament has not thought it appropriate to curtail the rights of the citizens, it would be not appropriate for the SC to curtail powers granted to courts with regard to anticipatory bail.
The power conferred by section 438 is of an "extra ordinary" character only in the sense that it is not ordinarily resorted to like the power conferred by sections 437 and 439. The Normal conditions under Section 437(3) read with Section 438(2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event) etc.
(a) Section 438 of the Cede is an extraordinary remedy and should be resorted to only in special cases. The High Court has also noted that the offences complained of, being of serious nature, there was no ground to grant anticipatory bail to the appellants.
Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions.
It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence.
While cautioning against imposition of unnecessary restrictions on the scope of the Section, because, in its opinion, over generous infusion of constraints and conditions, which were not to be found in Section 438 of the Code, could make the provision constitutionally vulnerable, since the right of personal freedom, as enshrined in Article 21 of the Constitution, cannot be made to depend on compliance with unreasonable restrictions, the Constitution Bench laid down the following guidelines, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail: i) Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character.
(a) While interpreting statutes, the Court must infer repeal of a former statute by the latter only if it causes inconvenience or where it is couched in negative terms.
p. 14 @ 26; referred to.
Supreme Court: In a significant ruling, a 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat, JJ has unanimously ruled that the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time.