In the Matter of: Bonneswar Dutta and Others

This is an application u/s 438 of the Code of Criminal Procedure filed in the names of the applicants, but affirmed by a tadbirkar. It is stated in the petition that he is only conversant with the facts and circumstances of the case.

On the question of maintainability of the application u/s 438 of the Code of Criminal Procedure affirmed by a tadbirkar, we heard the matter and we requested Mr. Balal Chandra Roy, a Senior Advocate of this Court to assist the Court as an Amtcus Curie. The learned Advocate Mr. Milan Kumar Mukherjee also Intervened and made his submission and ultimately Mr. Roy argued the matter with various case laws. Mr. Kazl Safiullah, learned Public Prosecutter also made his submission in this connection.

Section 438(1) of the Code of Criminal Procedure provides as hereunder:

"...When any person has reasons to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or Court of Sessions for a direction under this section that in the event of such arrest, he shall be released on bail, and that court may, after taking into consideration pass necessary order as provided in said section..."

Incidentally, the question of making an application in respect of a case where the accused person is arrested or detained as provided u/s 437 of the Code of Criminal Procedure, there is no expressed provision for making any formal application for bail and it is well-settled that is such a case when a person in custody, such a prayer for ball can be made by a lawyer or the accused person orally or otherwise and that u/s 437 of the Code the Court is conferred with power to release the accused on bail with certain conditions and restrictions.

Similarly, u/s 439(1) of the Code special power has been conferred upon the High Court to grant ball after Imposing the conditions and restrictions for such bail and there is no express condition for applying for a ball.

Is this connection. It appears that it is a long standing practice is this Court for getting an application u/s 438 of the Code which is popularly known as ''Anticipatory Bail'' affirmed by a tadbirkar who might or might not have any connection with the case, but it appears that he plays a very Important role is the matter of filing such application for anticipatory ball through the lawyer.

The question which calls for consideration by us as to whether the expression ''he may apply to the High Court or the Court of Sessions'' Includes a stranger or tadbirkar or a middle-man and/or a tout.

On behalf of the applicants a stand was sought to be taken that if the applicant for Anticipatory Ball is Insisted upon filing an affidavit, is that event that would amount to violation of the provisions section 4(2) of the Oaths Act, 1969 which provides as hereunder:

"......Nothing is this section shall render it lawful to administer, is a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official Interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties".

The question is also whether affirming an affidavit for filing an application u/s 438 of the Code amounts to testimonial compulsion which is provided is Article 20(3) of the Constitution of India.

Is the case of M.P. Sharma and Others Vs. Satish Chandra, District Magistrate, Delhi and Others, the Supreme Court inter alia held as hereunder:

"......Indeed every positive volitional act which evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection is respect of the evidence so produce is confined to what transpires at the trial is the Court room.

The phrase used is Article 20(3) is ''to be a witness'' and not to ''appear as a witness''. It fallows that the protection afforded to an accused is so far as it is related to the phrase ''to be a witness'' is not merely is respect of testimonial compulsion is the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which is the normal course may result is prosecution. Whether it is available to other persons is other situations does not call for decision this case.

The guarantee under Article 20(3) would be available is the present cases to these petitioners against whom a First Information Report has been recorded as accused therein. It would extend to any compulsory process for ''production'' of evidentiary documents which are reasonably likely to support a prosecution against them."

A reference was also made to the decision of the Supreme Court is thep1 case of Directorate of Enforcement v. Dipak Mahajan, reported is AIR 1994 SC 1795 wherein the Supreme Court had occasion to consider is details and held Inter alia as follows :

"...... A through and careful study of all the provisions of the Code manifestly discloses that the word ''accused'' is the Code denotes different meanings according to the context is which it is deployed is that sometimes. The said word is employed to denote a person arrested, sometimes a person against whom there is an accusation, but who is yet not put on trial and sometimes to denote a person on trial and so on"

Is other words, the Supreme Court is that case had Indicated that the word ''accused'' cannot have any definite connotation and cannot be defined is a straight jacket formula and this expression has a wider meaning

So far as the case before us is concerned, the question is whether the applicant who Intends to apply an anticipatory ball u/s 438 of the Code affirms an affidavit, amount to testimonial compulsion under Article 20(3) of the Constitution of India or it offends section 4(2) of the Oaths Act.

Is the case of Laxmipat Choraria and Others Vs. State of Maharashtra, the Supreme Court considered the expression ''accused'' used is the Oaths Act and held as hereunder:

"... Expression ''criminal proceeding'' is the exclusionary clause of section 5 of the Indian Oaths Act cannot be used to widen the meaning of the word ''accused''. The same expression is used is the proviso to section 132 of the Indian Evidence Act and there it means a criminal trial not investigation".

The most Important question that we have to bear is mind that persons applying for an Anticipatory Ball must have a reason to believe that he may be arrested on accusation of having committed a non-bailable offence. The expression ''reason to believe* also occurs is section 34 of the old Income Tax Act of 1922 and now is section 147 of the Income Tax Act of 1961 ''wherein the Income Tax Officer is conferred jurisdiction u/s 34 of the old Income Tax Act to Issue notice is respect of re assessments beyond the period of four years, but within a period of eight years, from the end of the relevant year the Income Tax Officer must have reasons to believe that Income, profits or gains chargeable to income tax have been under-assessed and he must have also reason to believe that such ''under assessment'' has occurred by reason of either (I) omission or failure on the part of the assessee to make a return of his Income u/s 22 or (II) omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment for that year. Both these conditions are precedent. This question was considered by the Supreme Court is the case of Calcutta Discount Company Limited Vs. Income Tax Officer, Companies District, I and Another, . Is the case the Supreme Court further held inter alia as hereunder:

"...Under section 34 both the conditions (i) Income Tax Officer having reason to believe that there has been under-assessment; and (11) his having reasons to believe that such under-assessment has resulted from non-disclosure of material facts, must co-exist before the Income Tax Officer has Jurisdiction to start proceedings after expiry of four years. Is the proceedings under Article 226 of the Constitution the High Court can investigate the existence of one of these conditions, viz. that the Income Tax Officer has reasons to believe that under-assessment has resulted from non-disclosure of material facts."

In the case of Rohtas Industries Limited v. S.D, Agaruial, reported is AIR 1960 SC 707 the Supreme Court considered this expression and held that ''If it is established that there was no material upon which the authorities could form required opinion, the Court may infer that the authority did not apply its mind to the relevant facts. Similar view was taken by the Supreme Court is the case of The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, where the meaning of the expression ''reason to believe'' was considered.

Of course, while consideration the application for anticipatory bail, the court does not sit is appeal over the materials or the basis of which the applicant had a bonaflde reasons to believe but the existence of the reasons of belief is a matter which is a condition precedent for exercising Jurisdiction u/s 438 of the Code and that the applicant who must have reason to believe, he may be arrested on an accusation or having committed a non-bailable offence and there cannot exists any expression of reason to believe unless there are some materials is the possession of the applicant to show or suggest that he has a bona fide reason to take such view and that Judging from this angle it is the applicant who has reasons to believe may come to the court as provided is section 438 of the Code and file an application. Is such circumstances it appears to us that whether he has reason to believe or not is a matter for him to allege and power could not be delegated to a tadbirkar and who cannot file an application affirming is affidavit similarly by saying that he is conversant to the facts of the case.

Is considering the provisions of section 438 of the Code of Criminal Procedure, the Court cannot ignore the expression he may apply to the Court''. Is construing the statute, the court is bound to give effect to each and every words used is the statute. The expression he may apply ''could not be construed as'' may on application by or on behalf of person or ''the expression'' he cannot mean that he Includes a stranger or a tadbirkar or a tout or a middleman. Every word of the statute must be given its normal and literal meaning. The expression, is our view, he by any stretch of Imagination cannot be allowed to include any other person excepting as provided under the CPC wherein the applicant includes applicant''s holder of power of attorney or when he appoints an agent as provided under the law when he is unable to come to the court. If we have to hold that expression ''He'' Includes tadbirkar and others, is that event we have to construe the words that he may affirm an affidavit and file an application for anticipatory ball on behalf of the person to whom he has reasons to believe that he may be arrested on accusation of non-bailable offence. Is our view, the expression ''he'' could not Include and mean a stranger or tadbirkar or middleman. There may be cases where person may be old an disabled and cannot undertake a long journey to affirm an affidavit. Is such cases, he may authorise one of his relation or friend and who may be briefed by him, but is each and every cases the said principle cannot apply and the applicant has to file the application for anticipatory ball by swearing an affidavit himself. Section 437 of the Code of Criminal Procedure does not contemplate any written application and it may be made by an oral application. This view was taken by the Supreme Court is the case of R.K. Nabachandra Singh v. Manipur Admn. and ors reported is AIR 1964 Man 39 and the position has been correctly high-lighted. Section 19(xvii) of the Court Fees Act. 1870 provides that an application for bail has to be signed by an Advocate or by the prisoner is custody or other person is duress or under restraint of any court or officer. So the legislature has taken care of such a situation when a person is is custody.

Provisions of Oaths Act do not and cannot apply is case of filing an application u/s 438 of the Code. The Oaths Act applies for giving evidence before any court Including a criminal court which has been explained by the Supreme Court is Laxmipat Choraria''s case (supra). Section 4(2) of the Oaths Act, 1969 provides that nothing is this section shall render it lawful to administer, is a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties.

Is Black''s Law Dictionary ''Lawful'' means legal, warranted or authorised by the law; having the qualifications prescribed by law; not contrary to nor forbidden by the law. The Oaths Act is not applicable is case of filing an affidavit is support of an application for Anticipatory Ball. Secondly, the question of testimonial compulsion under Article 20(3) of the Constitution does not and cannot arise at all as it is well settled by decision of the Supreme Court is the case of Chhotan Prasad Singh and Others Vs. Hari Dusadh and Others, and is Sudha Devi Vs. M.P. Narayanan and Others, that an affidavit is not an evidence and accordingly it cannot be used as an evidence is the proceeding. Further when the Parliament is its wisdom has provided that is order to file an application u/s 438 of the Code the applicant has to apply himself and the court cannot ignore such expression as the Parliament Intended that such an application has to be filed by the applicant is order to avail of his remedy as he is the person who can only say before the court that he has reasons to believe that he may be arrested. If a contrary view is taken and if it is held that a middleman or a tadblrkar can affirm an affidavit to an application for Anticipatory Bail, is that event it would result is a counter mischief which would be contrary to the spirit and object of the Act. Belief must be of the applicant seeking for an anticipatory bail. It is well settled principle that when a counter mischief would arise if remedy provided by the Act were construed widely, the court may avoid or at least reduce it by limiting remedy.

Paragraph 138 of Francis Bennion on Statutory Interpretation provides that ''Parliament Intends that the enactment shall remedy a particular mischief. It is presumed therefore that Parliament Intends the Court, is construing the enactment, to endeavour to apply the remedy provided by it is such a way as to suppress that mischief.

Paragraph 141 of that Book provides that the court seeks to avoid a construction" that produces an absurd inappropriate, unfitting or unreasonable result.

Paragraph 154 of that Book provides that "where the application of an enactment yields an adverse result (that is one detrimental to the subject or the state), the Interpretative factors may on balance Indicate that the court should curtail Its application. This is known as strict construction.

There could not be any restriction on any persons right to move the court as right to Judicial review is one of the basic structure of the Constitution and even if a man is accused of an offence excepting that he may be arrested and may be punished that does not show that all of his rights are suspended. On the contrary all of his rights remain Intact and as it is.

Is our view, if the system of tadbtrkar filing application u/s 438 of the Code of Criminal Procedure is allowed to continue, that would be encouraging a system contrary to law and that would encourage toutism and middlemanship is the legal system and this system ts bound to cause destruction to the present Judicial system. If middlemen have no stake excepting that they are doing this for wrongful gain and the possibility of such making wrongful gain is there and this is also admitted by the members of the Bar before this Court that the lawyers when moving an anticipatory ball could not get any instruction for the applicant nor could they see the face of the applicant. There may be cases where the applicant may stay is a foreign country or is remote places of the country hiding himself and mere sending a Vokalatnama and merely on the basjs of Vokalatname sent by some means the middleman and/or tadblrkars, who are nothing but touts, could not be allowed to function and it does not require the exercise of any skill and/or research that these persons are polluting the system.

After hearing Mr. Balal Chandra Roy, Mr. Milan Kumar Mukherjee and Mr. Kazi Saflullah, learned Public Prosecutor and other learned Advocates and after considering the various case laws and the provisions of Article 20(3) of the Constitution of India and the provisions of the Oaths Act and the Criminal Procedure Code we are clearly of the view that there is no bar for the applicants to affirm an affidavit for filing an application u/s 438 of the Code of Criminal Procedure and that mere affirmation of an affidavit is support of the application does not amount to any testimonial compulsion and that the same also does not come within the purview of the provisions of section 4(e) of the Oaths Act which is only confined to criminal proceedings: or is other words is course of trial and not is course of the Investigation. Is that view of the matter the tadblrkar or an agent cannot affirm an affidavit is an application for Anticipatory Bail and is each and every case the applicant has to affirm it either before the Oath Commissioner of this Court or before any Magistrate who is competent to administer an oath and is case of genuine difficulty the same could be affirmed by an agent duly authorised by the applicant is accordance with law as provided is the Cfvll Procedure Code. We also hold that this Court and no other Court is this State can entertain an application for Anticipatory Ball if it is affirmed by a mere tadblrkar and not such application can be entertained unless it is supported by an affidavit by the applicant or by his duly authorised agent is accordance with law and not by the tadblrkar or a middleman. Since this practice, which is our view, is contrary to law is continuing for a long time, we do not propose to reject such applications which are is the list and pending before this Court and that those cases can be taken up only after a supporting affidavit is affirmed by the applicant or by the persons who are duly authorised by the applicant is accordance with law within two weeks from today.

Let xerox-copies of this order, counter-signed by the Assistant Registrar (Court) be given to the learned Advocates appearing is this case on the usual undertaking.

Application Rejected