Whether court is bound to release accused on bond as per S 88 of CRPC on his appearance before court?

The interpretation sought to be given by the Petitioners is misconceived and based upon incorrect reading of Section 88 Code of Criminal Procedure, 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 obvious that Section 88 Code of Criminal Procedure 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 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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 non-bailable 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 Code of Criminal Procedure, it is obvious that Section 88 Code of Criminal Procedure is not an independent Section and it is subject to Section 437 Code of Criminal Procedure 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 Code of Criminal Procedure.

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 Special Judge, C.B.I. as well as the High Court has given cogent reasons for not exercising the power Under Section 88 Code of Criminal Procedure 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 Code of Criminal Procedure We thus do not find any error in the impugned judgment of the High Court.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 321 of 2018 (Arising Out of SLP (Crl.) Diary No. 1445 of 2018)

Decided On: 23.02.2018

 Pankaj Jain Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation:(2018) 5 SCC 743

Print Page

Whether bail granted U/S 167 of CRPC can be cancelled U/S 437(5) of CRPC?

     The Apex Court in Bashir v. State of Haryana [AIR
1978 SC 55] held that the bail granted under Section 167(2) of
the Code has the same incidents           as the bail granted under
Chapter 33.
     Section 437 comes under Chapter 33 of the Code.

Therefore, once the bail is granted under the proviso to Section

167 (2) of the Code, it has the same incidents as the bail granted

under sub-section (1) or sub-section (2) of Section 437 of the

Code.       Consequently, the bail granted under Section 167 (2) of

the Code can be cancelled invoking the provisions under Section

437 (5) of the Code.


  
     IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT:

        MR. JUSTICE B.SUDHEENDRA KUMAR

       11TH DAY OF NOVEMBER 2015/

              Crl.Rev.Pet.No. 1270 of 2015 

      MAHESH K alias BATTAMPARA MAHESH, 
Vs

           THE STATION HOUSE OFFICER,
            KASARAGOD POLICE STATION
           
     Citation;2016 ALLMR(CRI) JOURNAL165

Print Page