Showing posts with label S 88 crpc. Show all posts
Showing posts with label S 88 crpc. Show all posts

Sunday, 30 September 2018

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
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Friday, 29 April 2016

Whether accused can be granted exemption from appearance in court even if he has not furnished bail bond?

As far as the provisions of Section 88 Cr.P.C. are concerned, as quoted above, such provisions can be availed only in case the person for whose appearance or arrest the summon or warrant has been issued to present in such Court. Section 88 Cr.P.C. also does not speak to exempt the accused without executing the bond with or without sureties for his appearance in the Court. In view of the provisions of Section 90 Cr.P.C., this provisions is also applicable only to every summon and every warrant of arrest issued under this Code. Admittedly, the petitioner has not yet appeared personally before the Court. Therefore, he cannot get the benefit of Section 88Cr.P.C


Allahabad High Court
Arvind Kejriwal vs The State Of U.P And Ors. on 27 August, 2015
Bench: Aditya Nath Mittal
Citation;2016 CRLJ128
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