Bombay HC: Under which circumstances the offence under The Essential commodities Act will be non bailable?

The case debated on whether the offences under the Essential Commodities Act were bailable - It was held that the offences were made 'cognizable' by the amendment of 1974, Section 10-A but by the amendment of 1981, the offences were made 'non bailable' initially for the five years but finally for fifteen years - As that period had been lapsed, the position would revert back to the offences being cognizable only - Further, since the charges against the petitioners were framed under Section 7(1)(a)(ii) of the Act , providing for seven years of Rigorous Imprisonment, the same would render the offence cognizable and non bailable.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Writ Petition No. 302 of 1999

Decided On: 26.08.1999

Purthviraj Chandrakant Shinde and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

V.K. Barde and B.B. Vagyani, JJ.

Author: V.K. Barde, J.

Citation:  MANU/MH/0606/2000.

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Whether the court can refuse to release juvenile on bail on the ground that offence is non bailable?

 A plain reading of Section 12(1) of the Act reveals

that, any person, who is apparently a child, shall be

entitled to be released on bail with or without surety or

placed under the supervision of a probation officer or under

the care of any fit person. The distinction between bailable

or non-bailable offence has been done away with in respect

of a juvenile. In other words, every juvenile is entitled to be

released on bail except in circumstances where his/her

release will bring him/her into association with any known

criminal or expose him/her to moral, physical or

psychological danger or that his release would defeat the

ends of justice. As per the Section 2 (12) of the Act, ‘child’

means a person who has not completed eighteen years of

age.” {Para 7}

8. Admittedly, the revisionist was about 17 years of

age at the time of incident. From the perusal of the FIR,

the revisionist was driving the offending vehicle at the

relevant point of time; it is a matter of evidence whether the

matter falls within the definition of Section 304A IPC or

Section 304 IPC. As per Section 12 of the Act, the bail can

be refused if there appears reasonable ground for believing

that the release is likely to bring that person into

association with any known criminal. The word ‘known’

has not been used by the Parliament without purpose. By

use of the word ‘known’, the Parliament requires that the

Court must know the full particulars of the criminal with

whom the delinquent is likely to come into association. In

the case in hand, there is no such evidence on record

regarding the same; both the impugned orders are silent

about it; the bail of the delinquent was rejected simply on

the ground that the offence is heinous in nature while

Section 12 of the Act is silent about it.

9. In such view of the matter, this Court has no

hesitation in holding that the Courts below had erred in

law in not releasing the juvenile on bail.

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Revision No.226 of 2021

Ayaan Ali  Vs The State of Uttarakhand 

Coram: Hon’ble R.C. Khulbe, J.

Dated: 16.02.2022

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Whether it is permissible for court to grant blanket order of anticipatory bail?

 We have said that there is one proposition formulated by the High Court with which we are inclined to agree. That is preposition No. (2). We agree that a 'blanket order' of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, requires the applicant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue Under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever." That is what is meant by a 'blanket order' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had. The rationale of a direction Under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section.; But specific events; and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section.

46. Apart from the fact that the very language of the statute compels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction Under Section 438(1) is sought, must be clear and specific, not vague and general. It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided.

47. A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a. vacuum.

IN THE SUPREME COURT OF INDIA

Decided On: 09.04.1980

 Gurbaksh Singh Sibbia Vs. State of Punjab

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Whether it is Permissible To Re-Arrest An Accused Who Is In Bail When Police Added A Non-Bailable Offence?

By order dated 02.06.2016, the petitioners were granted bail
for offence punishable under section 509 read with section 34 of
the Indian Penal Code (for short, the 'IPC') by the learned
Additional Sessions Judge, Pune.
 During the course of investigation, the police added another
offence under section 376 of the Indian Penal Code in the FIR
against the petitioners and re-arrested them. Being aggrieved, the
petitioners filed writ petition before the High Court which was
dismissed. Hence, the special leave petition. 2
We have heard learned counsel appearing for the parties and
perused the record.
It is not permissible for the respondent-State to simply
re-arrest the petitioners by ignoring order dated 02.06.2016 passed
by the learned Additional Sessions Judge, Pune, which was in force
at that time.
 S U P R E M E C O U R T O F I N D I A
 RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s).10179/2017
(Arising out of impugned final judgment and order dated 21-09-2017
in CRLWP No.3582/2017 passed by the High Court Of Judicature At
Bombay)
MANOJ SURESH JADHAV Vs  THE STATE OF MAHARASHTRA 

Date : 07-05-2018.
CORAM :
 HON'BLE MR. JUSTICE S.A. BOBDE
 HON'BLE MR. JUSTICE L. NAGESWARA RAO

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Whether magistrate can issue warrant at stage of investigation?

 The   moot   question   that   now
requires to be answered is whether
a   Court   can   issue   a   warrant   to
apprehend   a   person   during
investigation   for   his   production
before   police   in   aid   of   the

Investigating Agency.
13. Chapter   VI   of   the   Code   which
is   captioned   as   `processes   to
compel appearance' consists of four
parts   part   A   relates   to   Summons;
part B to warrant of arrest; part C
to proclamation and attachment and
part   D   to   other   rules   regarding
processes.   Part   B,   with   which   we
are   primarily   concerned   in   these
appeals,   has   in   its   fold Section
70 to 81. Section 70 speaks of the
form in which the warrant to arrest
a   person   is   to   be   issued   by   the
Court   and   of   its   durational
validity. Section   71 empowers   the
Court issuing the warrant to direct
the officer who is to execute the
warrant, to release that person on
terms   and   condition   as   provided
therein. Section 72 provides that a
warrant   shall   ordinarily   be
directed   to   one   or   more   police
officers   but   if   its   immediate
execution   in   necessary   and   no
police   officer   is   immediate
available it may be directed to any
other person for execution.
24. Now   that   we   have   found
that Section   73 of   the   Code   is   of
general   application   and   that   in
course of the investigation a Court
can issue a warrant in exercise of
power   thereunder   to   apprehend,
inter alia, a person who is accused
of   a   non­bailable   offence   and   is
evading arrest, we need answer the
related question as to whether such
issuance of warrant can be for his
production before the police in aid
of   investigation.   It   cannot   be

gainsaid   that   a   Magistrate   plays,
not   infrequently,   a   role   during
investigation,   in   that,   on   the
prayer of the Investigating Agency
he   holds   a   test   identification
parade,   records   the   confession   of
an   accused   or   the   statement   of   a
witness, or takes or witnesses the
taking   of   specimen   handwritings
etc. However, in performing such or
similar   functions   the   Magistrate
does   not   exercise   judicial
discretion like while dealing with
an   accused   of   a   non­bailable
offence who is produced before him
pursuant   to   a   warrant   of   arrest
issued   under  Section   73.   On   such
production,   the   Court   may   either
release   him   on   bail   under Section
439 or   authorise   his   detention   in
custody (either police or judicial)
under Section   167 of   the   Code.
Whether   the   Magistrate,   on   being
moved by the Investigating Agency,
will   entertain   its   prayer   for
police custody will be at his sole
discretion   which   has   to   be
judicially   exercised   in  accordance
with  Section   167 (3) of   the   Code.
Since warrant is and can be issued
for   appearance   before   the   Court
only and not before the police and
since   authorisation   for   detention
in police custody is neither to be
given as a matter of course nor on
the mere asking of the police, but
only   after   exercise   of   judicial
discretion   based   on   materials
placed   before   him,   Mr.   Desai   was
not   absolutely   right   in   his
submission   that   warrant   of   arrest
under Section 73 of the Code could
be issued by the Court solely for

the   production   of   the   accused
before   the   police   in   aid   of
investigation.”

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) No. 535 of 2016


JAYSUKH @ JAYESH MULJIBHAI RANPARIYA ( PATEL )
V
STATE OF GUJARAT
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
 Date : 20/10/2016

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Whether Accused who is released on bail for minor offence can be arrested again if offence converts in to non bailable offence?

 Where such person already released on bail for a bailable offence is proceeded in the crime for a non bailable offence he becomes disentitled to the liberty granted to him in relation to the minor offence. The law applicable in such a situation has been stated by the Apex Court in Prahlad Singh Bhati v. N.C.T. Delhi (AIR2001SC1444 thus:- "With the change of the nature of the offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime." In the present case petitioners(accused) were released on bail by police at a stage when they were accused of a bailable offence. When investigation has revealed that the offence committed by them was an aggravated one, a non bailable offence, they become disentitled to the liberty granted to them in relation to the minor  offence. In such a case no orders from the Sessions Court or High court under section 439(2) of the Code is warranted for their arrest by police. Their previous release on bail by police when they were proceeded only for bailable offence would no way shield them from arrest by police if investigation disclose their culpability in a non bailable offence. Even where a person is granted bail by the court under section 436(1) of the Code, if he is later proceeded for a non bailable offence in the same crime no cancellation of bail need be applied by investigating officer but only informing the court of inclusion of the aggravated offence for issue of direction to the accused to apply for bail again for the graver offence. No order of cancellation of bail is required or called for. The argument canvassed by counsel that a person arrested and released on bail under section 436(1) of the Code can be rearrested only under an order passed only by Sessions Court or High Court under section 439 (2) of the Code has no merit. The words 'under this Chapter' in sub section (2) of Section 439 do not postulate that a person released on bail under section 436(1) of the Code, whether it be by police or court, can be rearrested only by an order of the Sessions Court or High Court. What is provided under that sub section is a plenary power to the High Court or Court of Session for revoking or cancelling bail granted to any person under Chapter XXXIII of the Code for arresting and committing him to custody where circumstances demand such an order to advance the ends of justice. Where no cancellation or revocation of a bail granted in relation to a bailable offence is needed or called for when the person granted bail is proceeded for an aggravated non bailable offence sub section (2) of Section 439 of the Code has no applicability at all. View expressed by this court in Biju v. State of Kerala (2000(2) KLT495 that "when an accused has been released on bail under section 436 of the Code and later a nonbailable offence is added, his bail can be cancelled only under section 439(2) or under section 437(5) Cr.P.C and that too on misuse B.A.No.5555/2013 10 of liberty granted" cannot hold good in the light of judicial pronouncement rendered over that question by the Apex Court in Prahlad Singh Bhati's case referred to above. In a fact situation where a person has been released on bail when proceeded with for a bailable offence alone, adding of aggravated nonbailable offence against him in the crime disentitle him to the liberty granted in respect of the minor offence. In such a case no question of revoking or cancelling the bail granted earlier for the minor bailable offence is called for.

KERALA HIGH COURT

Ahamed Basheer Vs. Sub Inspector of Police,vidyanagar

Citation; 2014 CR L J 137 kerala

Judge : MR.JUSTICE S.S.SATHEESACHANDRAN

Decided On : Sep-23-2013

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Whether Police can release accused on Bail in Non-Bailable Offence?

 Therefore, in our view, Section 437 of the Code does not empower the police officer to release any person accused of, or suspected of, the commission of any non-bailable offence, unless he is satisfied that there are no reasonable grounds for believing that the accused has committed a non-bailable offence. Accordingly we dispose of the writ petition holding that the police officer can release any person accused of, or suspected of, the commission of any non- bailable offence only when the conditions under Section 437 (2) of the Code are met and the power to grant bail to such accused person, where there are no such grounds, is exclusively available to the Court.

ANDHRA PRADESH HIGH COURT

K. Upender Reddy vs Director General, Acb & Another on 4 April, 2003

SRI JUSTICE BILAL NAZKI 
 MR. V. ESWARAIAH MR G. Pedda Babu

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