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DECODING THE JURISPRUDENCE ON CANCELLATION OF BAIL UNDER SECTION 439(2) OF THE CRPC

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INTRODUCTION

The concept of bail has been the citadel of attention for criminal law practitioners and scholars. It is one of those law topics that has succeeded in becoming the center of attention for lawyers as well as theorists (jurists). And righty so! The dichotomy of jail and bail touches upon the most cherished and celebrated right of personal liberty of an individual. Also, the impact of arrest on the reputation and self-esteem of an individual is an important consideration [Joginder Kumar v. State of U.P, 1994 AIR 1349: 1994 SCC (4) 260], thus making “bail jurisprudence” a vital component of the overall criminal law jurisprudence.

The quality of a nation’s civilisation can be largely measured by the methods it uses in the enforcement of criminal law [Joginder Kumar (supra)]. While the criminal law proceeds on the basic presumption of innocence of an accused until proven guilty, arrest during investigation is considered to be a crucial tool in the hands of the investigating agency for securing ends of justice by ensuring a fair and uninfluenced investigation. However, it is this presumption of innocence, coupled with the importance attributed to liberty of an individual, that forms the building block of the established principle around which the whole bail jurisprudence has been knitted so far – bail is the rule, jail is the exception.

On this point, the observations of the Hon’ble Supreme Court in Sanjay Chandra v. CBI, (2012) 1 SCC 40 may be reverted to:

“In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, ‘necessity’ is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.”

As vast as the subject of bail is, the present article is confined to a particular aspect i.e. “cancellation of bail” – a mere drop in the ocean. The present article proceeds with the assumption that the reader is familiar with the basic concept and principles surrounding bail. To put very succinctly, Chapter XXXIII  of the Code of Criminal Procedure, 1973 (Sections 436 to 450) deals with the provisions concerning bail and bonds. The most important sections of the said Chapter are referred hereinunder:

  • Sections 437 provides for the granting of regular bail by the Magistrate;
  • Section 439 provides for granting of regular bail by the Sessions and the High Court. Clause (2) confers upon the said Courts (i.e. the Sessions and the High Court) with the power of cancellation of bail;
  • Section 438 deals with provisions relating to the granting of anticipatory bail by the Sessions Court and the High Court.

The present article is particularly aimed at discussing the aspect of “cancellation of bail”. The present discussion becomes relevant once bail has been granted to the accused by the Court.

BAIL : REJECTION v. CANCELLATION

At the very outset, it needs to be noted that rejection of bail, and, cancellation of bail already granted to an accused, are two separate issues governed by distinct principles. While the former is governed by the principles concerning grant of bail, the latter stands on a different footing altogether. The Hon’ble Supreme Court in State (Delhi Administration) v. Sanjay Gandhi, 1978 (2) SCC 411 has made the following elemental distinction in defining the nature of exercise while cancelling bail:

“Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail already granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial.”

The burden of fair and judicial exercise of discretion is comparatively higher in cases where the Courts are called upon to cancel bail already granted as compared to cases where the Courts are called upon to grant or reject the bail. In the landmark case of Dolat Ram v. State of Haryana, (1995) 1 SCC 349 Hon’ble Supreme Court on the question of cancellation of bail already granted observed:

“Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner… However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non bailable case in the first instance and the cancellation of bail already granted.”

The observations of the Court in Bhagirathsinh v. State of Gujarat, (1984) 1 SCC 284 : 1984 SCC (Cri) 63 may also be noted in this regard:

“In our opinion, the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Sessions Judge. One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was a social and political worker and therefore the accused should not be granted bail but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a discretionary order of the learned Sessions Judge granting bail. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail and the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. The order made by the High Court is conspicuous by its silence on these two relevant considerations. It is for these reasons that we consider in the interest of justice a compelling necessity to interfere with the order made by the High Court.”

Similar observations were made by the Court in X v. State of Telangana, (2018) 16 SCC 511:

“…Above all, the Court must bear in mind that it is a settled principle of law that bail once granted should not be cancelled unless a cogent case, based on a supervening event has been made out. We find that to be absent in the present case.”

The issue of cancellation of bail once granted requires considerations that go beyond the grounds for grant of bail on account of the fact that the said exercise concerns appreciation of either of the two issues:

  1. Supervening circumstances including breach of conditions imposed at the time of grant of bail;
  2. Illegality or perversity in the Order granting bail.

While ground (a) has been the governing criteria for cancellation of bail under section 439(2) of the CrPC for a long time now, the second ground i.e. ground (b) has recently been at the heart of several Special Leave Petitions preferred by the State or the Complainant/Victim against the orders of the High Courts enlarging an accused on bail.

CANCELLATION OF BAIL

SUPERVENING CIRCUMSTANCES:

Given the established bail jurisprudence, the Courts are required to consider inter alia the following factors while granting bail:

  1. Nature and gravity of the charge;
  2. Severity of punishment in case of conviction;
  3. Nature of supporting evidence;
  4. Prima facie satisfaction of the Court in support of the charge;
  5. Reasonable ground for believing that the applicant has committed the offence alleged against him;
  6. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
  7. Reasonable apprehension of tampering of the evidence or interference in the ongoing investigation;
  8. Likelihood of the applicant absconding, if released on bail (flight risk);
  9. Standing and status of the applicant including past conduct and prior convictions;
  10. Likelihood of the offence being continued or repeated;
  11. Opportunity to the applicant for preparing his defense on merits;
  12. Period of detention;
  13. Health, age and sex of the accused;
  14. Undue delay in the trial of the case;
  15. Objection of the prosecuting authorities; etc.

[State of Maharashtra v. Sitaram Popat Vital, AIR 2004 SC 4258; Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC1475; Prahlad Singh Bhati v. N.C.T. Delhi, AIR 2001 SC 1444]

Given the fact that at the time of granting bail, the Courts are primarily indulged in prima facie “risk evaluation” and weighing of the possibilities of abuse of liberty if granted, it is only logical that any circumstances subsequent to the grant of bail that alters/modifies the considerations forming the basis of the order granting bail, be considered for its cancellation. To put it simply, if an accused has been enlarged on bail on account of the consideration that there is no likelihood of him tampering the witnesses/evidence and subsequently, upon grant of bail, it is brought to the notice of the Court that the accused threatened any witness/tampered any evidence, the said circumstance would warrant the cancellation of bail granted to the accused.

There might be a situation wherein some new facts are uncovered during the course of the investigation post the grant of bail to the accused, say, new evidence is uncovered/brought on record to strengthen a prima facie case of commission of an offence of greater severity by the accused, in such circumstances, cancellation of bail becomes imperative. The Courts in Puran v. Rambilas, 2001 (6) SCC 338 relied and reiterated the observations made by the Court in Gurcharan Singh v. State (Delhi Admn.), 1978 AIR 179 and observed:

“Further, it is to be kept in mind that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of cancelling the ball on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.). In that case the Court observed as under

“If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody.”

Another scenario where cancellation of bail may be sought is where the Court granting bail to the accused had imposed certain conditions on the accused and he had breached the same. For example, the Court granting bail directs the accused to appear before the Investigating agency every week and co-operate in the investigation, however, the accused does not appear before the Investigating agency and attempts to leave the State. This would be a case of breach of the conditions of bail warranting cancellation.

ILLEGALITY OR PERVERSITY IN THE ORDER GRANTING BAIL

The second, and comparatively more intriguing (forgive the author’s bias towards the degree of interest reflected under this head) is the one of “perversity”. Under this head, the attack is on the Order granting bail to the accused. The contention of the challenger (usually the Complainant or State) herein would be the illegality and perversity of the order vide which the accused was enlarged on bail rather than the subsequent developments. Essentially, the Applicant/Petitioner under this head makes a case that the Court that enlarged the accused on bail overlooked material considerations and passed a perverse, unreasonable, and arbitrary order. It may be loosely considered as an Application/Petition challenging the Order granting bail. Indicative heads for cancellation of bail under the said head primarily center around the improper exercise of discretion inter alia includes cases of:

  1. Non-application of mind by the Court granting bail;
  2. Overlooking of material considerations or taking into account irrelevant considerations;
  3. Arbitrary or unreasoned order; etc.

Herein, there may not be any supervening circumstances warranting cancellation, but the illegality of the order granting bail is sufficient for warranting cancellation. Hence, thanks to the recent judgments of the Hon`ble Supreme Court (as mentioned below), bail granted illegally and/or improperly by wrong and arbitrary exercise of judicial discretion can be cancelled by the High Court under Section 439(2) of the Code, even if there is no supervening circumstance against an accused (like tampering of witnesses of going incognito) appearing in the record after grant of bail [State of Orissa v. Jagannath Patel, 1992 Cri. LJ 1818].

The Hon’ble Supreme Court in Padmakar Tukaram Bhavnagare v. State of Maharashtra, (2012) 13 SCC 720 observed and held “perversity” as a ground for cancellation of bail:

“It is true that this Court has held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of justice or abuse of the concession granted to the accused in any manner. This Court has clarified that these instances are illustrative and bail can be cancelled where the order of bail is perverse because it is passed ignoring evidence on record or taking into consideration irrelevant material. Such vulnerable bail order must be quashed in the interest of justice. [See Dolat Ram v. State of Haryana, (1995) 1 SCC 349 : 1995 SCC (Cri) 237 and Dinesh M.N. (S.P.) v. State of Gujarat [(2008) 5 SCC 66].”

The Hon’ble Supreme Court in Omar Usman Chamadia v. Abdul (JT 2004 (2) SC 176) desisted the practice of High Courts in passing unreasoned orders in criminal matters thus directing the High Courts to indicate reasons especially in cases where the Order of the lower Court is overturned:

“However, before concluding, we must advert to another aspect of this case which has caused some concern to us. In the recent past, we had several occasions to notice that the High Courts by recording the concessions shown by the counsel in the criminal proceedings refrain from assigning any reason even in orders by which it reverses the orders of the lower courts. In our opinion, this is not proper if such orders are appealable, be it on the ground of concession shown by the learned counsel appearing for the parties or on the ground that assigning of elaborate reasons might prejudice the future trial before the lower courts. The High Court should not, unless for very good reasons desist from indicating the grounds on which their orders are based because when the matters are brought up in appeal, the court of appeal has every reason to know the basis on which the impugned order has been made. It may be that while concurring with the lower courts’ order, it may not be necessary for the said appellate court to assign reasons but that is not so while reversing such orders of the lower courts. It may be convenient for the said court to pass orders without indicating the grounds or basis but it certainly is not convenient for the court of appeal while considering the correctness of such impugned orders. The reasons need not be very detailed or elaborate, lest it may cause prejudice to the case of the parties, but must be sufficiently indicative of the process of reasoning leading to the passing of the impugned order…

…Whereas in the instant case it is a final order reversing the order of the learned Sessions Judge wherein the High Court thought it not necessary to give the reasons on the ground that the counsel appearing for the parties did not press for a reasoned order. Consequently, when the matter was taken up for hearing, we had no benefit of the reasons which persuaded the High Court to pass the impugned order…..

…But we do record our disapproval of the practice followed by the High Court reflected in the impugned order and hope the same will not be repeated…”

The principle applies to bail matters as well. The High Court cannot, in a mechanical manner, grant or reject the bail of the accused nor can the same be cancelled without assigning any reasons. In cases where no reasons are assigned for granting bail to an accused, the same is cancelled on account of the arbitrary and perverse nature of the Order.

The Hon’ble Supreme Court in Ram Govind Upadhyay v. Sudarshan Singh, 2002 Cri LJ 1849 at 1852 : AIR 2002 SC 1475 was dealing with an Order wherein the High Court had granted bail to the accused by overturning the Order of the Sessions Court. The Hon’ble Supreme Court observed that the basic criteria for cancellation of bail is interference or attempt to interfere with the administration of justice and/or abuse of privilege granted to the accused. The Court noted that undoubtedly, the considerations applicable to the grant of bail vis-à-vis considerations for cancellation of an order granting bail are independent and do not overlap each other. However, in the event of non-consideration of relevant considerations for the purpose of grant of bail, especially when an earlier order of rejection is available on the records, it is a duty incumbent on the High Court to explicitly state the reasons as to why there was a sudden departure in the order of grant as against the earlier rejection.

In Mahipal v. Rajesh Kumar, (2020) 2 SCC 118, the Hon’ble Supreme Court discussed the issue of the perversity of the order passed by the High Court granting bail to the accused and held:

“The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case-by-case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime…”

CONCLUSION

While the considerations for rejection of bail and cancellation of bail once granted have been held to be separate and distinct, cancellation of bail on the ground of perversity and illegality of the order granting bail does require a variety of factors to be considered for cancellation of bail. It is in cases where these factors are improperly weighed that a higher Court may cancel the bail thus, essentially, treating an application for cancellation of bail as an appeal simpliciter against the order granting bail. The procedural distinction being that an application for cancellation of bail may be moved before the same Court in a case concerning supervening circumstances, while in case of “perversity” it is always for the higher Court to determine the legality of the order. The issue of bail is one where the Courts are required to balance the individual right of the accused against the right of the society. In the end, the balance needs to be maintained by way of judicious exercise of judicial discretion conferred upon the Courts.

Such exercise of jurisdiction might become redundant in light of subsequent circumstances, or in cases where the Courts fail to exercise the discretion in a prudent manner by granting bail to undeserving accused persons in a mechanical manner, thus necessitating the provisions for cancellation of bail. Taking into consideration the jurisprudence and the scheme of bail in the criminal justice administration system, grant/rejection as well as cancellation of bail forms the bedrock for securing a fair and proper investigation enabling the Courts to secure the ends of justice by way of a judicious exercise of judicial discretion.

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OFFENCES UNDER THE IP LAW WHOSE PUNISHMENT MAY EXTEND TO THREE YEARS: BAILABLE OR NON-BAILABLE?

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This article discusses various judgments on the issue whether an offence whose punishment “may extend to three years” is a bailable / non-cognizable offence or a non-bailable / cognizable offence, with special emphasis on such offence(s) provided under the Copyright Act, 1957 [“Copyright Act”] and the Trade Marks Act, 1999 [“Trade Marks Act”]. Although the discussion herein largely focuses on the judgments delivered in the context of Section 63 of the Copyright Act, the same is (needless to clarify) extendable to other such offences provided under the Copyright Act, the Trade Marks Act, and other statutes.

Bailable & Cognizable: A conceptual understanding

The Code of Criminal Procedure, 1973 [“Code”] is the primary statute which helps us determine if a particular offence is bailable or not and cognizable or not; unless a statute stipulating an offence specifically provides for its cognizable and bailable nature. Essentially, a cognizable offence is the one for which a police officer “may arrest without warrant” [Section 2 (c) of the Code]; and a non-cognizable offence is the one for which “a police officer has no authority to arrest without warrant” [Section 2 (l) of the Code]. The definition of “bailable offence” and “non-bailable offence” as provided in Section 2 (a) of the Code does not give us much guidance as to the meaning thereof. For that, one has to inter alia refer to Chapter XXXIII of the Code, a perusal whereof suggests that: a bailable offence is the one for which the accused can seek bail as a matter of right [Section 436 of the Code]; while in case of a non-bailable offence, the discretion to grant bail lies with the Court [Sections 437-439 of the Code].

Given the grave restriction of personal liberty (or at least a reasonable apprehension whereof) that ensues as a result of characterizing a particular offence as cognizable and non-bailable, the issue which is discussed herein becomes significant, and perhaps for that reason has been re-agitated several times. The sole guide in this regard is the First Schedule to the Code [“Schedule”] which inter alia classifies offences as cognizable / non-cognizable & bailable / non-bailable.

The Issue

The Copyright Act and the Trade Marks Act (and various other statutes for that matter) provide for certain offences but fail to classify those offences specifically as cognizable / non-cognizable & bailable / non-bailable. Therefore, to determine the appropriate classification, one has to make reference to Part II of the Schedule, which provides for “classification of offences against other laws”. The classification provided therein is to the following effect [“concerned classification table”]:

Offence Cognizable or Non-cognizable Bailable or Non-bailable
If punishable with death, imprisonment for life, or imprisonment for more than 7 years. Cognizable Non-bailable
If punishable with imprisonment for 3 years and upwards but not more than 7 years, Cognizable Non-bailable
If punishable with imprisonment for less than 3 years or with fine only. Non-cognizable Bailable

In the Copyright Act, there are various provisions [being Sections 63 (Offence of infringement of copyright or other rights conferred by the Copyright Act), 63A (Enhanced penalty on second and subsequent convictions), 63B (Knowing use of infringing copy of computer programme to be an offence) & 68A (Penalty for contravention of section 52A)] which provide for offences whose punishment is imprisonment which “may extend to three years”. Even the Trade Marks Act contains provisions [being Sections 103 (Penalty for applying false trade marks, trade descriptions, etc.), 104 (Penalty for selling goods or providing services to which false trade mark or false trade description is applied), 105 (Enhanced penalty on second or subsequent conviction) & 107 (Penalty for falsely representing a trade mark as registered)] which provide for offences with the aforementioned punishment. To determine if the aforementioned offences are cognizable and non-bailable or non-cognizable and bailable, one needs to analyze the entries of the concerned classification table and see under which entry the aforementioned offences fall – the second entry or the third entry.

Case Law

Now, let us turn to the case law on the issue; an analysis whereof reveals that there are various conflicting judgments of the High Courts. Although there is an order of the Supreme Court viz. Avinash Bhosale v. Union of India [(2007) 14 SCC 325] which has been considered by some High Courts to be a conclusive dictum on the issue, however, it can be argued that this order does not amount to declaration of law under Article 141 of the Constitution by invoking the doctrine of sub silentio. In Avinash Bhosale, the issue pertained to Section 135 (1) (ii) of the Customs Act, 1962, which provides for an offence for “evasion of duty or prohibitions” and makes it punishable with imprisonment “which may extend to three years” in certain cases. Avinash Bhosale is a one-page order wherein all the Supreme Court had to say was, “it appears to us that the offence which is alleged to have been committed is a bailable offence”. There was no analysis of the concerned offence or the entries in the concerned classification table. There was no justification (whatsoever) as to why the concerned offence fell under the third entry of the concerned classification table. In fact, there was no reference to the third entry of the concerned classification table. There was no reasoning or justification as is highly warranted on this issue. It can only be termed as a purely ‘silent’ and ‘non-reasoned’ order.

It is now apposite to understand the doctrine of sub silentio, in brief. In MCD v. Gurnam Kaur [(1989) 1 SCC 101], the Supreme Court explained the doctrine in the following words:

“Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn. explains the concept of sub silentio at p. 153 in these words:

A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.

…in Lancaster Motor Co. (London) Ltd. v. Bremith, Ltd. [1941] 1 KB 675, the Court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. We went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided “without argument, without reference to the crucial words of the rule, and without any citation of authority”, it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed.”

Gurnam Kaur was followed in State of U.P. v. Synthetics and Chemicals Ltd. [(1991) 4 SCC 139] wherein the Supreme Court held as follows:

“But the problem has arisen due to the conclusion in the case of Synthetic and Chemicals (supra). The question was if the State legislature could levy vend fee or excise duty on industrial alcohol. The Bench answered the question in the negative as industrial alcohol being unfit for human consumption the State legislation was incompetent to levy any duty of excise either under Entry 51 or Entry 8 of List II of the VIIth Schedule. While doing so the Bench recorded the conclusion extracted earlier. It was not preceded by any discussion. No reason or rationale could be found in the order. This gives rise to an important question if the conclusion is law declared under Article 141 of the Constitution or it is per in curium and is liable to be ignored… In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. 1941 1KB 675, the Court did not feel bound by earlier decision as it was rendered ‘without any argument, without reference to the crucial words of the rule and without any citation of the authority’. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur AIR 1989 SC 38. The Bench held that, ‘precedents sub-silentio and without argument are of no moment’. The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In Shama Rao v. State of Pondicherry AIR 1967 SC 1680 it was observed, ‘it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down there-in’. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent.”

Gurnam Kaur and Synthetics and Chemicals Ltd. were followed in A-One Granites v. State of U.P. [(2001) 3 SCC 537]. In light of the aforementioned judgments on the doctrine of sub silentio, it cannot be said that Avinash Bhosale amounts to declaration of law under Article 141, and hence, has a binding effect. Now, as we have dodged Avinash Bhosale, we must refer to the judgments of the High Courts.

i. Gauhati High Court

In Jitendra Prasad Singh v. State of Assam [(2004) 2 GLR 271], the High Court was considering if the offence stipulated in Section 63 of the Copyright Act is a bailable one or not. On a plain reading of the text of Section 63 and that of the third entry in the concerned classification table, it was held that the offence was a non-bailable one. The reasoning was: the expression “punishable with imprisonment which may extend to three years” cannot be equated with the expression “punishable with imprisonment for less than 3 years” since the accused can be punished with imprisonment for three years, and hence, the third entry will not apply. Therefore, the offence cannot be considered as a bailable one. In essence, the test laid down was that one has to look at the maximum punishment provided for an offence, and then determine which entry of the concerned classification table it falls under.

ii. Andhra Pradesh High Court

In Amarnath Vyas v. State of A.P. [MANU/AP/1214/2006], the High Court did not agree with Jitendra Prasad Singh and held that the offence stipulated in Section 63 was a bailable one. However, the reasoning provided therein was completely convoluted. It was unequivocally held that the third entry of the concerned classification table did not apply since the maximum punishment provided in Section 63 was imprisonment for three years. However, it was (strangely) held that even the second entry did not apply:

“Whether the second category of the classification will attract or not is the only point germane for consideration in the instant case. A close scrutiny of the excerpt extracted hereinabove would clearly show that the punishment prescribed under the provisions of the Act is for a term which may extend upto three years. If the punishment prescribed under any special Act is for a term of three years and upwards, it would become ‘non-bailable’. The language used in both the provisions, if read keeping them in juxtaposition, would help us in comparing them so as to have a clear idea… The expression “punishment for a term which may extend to three years” is certainly not similar to the expression “punishment for three years and upwards”… True there may be certain other class of offences which may fall in between classification II and classification III of Second Part of Schedule-I. Merely because they are not coming squarely within the domain of classification-III, they, cannot automatically be treated as included in the classification-II. By default, they cannot be considered as coming within the purview of the classification-II… Therefore, the expression ‘imprisonment for a term which may extend upto three years’, in my considered view, would not come squarely within the expression ‘imprisonment for three years and upwards’. Therefore, the offence punishable under Section 63 of the Act cannot be considered as ‘non-bailable’ one.”

The aforementioned observation shows that the Court was apparently of the view that there are certain crevices and interstices in the concerned classification table within which one could fit the offences like the ones we are concerned with. However, there was no guidance as to how one should locate those crevices and interstices in the concerned classification table or the scheme of the Code. In any case, even if it is assumed that the interpretational analysis in the aforementioned judgment is correct, there is no justification as to how the Court came to the conclusion that the concerned offence was a non-bailable one. Because, even if one accepts that not a single entry of the concerned classification table is applicable in such a case, how does one, then, determine if the offence is a bailable one or not?

Furthermore, the Court made reference to a Supreme Court judgment viz. Rajeev Chaudhary v. State (N.C.T.) of Delhi [MANU/SC/0330/2001] to bolster its justification. Rajeev Chaudhary provided clarity on the interpretation of Proviso (a) to Section 167 (2) of the Code, which is as follows:

“the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding—

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence,

and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail…”

In Rajeev Chaudhary, the Supreme Court was enjoined to decide if the offence stipulated in Section 386 of the Indian Penal Code, 1860, wherein the maximum punishment is imprisonment “which may extend to ten years”, fell under clause (i) or (ii) of the aforementioned Proviso. In the context of the aforementioned Proviso, the Court held that imprisonment “which may extend to ten years” cannot be equated with “imprisonment for a term of not less than ten years”. However, this ruling has no relevance to the issue which the Amarnath Vyas Court was deciding. One needs to understand that given the text of the aforementioned Proviso, one has to undergo a process of elimination since clause (i) deals with certain kinds of offences while clause (ii) is the residuary clause. So, one just needs to see if the concerned offence falls under clause (i), otherwise, clause (ii) applies. But, that is not the case with the concerned classification table. It provides a continuum, and every offence has to be classified under either of the three entries. Rajeev Chaudhary provided no guidance with respect to that. Therefore, it is not relevant.

iii. Kerala High Court

In Abdul Sathar v. Nodal Officer, Anti-Privacy Cell [AIR 2007 Ker 212], the Court held that the offence stipulated in Section 63 of the Copyright Act falls under the second entry of the concerned classification table, and hence, is a non-bailable and cognizable one. The logic of Jitendra Prasad Singh was followed (although no reference was made) – that one should look at the maximum punishment provided, and since maximum punishment provided in Section 63 is three years, it falls under the second entry. Pertinently, it distinguished Rajeev Chaudhary reasoning that the language used in Proviso (a) to Section 167 (2) of the Code is different from that used in the concerned classification table.

iv. Delhi High Court

In State v. Naresh Kumar Garg [2013 (56) PTC 282 (Del)], the Court held that the ruling in Avinash Bhosale would apply, and therefore, Section 63 of the Copyright Act was held to be bailable and non-cognizable. Thereafter, in Anuragh Sanghi v. State [2019 SCC OnLine Del 11382], the Court manifested a volte-face. The Court mad certain pertinent (and correct) observations in relation to interpretation of the concerned classification table, which are as follows:

“It is, at once, clear that there is no hiatus between the three categories. The spectrum of punishment by imprisonment from nil to life, is divided into three categories in the descending order. Therefore, this Court is of the view that the said three categories are exhaustive. Obviously, it follows that if an offence is punishable by a term of imprisonment which is not specifically mentioned in Part II of the First Schedule of the Cr.P.C., the same would be covered within the spectrum of the three categories… Almost all enactments stipulate a range of punishment that can be imposed in respect of any offence. Most of the enactments provide for a maximum punishment that can be imposed and some of the enactments also provide for a minimum sentence that can be awarded for an offence. It is not necessary that the range of punishment, as provided for any offence under any enactment, be in identical terms with the language of any of the categories under Part II of the First Schedule of the Cr.P.C. However, that does not mean that the punishment provided for the said offence falls outside the scope of Part II of the First Schedule of the Cr.P.C. As stated above, the three categories of Part II of the First Schedule of the Cr.P.C. cover the entire spectrum of offences that are punishable by imprisonment – from a term of nil (only with a fine) to a term of life.”

It is in the aforementioned manner that the Court refuted the logic of Amarnath Vyas. In pursuance of the aforementioned analysis and going by the logic of ‘maximum punishment’, the Court was convinced that Section 63 of the Copyright Act provides for a non-bailable and cognizable offence. However, the Court considered itself bound by the rulings in Avinash Bhosale and Naresh Kumar Garg. This is where, I feel, the Court could have done more. As already argued hereinbefore, Avinash Bhosale cannot be considered as binding. In so far as Naresh Kumar Garg is concerned, it was a judgment delivered by Single Judge and could have been referred to a Division Bench.

v. Gujarat High Court

In Gurukrupa Mech Tech v. State of Gujarat [(2018) 4 GLR 3324], the Court merely relied on Naresh Kumar Garg and held that Section 63 of the Copyright Act provided for a bailable and non-cognizable offence.

vi. Rajasthan High Court

In Pintu Dey v. State [MANU/RH/873/2015], the Court (Single Judge) relied on Amarnath Vyas and Rajeev Chaudhary and held that Sections 63 & 68A of the Copyright Act provided for bailable and non-cognizable offences. Thereafter, in Deshraj v. State of Rajasthan, the Court (Single Judge) gave a similar ruling without referring to Pintu Dey but by relying on Amarnath Vyas and Rajeev Chaudhary, and held that Section 63 & 63B of the Copyright Act provided for bailable and non-cognizable offences. However, in Nathu Ram v. State of Rajasthan [MANU/RH/39/2021], the Court (Division Bench) overruled Pintu Dey by distinguishing Rajeev Chaudhary and disagreeing with Amarnath Vyas. Deshraj was not referred to but the same stands impliedly overruled. Nathu Ram followed the logic of ‘maximum punishment’ as discussed hereinbefore.

vii. Bombay High Court

The last in our analysis comes the judgment in Piyush Subhashbhai Ranipa v. State of Mahrashtra [2021 (86) PTC 72 (Bom)], wherein the Court held that Section 63 of the Copyright Act and Section 103 of the Trade Marks Act provide for non-bailable and cognizable offences since the maximum punishment provided therein is imprisonment for three years, and hence, the second entry of the concerned classification table becomes applicable.

Conclusion

As is evident in my discussion of the judgments herein, I support the logic of ‘maximum punishment’. It might lead to harsh consequences, but that is the only way one can read the text employed in the concerned classification table. It is a continuum which is exhaustive and does not leave scope for crevices and interstices as was envisaged in Amarnath Vyas. Undoubtedly, Avinash Bhosale needs to be reconsidered. In any case, as I have argued, the same is not binding. In my opinion, all the aforementioned judgments, which hold that Section 63 of the Copyright Act and the like provisions provide for bailable and non-cognizable offences, do not lay down the correct position of law.

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In Criminal Procedure

THE DISCRETION TO ARREST WITH POLICE – A PERSPECTIVE FROM THE EXPERIENCES OF A PRACTISING LAWYER

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The discretion to arrest and put an accused behind bars in an offence which is cognizable and non – bailable, is possibly the most powerful right which the Code of Criminal Procedure, 1973 gives to police officers. The rationale behind giving such power to a police officer is that during the course of investigation, the accused should not interfere with the process of a fair and independent investigation. The custody of the accused with the police also aids the police in reconstructing the crime scene and make recoveries of the material which may have been involved in committing the offence. Furthermore, by way of arrest, the accused is incapacitated from committing any other offence during the period of investigation. However, the question remains as to whether “arrest” is the only way in which the above-mentioned objectives can be attained during the pendency of an investigation, or, should the police trust the alleged accused persons that they shall themselves co – operate in aiding the investigation and not disturb the investigation process by influencing potential witnesses etc.

The reporting of a crime can be done by any person who may or may not be a victim of that crime. If the local police station finds prima facie truth in the allegations of the complainant, an FIR (First Information Report) is lodged. The SHO (Station House Officer) deputes an IO (Investigating Officer) to every FIR who then goes on to investigate the alleged offence under the said FIR. It is this IO who has the power and discretion to arrest the accused who has been alleged of committing the crime. The jurisprudence on the powers and discretion of the IO to arrest the accused has evolved over a period of time.

The experience of the courts, more particularly the Hon`ble Supreme Court has not been very pleasant in so far as the use of this power to arrest by the IOs is concerned. The Hon`ble Supreme Court has time and again deprecated the practice adopted by the police where they make arrests in cases where the offence is either not very heinous or prima facie not made out from the allegations made in the criminal complaint. It cannot be denied that the enormous discretion given to the police officers has also led to massive corruption and abuse of this discretion by the police officers. It is common knowledge that a lot of investigating officers demand bribe / other favors from the accused to not arrest them post the lodging of the FIR. Interestingly, it is again known to everyone that many investigating officers also demand bribe/other favors from the complainant to make an arrest of the alleged accused. This is especially common in white collar crimes like cheating, forgery, criminal breach of trust etc. wherein the complainant is confident that an arrest of the accused will lead to a settlement of the matter between the parties thereby providing the complainant with the money/articles/goods which has been alleged to have been cheated or siphoned off by the accused.

COGNIZABLE OFFENCES CARRYING SEVEN OR LESS THAN SEVEN YEARS OF IMPRISONMENT

Section 41 of the Code of Criminal Procedure, 1973 is the principal section which governs the powers of the police officer to make an arrest of an accused person wherein the allegation is that a cognizable has been committed by the accused person. Section 41(1)(a) as amended in 2009 provides that any police officer may make an arrest without a warrant if the accused has committed a cognizable offence in the presence of a police officer. Whether or not an offence is cognizable or non – cognizable can be easily discerned by any person from Schedule I annexed to the Code of Criminal Procedure, 1973. Section 41(1)(b) is bifurcated into two parts i.e. arrests made in cases where the alleged cognizable offence carries seven or less than seven years of imprisonment and arrests made in cases where the alleged cognizable offence carries more than seven years of imprisonment. Through the 2009 amendment, the legislature has circumscribed the discretion of the investigating officers to make arrests in cases where the alleged cognizable offence carries seven or less than seven years of imprisonment. Section 41(1)(b) clearly provides that in such cases where the cognizable offence carries seven or less than seven years of imprisonment, a police officer can make an arrest without warrant only if the following conditions are satisfied:

(i) the police officer has “reason to believe” on the basis of such complaint/information that such person has committed the said offence

(ii) the police officer is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured.

The police officer is also mandated under law to write his reasons in the case diary as to why he/she feels that the above-mentioned criterions are being fulfilled in the case and hence arrest is being effected. Furthermore, Section 41A provides that in all cases where the police officer has after applying the criterions prescribed under Section 41(1)(b) decided that the arrest is not required, he/ she shall issue notice of appearance under Section 41A to the accused so that the accused can join the investigation and provide answers to the questions raised by the police officer.

My experience in handling criminal investigations on behalf of the accused in the past nine years tells me that rarely are the above-mentioned criterions prescribed under Section 41(1)(b) are followed in cases where the alleged offence carries a punishment of less than seven years. It is important to be noted that Section 41(1)(b) merely circumscribes the discretion of the police officer in arresting the accused for alleged cognizable offences which carry a punishment of seven or less than seven years. The discretion while circumscribed and guided through this provision does not completely take away the powers of the police officer to arrest an accused under this category of cases. The Supreme Court and other High Courts of our country have time and again reminded the investigating officers and police force of our country to apply their mind before making arrests in offences which carry a sentence of seven or less than seven years [See Arnesh Kumar v. State of Bihar, Criminal Appeal No. 1277 of 2014 (Supreme Court); Rajesh Sharma v. State of UP, AIR 2007 SC 3869]. But, from a more practical perspective, any practicing criminal lawyer of our country would confirm that the investigating officer rarely follows the mandate of Section 41(1)(b) in a meticulous manner.

The power/discretion to arrest or not to arrest as provided by the Code of Criminal Procedure, 1973 has often resulted in its abuse by the police officer. Arrest in India or for that matter any society across the world carries with it extremely strong prejudice and stigma. Even a single day of arrest can potentially demoralize and stigmatize a respectable individual of our society for his / her entire life. Hence, this power which lies with the investigating officers is expected to be used with utmost caution and by following the mandate of the law in the strictest sense. The criminal justice system in India is far from being ideal today in the present situation as it exists in 2021. Time and again it is seen by the stakeholders of the criminal justice system that the police officers abuse this discretion by taking bribe/favors from the complainant or the accused. The higher the stakes involved under the lodged FIR, the higher would be the involved corruption. The alleged accused also wants to indulge in the act of corruption because he / she feels that if they get arrested then they will be going through the ordeal of being in prison and also would have to eventually pay up to the defence lawyers for securing a bail for them. Hence, simply bribing the police officer and preventing any possible arrest may end up being a more feasible option. It will be important for me to caveat here that while abuse of arrest powers by police officers is common, there are independent and honest police officers who conduct absolutely neutral and impartial investigation on the basis of the merits of the case.

COGNIZABLE OFFENCES CARRYING MORE THAN SEVEN YEARS OF IMPRISONMENT

Section 41(ba) of the Code of Criminal Procedure, 1973 applies to all cases where the alleged offence carries more than seven years of imprisonment. This provision is much less complicated and fairly straightforward as it provides relatively less discretion to the investigating officer while making arrests in cognizable offences which carry more than seven years of imprisonment. The provision does not provide too many yardsticks on the basis of which an investigating officer can evaluate whether or not to make an arrest.

This provision simply says that any police officer may make an arrest where the police officer has received credible information that the accused has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years and the police officer has reason to believe on the basis of that information that such person has committed the said offence. Hence, a bare perusal of the provision shall highlight that once the police officer is convinced on a prima facie basis that the accused has committed the offence, the police officer will be well within his/her rights to make an arrest of the accused. Having said this, it is most definitely not a matter of practice that in

all cases where the alleged cognizable offence carries more than seven years of sentence would the police officer arrest the accused. The police officer in a lot of cases refuses to exercise its power to arrest (and rightfully so) when he / she feels that the criminal complaint on the basis of which the FIR is lodged is false and devoid of merits. Furthermore, in cases like recovery of money, alleged forgery, alleged cheating etc. where the dispute has a civil flavor, the police officers are careful before making any arrests even while the offences may carry a sentence of more than seven years. Needless to mention, that since this provision also provides discretion to the police officers, it has been time and again misused for securing illegal favors / bribe by the police officers.

The law regulating arrests is still in developing stages in India. There is a lot more that needs to be done in order to ensure that no wrongful arrests may take place or no alleged accused may go without being arrested simply because of the whims and fancies of the police officers. The situation can improve in 2 ways. Firstly, the police officers should start applying the mandate of law in a stricter manner wherein they actually adhere to the check list provided under Section 41(1)(b) before making an arrest in all cases where the offence carries a sentence of seven or less than seven years. Secondly, the legislature or the Hon`ble Supreme Court may prescribe certain cases (of less heinous nature) where the discretion is completely removed thereby giving certainty to citizens of our country and reducing the powers of police officers. Any change made in the law would have to examined while keeping in mind the delicate balance between providing right of personal liberty to individuals and right of life in a peaceful and crime free society of the public at large.

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