Deepak Khosla v. State of NCT of Delhi & Ors.

1. Present petition under Section 439(2) read with Section 482 Cr.P.C., read with Articles 226 & 227 of the Constitution of India has been preferred by the petitioner to challenge the legality and correctness of an order dated 01.02.2017 of learned Addl. Sessions Judge by which order dated 03.01.2017 of learned Addl. Chief Metropolitan Magistrate, Delhi in C.C. No.463927/2016 granting bail to the respondents No.2 to 4 (hereinafter referred as ‘respondents’) was upheld.

2. I have heard the petitioner and have examined the file.

3. The petitioner urged to declare the impugned order dated 03.01.2017 whereby bail was granted to respondents without moving any written application by them to be a nullity in law. He further urged that 2017:DHC:1182 order dated 01.02.2017 can’t be sustained as the learned Addl. Sessions Judge was of erroneous view that only High Court had jurisdiction to cancel bail under Section 439(2) Cr.P.C.

4. Respondents were admittedly summoned to face trial for commission of bailable offences under Sections 499/500 IPC. The petitioner urged that under Section 436 Cr.P.C. grant of bail in bailable offences is not mandatory but directory; it is not a matter of undeniable right but is a matter of judicial discretion. Adjudicating of a prayer for bail not a ‘ministerial’ act but requires application of mind. He further urged that in bailable offences ordinarily grant of bail though a matter of right is subject to caveat of FTTR Rule i.e. the accused shall not flee; shall not temper; shall not threaten and shall not repeat. In the instant case, the petitioner had shown material before the Trial Court that by hosting the very defamatory article on their website even on the day of grant of bail, the respondents were repeating the ‘act’ for which they were summoned to face trial. Since the respondents did not take steps to undo the ‘continuing act’ of defamation after grant of bail, second complaint regarding the said article carried on the internet was filed on 27.01.2017 and cognizance has been taken on 28.01.2017 by the Court. The respondents did not demonstrate if they were prepared to give bail; no written application or submissions were made in that regard. Order dated 03.01.2017 is nullity in law as the Magistrate had no jurisdiction to forcibly thrust a bail order even when it was not asked for.

5. The petitioner further urged that order dated 03.01.2017 cannot be sustained as it is in effect, a “review” of the order taking cognizance and summoning of the respondents.

6. During arguments, the petitioner vehemently emphasized that the learned Trial Court was not competent to grant suo moto bail to the respondents in the absence of any such prayer being made by them. The circumstances brought to the notice of the Trial Court regarding repetition of the offence were sufficient to decline bail to the respondents under FTTR Rule. He further urged that this Court has inherent powers under Section 482 Cr.P.C. to cancel the bail due to violation of FTTR Rule by not removing the defamatory article on the website even after grant of bail.

7. Reliance has been placed on ‘Talab Haji Hussain vs. Madhukar Purshottam Mondkar & Anr.’, AIR 1958 SC 376 (1); ‘Janardan Yadav & Anr. Vs. State of Bihar & Anr.’, 1978 Crl.L.J. 1318; ‘Ratilal Bhanji Mithani vs. Asstt. Collector of Customs, Bombay’, 1967 (3) SCR 926; ‘Rasiklal vs. Kishore Khanchand Wadhwani’, AIR 2009 SC 1341 & ‘Ram Govind Upadhyay vs. Sudarshan Singh & Ors.’, 2002 (3) SCC 598.

8. Undisputedly, the respondents have been summoned to face trial in a Complaint Case No.463927/2016 for commission of bailable offences punishable under Sections 499/500 IPC. Grant of bail to a person accused of bailable offence is governed by the provisions of Section 436 of the Code of Criminal Procedure, 1973. Bail in such cases is compulsory and a person accused of a bailable offence if prepared to furnish bail has the right to be released on bail and the Court has no discretion to deny bail. In such cases, the accused is ordinarily to be at liberty and it is only if he is unable to furnish such security, he should remain in detention. Section 436 is imperative and under its provisions the Magistrate is bound to release the person on bail or recognizance.

9. The question as to whether a person accused of bailable offence is entitled to grant of bail as a matter of right stands authoritatively concluded by the decision of the Supreme Court in the case of ‘Rasiklal vs. Kishore Khanchand Wadhwani’, 2009 (4) SCC 446, in which it has been clearly held that in bailable offence, the right of the accused to get bail is absolute and indefeasible right and the Courts have no discretion in granting bail, Their Lordships held as under:- “....There is no doubt that under Section 436 of the Code of Criminal Procedure a person accused of a bailable offence is entitled to be released on bail pending his trial. As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the Section instead of taking bail from him. The position of persons accused of non-bailable offence is entirely different. The right to claim bail granted by Section 436 of the Code in a bailable offence is an absolute and indefeasible right. In bailable offences there is no question of discretion in granting bail as the words of Section 436 are imperative. The only choice available to the officer or the court is as between taking a simple recognizance of the accused and demanding security with surety. The persons contemplated by Section 436 cannot be taken into custody unless they are unable or willing to offer bail or to execute personal bonds. There is no manner of doubt that bail in a bailable offence can be claimed by accused as of right and the officer or the court, as the case may be, is bound to release the accused on bail if he is willing to abide by reasonable conditions which may be imposed on him.”

10. The basic characteristic feature of a bailable offence is that bail is a matter of right. In fact, it is the duty of the learned Magistrate to inform the accused involved in a bailable offence that he is entitled to go on bail and elicit whether he is ready to offer bail. Law does not require him to move any application to seek bail. Even the complainant is not required to be heard before grant of bail. The Court has no jurisdiction when granting bail under Section 436 Cr.P.C., even to impose any condition except demanding of security. Observations of the Hon’ble Supreme Court in ‘Vaman Narain Ghiya vs. State of Rajasthan’, 2009 (2) SCC 281 are relevant to note:-

11. Since Sections 499/500 IPC were bailable offences, the learned Addl. Chief Metropolitan Magistrate committed no error to grant bail to the respondents under Section 436 Cr.P.C.

12. I do not subscribe to the petitioner’s contention that at the time of grant of bail under Section 436 Cr.P.C., the Court was under legal obligation to consider FTTR Rule. Even if the circumstances as depicted in hypothetical examples detailed in para 14 of the petition existed, the learned Metropolitan Magistrate had no jurisdiction whatsoever to deny bail to the respondents.

13. Regarding cancellation of bail in bailable offences, the position has been made clear in ‘Rasiklal vs. Kishore Khanchand Wadhwani’ (Supra). The Supreme Court observed:- “There is no express provision in the Code prohibiting the court from re-arresting an accused released on bail under Section 436 of the Code. However, the settled judicial trend is that the High Court can cancel the bail bond while exercising inherent powers under Section 482 of the Code. According to this Court, a person accused of a bailable offence is entitled to be released on bail pending his trial, but he forfeits his right to be released on bail if his conduct subsequent to his release is found of prejudicial to a fair trial. And this forfeiture can be made effective by invoking the inherent powers of the High Court under Section 482 of the Code.” (Emphasis given)