The Indian Supreme Court recently issued a harsh ruling on the jurisdiction of the judge in bail matters. The bench of two judges emphasised that courts cannot order an accused person to surrender when denying anticipatory bail. You can reject bail, but you can’t insist on what the accused should do. This was a ruling by Justices JB Pardiwala and Ujjal Bhuyan to set the boundaries for lower courts.
The Supreme Court was hearing a particular case from the state of Jharkhand in which the state’s high court played politics with the law. This high court had dismissed a man’s appeal for protection from arrest. The high court then went on to instruct him to surrender before a trial court for regular bail. The Supreme Court stated this particular direction is beyond the court’s jurisdiction. While judges can hear an application for bail, they cannot order one to surrender
The Roots Of The Dispute
The case came to the Supreme Court in a petition by Om Prakash Chhawnika. He had been a party to a dispute relating to property which ultimately led to a legal fight. He was sued by a private complaint before a magistrate. His opponent claimed that he had committed serious crimes associated with the sale of land. These were cheating, forgery, using a forged document and criminal conspiracy
Chhawnika feared that he might be arrested by the local police on this complaint. He went to the Jharkhand High Court for anticipatory bail. This means you get an order in advance from a court to not be arrested by the police while the investigation is ongoing. But the high court refused to provide him with the protection. It rejected his application, and tacked on the condition that he had to immediately go to jail.
Understanding Private Complaints
This case was an opportunity for the Supreme Court to point out a glaring lack of understanding about criminal law. A criminal complaint to the police and a private complaint are very different. If the police register the case they can investigate and make arrests. A private complaint is a complaint to a judge. In fact, a private complaint doesn’t necessarily involve the police
With a private complaint, someone brings a matter to a magistrate. The magistrate will look at the facts and determine if there is a need to look further. If they believe it is worth looking into, they issue a summons. This is a notice that they should appear in court on a particular date. This isn’t an arrest warrant.
The Arrest Threat Is Unfounded
Justices Pardiwala and Bhuyan explained that an accused person is not in any danger of arrest in a case arising from a private complaint. The police cannot arrest someone in such circumstances. They can only arrest if a non-bailable warrant is issued by the magistrate. Without such a warrant, the police can’t even touch them. The very notion of anticipatory bail is bogus in this case.
The court was surprised at the frequency of these uncalled-for bail applications. They questioned why a person accused of a crime should flee to a superior court for anticipatory bail, when he or she has been issued with a summons. The accused merely needs to turn up on the date and start the trial. There is no reason to fear police action because they are not the prosecutors.
Underlining A Regional Concern
The Supreme Court was not simply considering this one particular case. The judges pointed out a problem that was emerging in particular regions of the country. They pointed out the states of Bihar and Jharkhand as being trouble spots for this legal fallacy. There, courts are granting anticipatory bail against private complaints. The Supreme Court said it couldn’t comprehend why police were taking matters into their hands.
This has led to a huge flood of waste in litigation. Frasers are getting pre-arrest bail in the lower courts. Sometimes that fails and the cases then go to the Supreme Court. The court said it’s a huge waste of court time and energy. They didn’t want this wrong practice to continue any longer.
Police Powers Kept In Check
The judgment also outlined the steps in a magistrate’s inquiry. At times, a judge will be presented with a private complaint but needs more information to issue a summons. The criminal procedure rules allow the judge to request an inquiry by the police and a report. The Supreme Court has made it clear that the police still cannot arrest the accused at that time.
They are merely serving as couriers for the court at that time. They are not supposed to be the police arresting criminals. This interpretation insures against citizens being arrested on the spur of the moment while a private dispute is under investigation. The court reminded police that their power to issue arrest warrants is highly circumscribed and should be exercised carefully.
Sending The Message Downward
The Supreme Court took administrative measures to prevent this error from occurring again. The court asked its registry to transmit the official copy of this case to the High Courts of the respective states. The Registrar Generals of the Patna High Court in Bihar and Jharkhand High Court were both sent the documents. This decision of the Supreme Court was to be sent directly to the Chief Justices of those states.
The aim is to raise awareness among the district and state level judicial officers. The Supreme Court wants the procedures to trickle down to the magistrates by highlighting it to the judges. The court also directed the state lawyers to look into this matter.
