ORDER
M.S.A. Siddiqui, J.
1.
The short question is: whether the second proviso to Section 81 of the Code of Criminal Procedure envisages the grant of bail by the Chief Judicial Magistrate or the Court of Sessions having jurisdiction over the place of arrest to a person arrested by the police without warrant?
2. A few facts must be narrated and the anatomy of the Chapters V and VI of the Code projected at this stage, so that a hang of the controversy may be got and its just resolution sought. On a FIR lodged by the petitioner’s wife Smt. Smita Chaudhary, a case under Sections 498-A/406 IPC was registered against the petitioner at the Police Station Lahori Gate, Delhi. In the course of the investigation that followed, the petitioner was arrested by the Delhi Police in Moradabad and was produced on the same day before the Chief Judicial Magistrate for remand. At the time of arrest, the petitioner was admitted in the Hospital at Moradabad. The petitioner filed an application before the Chief Judicial Magistrate for grant of bail. By the order dated 12.5.99, the Chief Judicial Magistrate granted bail to the
petitioner under Section 81 Cr.P.C.with a direction to appear before the Court concerned after discharge from the hospital. On 25.6.1999, the petitioner filed a petition before this Court for grant of bail under Section 438 Cr.P.C. Thereafter the petitioner filed an amended petitioner (Crl. M. No. 4798/99) in terms of the order dated 28.6.1999 for a direction to the Court concerned to allow the petitioner to remain on bail granted by the Chief Judicial Magistrate, Moradabad.
3. The application has been opposed by the State. Learned counsel appearing for the State Contended that the present case was instituted in Delhi and the investigation started here; that it was the Delhi Police that arrested the petitioner in Moradabad without a warrant of arrest and produced him before the Chief Judicial Magistrate in accordance with Section
167 of the Code. According to the learned counsel, the petitioner was arrested without a warrant of arrest and the Chief Judicial Magistrate, Moradabad is not the court having jurisdiction in the case, he has no jurisdiction to grant the bail to the petitioner under Section 81 of the Code. On the other hand, learned counsel for the petitioner submitted that the Chief Judicial Magistrate, Moradabad has power to grant bail under the Code of Criminal Procedure as a Magistrate having jurisdiction over the place of arrest to release the person on bail. Reliance was sought to be placed on a decision of the Calcutta High Court in Govind Prasad Vs. State of West Bengal (1975 Crl. L.J. 1249). In that case, a criminal case under Sections 406/408/468/471 IPC was registered against the accused at Police
Station Ludhiana. In the course of investigation that followed, the accused was arrested in Calcutta by the Ludhiana Police and was produced on the same date before the Addl. Chief Metropolitan Magistrate, Calcutta. On an application for bail moved on behalf of the accused, Additional Chief Metopolitan Magistrate, Calcutta rejected the prayer for bail and allowed the officer concerned to take the accused away for being produced at the Ludhiana Court. Aggrieved by the said order, the accused moved the High Court by filling an application for bail. Opposing the bail petition, a preliminary objection was raised by the State that inasmuch as the accused was arrested without warrant by the Ludhiana Police in Calcutta, the Calcutta Court has no option but to forward the accused to the Ludhiana Court as the Court having jurisdiction in the case and further the Additional Chief Metropolitan Magistrate, Calcutta has no jurisdiction to admit the accused on bail. Repelling the said contention, it was held that the provisions of Section 78 read with Section 81 of the Code are wide enough to
empower the court having jurisdiction over the place of arrest to grant bail to the accused arrested without a warrant and any circumscribed interpretation thereof would not only be retrograde but also de hors the intention of the legislature. It was further held that the Additional Chief Metropolitan Magistrate and jurisdiction to grant bail as a Magistrate having jurisdiction over the place of arrest to release the person on bail.
4. With the greatest respect, however, I must regret my inability to agree with the same. For a proper consideration of the point at issue ascertaining the intention of the legislature, I will have to consider the
relevant provisions of the Code of Criminal Procedure. The different provisions of Chapter V relating to arrest without warrant in other jurisdiction and of Chapter VI relating to such arrests with warrant are set down in particular order and the same when considered in the background of the provisions of Chapters XII and Chapter XXXIII clearly bring to light the intention of the legislature. Section 41 lays down in what cases a police officer may arrest a person without warrant. Section 55 prescribes the procedure to be followed in these cases when instead of making the arrest himself, the police officer, provided he is an officer in charge of a
Police Station or a police officer making an investigation under Chapter XII of the Code, deputes an officer subordinate to him to do so. Section 56
requires police officer making an arrest without warrant to send such persons to the Magistrate having jurisdiction in the case of the officer in charge of the Police Station, without unnecessary delay. If the offence is a bailable one, the police itself can grant bail. In all other cases in which the offence alleged against the persons arrested is non-bailable, such persons shall be produced before a Magistrate under Section 167 Cr.P.C. Section 57 prohibits the police officer from detaining the arrested person for more than 24 hours. If the investigation cannot be completed within the said period, then accused must be produced before a Magistrate under Section 167 Cr.P.C. who has power to remand such person to judicial
custody. Thus, Sections 56 and 57 impose a statutory obligation on the
police to produce the arrested person before a Magistrate.
5. Sections 70 to 81 collected under sub-heading ‘B-warrant of arrest’ in chapter VI of the Code deal with arrest in execution of warrants issued by a Court under the Code. Section 70 deals with forms of arrest. Section 71
authorises the Court issuing a warrant for the arrest of any person to make
the warrant a bailable warrant. Section 72 declares that every warrant issued by Magistrate may be executed at any place in India. Section 74
contains the general provisions relating to execution of warrants directed to police officer. Section 75 deals with the notification of substance of
warrant. Section 76 imposes an obligation on the police officer executing the warrant to produce the arrested person before the Court issuing it,
without unnecessary delay. Section 78 provides for execution of a warrant issued under Section 70 at a place outside the local limits of the jurisdiction of the court issuing the warrant but within India. Sections 78 of 81 prescribe in detail the procedure to be adopted for execution of warrant outside local limits of the jurisdiction of the Court issuing the same. Section 80 provides that when warrant of arrest is executed outside the District in which it was issued, the person arrested shall be taken before a Magistrate or Commissioner of the District Superintendent. Section 81
provides that such Magistrate or Commissioner or District Superintendent shall, if the person attested appears to a person intended by the Court which issued the warrant, direct his removal in custody to such court. According to the first proviso to Section 81, if the offence is a bailable one, the Magistrate or District Superintendent or Commissioner can grant bail to such person. Under the old Code of Criminal Procedure, a person arrested under Section 83 had to be transported in custody to the Magis-
trate issuing the warrant before he could be released on bail. This caused considerable hardship and inconvenience to the person arrested. To remove considerable hardship and inconvenience, a provision has been made in Section 81 of the new Code conferring power on the courts having jurisdiction over the place of arrest to release the person on bail subject to the provisions of Section 437 Cr.P.C. The relevant provisions of Section 78 and Section 81 are in the following terms:
“78. Warrant forwarded for execution outside jurisdiction. _
(1) When a warrant is to be executed outside the local jurisdiction of the Court issuing it, such Court may, instead of directing the warrant to a police officer within its jurisdiction, forward it by post or otherwise to any Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction it is to be executed; and the Executive Magistrate or District Superintendent or Commissioner shall endorse his name thereon, and if practicable, cause it to be executed in the manner hereinbefore provided.
(2) The Court issuing a warrant under sub-section (1) shall forward, along with the warrant, the substance of the information against the person to be arrested together with such documents, if any, as may be sufficient to enable the Court acting under section 81, to decide whether bail should or should not be granted to the person.”
“81. Procedure by Magistrate before whom such person arrested is brought. _
(1) The Executive Magistrate or District Superintendent of Police or Commissioner of Police shall, if the person arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to such Court:
x x x x x x
Provided further that if the offence is a non-bailable one, it shall be lawful for the Chief Judicial Magistrate (subject to the provisions of Section 437) or the Sessions Judge, of the District in which the arrest is made on consideration of the information and the documents referred to in sub-section (2) of Section 78,
to release such person on bail.
X X X X X”
6. The second proviso to Section 81, as it is worded, does not itself nfer any power on a Court to release the person on bail. It only provides for the release of a person arrested in execution of a warrant issued by the Court under Section 78. To enable such Magistrate or the Court of
Sessions to consider whether bail should or should not be granted to the person arrested in execution of warrant, it has further been provided in sub-Section (2) of Section 78 that the Magistrate issuing a warrant should
also forward along with the warrant, the substance of the information together with relevant documents. Thus the second proviso to Section 81 is limited to the jurisdiction of the Court in the matter of granting bail to a person arrested in execution of a warrant issued under Section 78 of the Code. The context and position of Section 81 in the Code is itself a clear pointer to such limitation. As noticed earlier, Section 81 is laid in Chapter VI of the Code and it is preceded by Section 78 prescribing procedure for execution of warrant outside the jurisdiction of the court issuing the same. As noticed earlier, Section 81 pertains to and provides for the grant of bail, by the Courts having jurisdiction over the place of arrest in cases of arrests of persons in execution of warrants of arrest. The view taken by the Calcutta High Court loses sight of the fact that Section 81
can come into operation only when a police officer makes an arrest of the accused person under Section 78 of the Code. It further loses sight of the context in which Section 81 is laid and the provisions of Chapter XIII embodying the basis rule that the offence shall ordinarily be inquired into and tried by a Court in whose jurisdiction it was committed. Even if the accused is found far beyond the area of crime, he has to be brought back
before the Court having local jurisdiction to try the same. According to Section 177 Cr.P.C., the jurisdiction of a criminal court is governed by the situs of the commission of offence and not by the shady or evasive movements of the offender. It is not that the accused person’s presence would carry the jurisdiction with him to any Court where he may be present
or where he may deliberately have chosen to flee. It is a cardinal principle of criminal jurisprudence that wherever the jurisdiction of the criminal court for trial and inquiry of the offence lies, there alone would lie the jurisdiction for grant of regular or anticipatory bail, unless the stature expressly provides otherwise.
7. As noticed earlier, sub-Section (2) of Section 78 imposes a statutory obligation on the Court issuing the warrant to send the substance of information and documents, if any, to the Court before which the arrested person is to be produced to enable it to decide whether a bail should or should
not be granted. The second proviso to Section 81 confers power on a Chief Judicial Magistrate or a Sessions Judge other than the one having jurisdiction over the area of offence to grant bail after considering the information and documents referred to in sub-Section (2) of Section 78. Thus, it is manifest that power under the second proviso to Section 81 can only be exercised with regard to the warrants of arrest issued under Section 78 and on the basis of documents mandated to be forwarded along with the warrant by sub-Section (2) thereof. The power to grant bail can, therefore, be exercise only within the narrow parameters of Section 81 read with subsection (2) of Section 78. If the aforesaid provisions did not exist on the statute book, then such a power would not vest in the Court other than the one having jurisdiction. Thus, it is obvious that in the context of Section 78(2) and 81, the law has not chosen to give any such enabling power to grant bail to Courts other than one having jurisdiction over the area of the commission of the offence. That being so, unless an express provision exists on the statute book, there is no general power in vacuum in every
criminal court to assume jurisdiction extra territorially. ‘Jurisdiction’ means the extent of the power which is conferred upon a Court by the statute; its exercise cannot be enlarged because an extraordinary situation requires the Court to exercise it. Consequently, the clear mandate of the language of sub-Section (2) of Section 78 and the inherent limitation of jurisdiction under the second proviso to Section 81 cannot be over-ridden by any high flown and doctrinaire considerations. It has to be borne in mind that the functions of the Courts is only to expound and not to legislate. It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. Court cannot rewrite, recast or reframe the legislation. (Union of India Vs. Devki Nandan Aggarwal 1991 AIR SCW 2754; State of Kerala Vs. Mathai Verghese ). Consequently,
it would be impermissible to hold that second proviso to Section 81 is broader in itself as would also govern a case where an accused has not been arrested in execution of warrant under Section 78 of the Code. I am, therefore, of the opinion that the Chief Judicial Magistrate, Moradabad had no jurisdiction to admit the petitioner/accused on bail under Section 81 of the Code. If the Courts are allowed to exercise powers of grant of bail beyond the scope of Section 81 of the Code, it would result in a judicial
chaos and inherent conflict betwixt the comity of Courts. This would inevitably lead to contradictory orders and overlapping jurisdiction.
8. For the foregoing reasons, the petitioner is dismissed.