{"id":16180,"date":"1999-07-27T00:00:00","date_gmt":"1999-07-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/arun-kumar-singh-vs-state-n-c-t-of-delhi-on-27-july-1999"},"modified":"2016-05-30T23:29:40","modified_gmt":"2016-05-30T17:59:40","slug":"arun-kumar-singh-vs-state-n-c-t-of-delhi-on-27-july-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/arun-kumar-singh-vs-state-n-c-t-of-delhi-on-27-july-1999","title":{"rendered":"Arun Kumar Singh vs State (N.C.T. Of Delhi) on 27 July, 1999"},"content":{"rendered":"
Delhi High Court<\/div>\n
Arun Kumar Singh vs State (N.C.T. Of Delhi) on 27 July, 1999<\/div>\n
Equivalent citations: 1999 VAD Delhi 165, 1999 CriLJ 4021, 81 (1999) DLT 55, II (1999) DMC 483, 1999 (50) DRJ 795, ILR 1999 Delhi 138<\/div>\n
Author: M Siddiqui<\/div>\n
Bench: M Siddiqui<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
M.S.A. Siddiqui, J.<\/p>\n
1.
\n     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?\n<\/p>\n
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
\npetitioner  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.\n<\/p>\n
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
\n167  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
\nStation 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
\nempower  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.\n<\/p>\n
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
\nrelevant 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
\nPolice  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
\nrequires  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
\ncustody.  Thus,  Sections 56 and 57 impose a statutory  obligation  on  the
\npolice to produce the arrested person before a Magistrate.\n<\/p>\n
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
\nauthorises the Court issuing a warrant for the arrest of any person to make
\nthe  warrant  a bailable warrant. Section 72 declares  that  every  warrant issued  by  Magistrate may be executed at any place in  India.  Section 74
\ncontains the general provisions relating to execution of warrants  directed to  police officer. Section 75 deals with the notification of substance  of
\nwarrant.  Section 76 imposes an obligation on the police officer  executing the  warrant  to produce the arrested person before the Court  issuing  it,
\nwithout  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
\nprovides  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-\n<\/p>\n
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:\n<\/p>\n
     “78. Warrant forwarded for execution outside jurisdiction. _<\/p>\n
     (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.\n<\/p><\/blockquote>\n
     (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.”\n<\/p><\/blockquote>\n
     “81. Procedure by Magistrate before whom such person arrested  is  brought. _<\/p>\n
     (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:\n<\/p><\/blockquote>\n
     x  x        x       x      x        x<\/p>\n
     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,
\n     to release such person on bail.\n<\/p><\/blockquote>\n
     X   X   X    X    X”<\/p>\n
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
\nSessions  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
\nalso  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
\ncan  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
\nbefore  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
\nor 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.\n<\/p>\n
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
\nnot  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
\ncriminal  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,
\nit  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
\nchaos and inherent conflict betwixt the comity of Courts. This would inevitably lead to contradictory orders and overlapping jurisdiction.\n<\/p>\n
8.   For the foregoing reasons, the petitioner is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Arun Kumar Singh vs State (N.C.T. Of Delhi) on 27 July, 1999 Equivalent citations: 1999 VAD Delhi 165, 1999 CriLJ 4021, 81 (1999) DLT 55, II (1999) DMC 483, 1999 (50) DRJ 795, ILR 1999 Delhi 138 Author: M Siddiqui Bench: M Siddiqui ORDER M.S.A. Siddiqui, J. 1. The short question is: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-16180","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nArun Kumar Singh vs State (N.C.T. 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