ANDHRA PRADESH HIGH COURT
K. Upender Reddy vs Director General, Acb & Another on 4 April, 2003
SRI JUSTICE BILAL NAZKI MR. V. ESWARAIAH MR G. Pedda Babu
This writ petition has been filed by a practising advocate of this Court in public interest. He wants that Section 19 of the Prevention of Corruption Act, 1988 (for short "the Act") be declared as unconstitutional and violative of Articles 14 and 21 of the Constitution of India. He also wants a direction against the 1st respondent and his subordinate officers that they should not release the public servants who are arrested for commission of offences under Sections 7, 10, 11 and 13 (e)
of the Act on their executing personal bonds and it is violative of Article 14 of the Constitution of India. Counter has been filed. We have heard the learned counsel for the parties. The challenge to Section 19 of the Act has not been seriously advocated and in fact, no arguments were addressed on this count. Section 19 of the Act lays down that in case of prosecution under the Act against public servant, previous sanction of the competent authority mentioned in the provision would be necessary.We are not at present dealing with the challenge to Section 19 of the Act because of the reasons given hereinabove. However, the learned counsel for the petitioner has vehemently argued that when accused persons are arrested for commission of offences under Sections 7, 10, 11 and 13 (e) of the Act, the concerned police officers are bailing them out on their execution of personal bonds which is not permissible under law. This has not been denied in the counter affidavit. However, it is submitted that the powers exercised by any police officer in releasing the accused persons arrested have been provided under the provisions of sub-sections (2) and (4) of Section 437 of the Code of Criminal Procedure (for short "Code"). It was contended by the learned counsel for the respondents that the purpose of the Section 437 of the Code was to enable the police officer as well as Courts to release any person accused or suspected of commission of any non-bailable offence whenever they were arrested or detained without warrant or appeared or brought before a Court. The whole arguments revolve around the interpretation to be placed on Section 437 of the Code. Section 437 of the Code lays down,
"437. When bail may be taken in case of non-bailable offence:- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of Sessions, he may be released on bail, but, -- (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence:
Provided that the Court may direct that a person referred to in clause (i) of clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.
(2) If it appears to such Officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilty, the accused shall subject to the provisions of Section 446A and pending such inquiry, be released on bail, or, at the discretion of such officer of Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary,--
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
(c) otherwise in the interests of justice.
(4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons, for so doing.
(5) Any Court which has released a person on bail under sub-section (1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered."
>From bare perusal of the section it is clear that the power under Section 437 (1) of the Code is only available to a Court other than the High Court or Court of Sessions. This power is not available to any police officer. Section 437 (1) of the Code lays down that when any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of Sessions, he may be released on bail. Then some exceptions are created under this provision. The power under Section 437 (2) of the Code is available to the Officer or also to the Court, but before this power is exercised, the Court or the Officer, as the case may be, should record that there are no reasonable grounds for believing that the accused has committed a non-bailable offence and there are sufficient grounds for further inquiry into his guilt.Therefore if a police officer is satisfied that there are reasonable grounds for believing that the accused has committed a non-bailable offence, he has no power under Section 437of the Code to release the accused on bail.This power is exclusively available to a Court other than the High Court or Court of Sessions.The police officer has the power to release an accused on bail provided he is satisfied that there are no reasonable grounds for believing that the accused has committed a non-bailable offence. This provision will have to be read along with provisions of Sections 57 and 167 of the Code. Section 167 of the Code lays down that an accused person arrested without warrant cannot be detained beyond 24 hours and this Section provides that if the investigation is not completed within 24 hours fixed by Section 57 of the Code, the accused person has to be produced before the Magistrate. Therefore, in our view, Section 437 of the Code does not empower the police officer to release any person accused of, or suspected of, the commission of any non-bailable offence, unless he is satisfied that there are no reasonable grounds for believing that the accused has committed a non-bailable offence. Accordingly we dispose of the writ petition holding that the police officer can release any person accused of, or suspected of, the commission of any non- bailable offence only when the conditions under Section 437 (2) of the Code are met and the power to grant bail to such accused person, where there are no such grounds, is exclusively available to the Court.
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