@JUDGMENTTAG-ORDER
J.B. Koshy, J.@mdashIn
34. Though I am not cancelling the pre-arrest bail granted to the respondent, I am of the view that certain directions are to be issued to prevent such incidents in future. this Court and the Criminal Courts shall follow the following matters while filing the criminal proceedings.
(i) Every pleader appearing for the accused or complainant shall file a memorandum of appearance containing a declaration specified in Rule 31 of the Criminal Rules of Practice. If the pleader is instructed by any person other than the accused,, his name and address shall be stated in the memo itself. If the pleader is appearing for more than one accused/complainant, such details in respect of all accused/ complainants shall be stated in the memo. If necessary, the pleader may file separate memo of appearance for each person. The words which are not necessary shall be scored off,
(ii) If proceedings is filed for and on behalf of person under custody and upon the instruction by a person who claims to represent the person under custody the application shall be accompanied by an affidavit. The deponent shall state that he has been authorised by the applicant/applicants to file the application or proceedings and the applicant/applicants has/have not filed any similar petition for the same relief either before that Court or any other Court and the same is pending. He should also state that during the pendency of that application or proceedings an application for same relief shall be filed either before that Court or any other Court.
(iii) The Registry of this Court as well as the offices of the lower Courts shall at the time of filing of proceedings insist that every application or proceedings filed by a person who is not under custody shall be accompanied by an affidavit sworn to by that person himself. In case there are more than one applicant, each one of them shall file separate affidavits or a joint affidavit sworn to by all persons together in accordance with law.
(iv) The affidavit/affidavits filed shall be in proper form and attested as provided under Rules 37 to 46 of the Criminal Rules of Practice. The affidavit/affidavits shall contain an averment to the effect that the application is filed as per his/their own instructions.
(v) If the petitioner is under legal disability or prevented by sufficient cause, the person who instructs the pleader shall file an application for leave supported by an affidavit as stated in Clauses (iii) and (iv) above.
(vi) The Sessions Judges shall insist for the production of the Case Diary and verify the same before passing orders. The investigating officer shall be directed to file a statement in the proceedings and the same shall form part of the records.
(vii) this Court and Sessions Courts shall communicate copies of the orders to the lower courts concerned forthwith.
(viii) The application for permanent exemption shall be accompanied by a special Vakkalath as provided under Rule 33 of the Criminal Rules of Practice and an affidavit/affidavits sworn to by the applicant/applicants claiming permanent exemption.
(ix) The application or proceedings filed claiming custody objects shall be accompanied by a special Vakkalath as provided under Rule 35 of the Criminal Rules of Practice and also an affidavit/affidavits of the person/persons claiming custody.
2. Direction No. (iii) issued by the learned Judge was that when a person who is not under custody while applying for a pre-arrest bail, commonly called "anticipatory bail", it should be supported by an affidavit. Petitioner in this case filed such a bail application without filing the affidavit from the counsel for the petitioner filed vakalath and contended that the court cannot insist for filing an affidavit along with application for anticipatory bail as no such procedure is prescribed under the Code of Criminal Procedure or Statutory rules. It is further contended that such general directions cannot be issued while considering the facts of a particular case and framing of such a procedure which was not contemplated in Vishnu''s case (supra) is not a binding precedent (sub-silentio). It was also contended that such restrictions cannot be imposed by the Court and is violative of Article 20 (3) of the Constitution of India. The learned Judge who passed the order in his magnanimous judicial approach, found that there is some substance in the points argued by the counsel for the petitioner, but, as the learned Judge cannot review his own decision, the matter was referred to the Division Bench. The learned Judge observed as follows:
After hearing both sides, I am of the view that this Court cannot review its own order rendered in a criminal case. Considering the importance of the matter, that such things recur very frequently, I am of the view that it is only just and proper that a largerBench of this Court considers the matter and take a decision as to whether the directions issued in Vishnu''s case suffer from any infirmity and whether it requires any variation.
Since the matter was of importance to the entire legal profession, notice was issued to the Chairman of the Bar Council of Kerala as well as President of the High Court Advocates'' Association for getting their opinion also. Apart from the counsel for the petitioner, Shri Titus Mani Vettom, we have also heard very detailed arguments of the
Director General of Prosecutions Shri P.V. Madhavan Nambiar on behalf of the State and President of the Kerala Bar Council Shri P.G.Thamby.
3. In Vishnu case, anticipatory bail was already granted and the judgment reported in Vishnu''s case was pronounced in a proceedings initiated suo motu u/s 439 (2) of the Code of Criminal Procedure for cancelling the pre-arrest bail granted to the respondent. According to the petitioner, there was no other issue before the court and ultimately court also did not interfere in the anticipatory bail granted to the party. But, directions issued in paragraph 34 and observations made therein are of very general nature which cannot be made when facts of a particular case alone was before the court. Direction Nos. (i), (viii) and (ix) of paragraph 34 are covered by Rules 31, 33 and 35 of the Criminal Rules of Practice, Kerala. Direction No. (iv) is regarding the form of affidavit as prescribed under Rules 37 to 46 and direction Nos.(vi) and (vii) are only formal directions. Petitioner is very much concerned about direction Nos.(ii), (iii) and (iv). In paragraphs 26 and 30 of the judgment it was observed as follows:
26...A petition for a direction for grant of pre-arrest bail can be filed by a person who has reason to believe that he may be arrested on accusation of having committed a non-bailable offence. When such an application for pre-arrest bail is filed, the person who apprehends arrest is bound to disclose the grounds for his apprehension. Section 438 (3) provides that if such a person to whom the relief of pre-arrest bail granted is subsequently arrested, he shall be released subject to the conditions. The person in whose favour such an order is passed has to execute a bond as ordered by the Court while granting that relief. When the law enjoins that a person who apprehends arrest alone is entitled to file an application, he himself has to instruct his pleader. Since the law mandates that a person apprehending the arrest will have to state the reasons for his apprehension, those statements must be in the form of an affidavit in accordance with Chapter VI of the Criminal Rules of Practice by that person himself. In that affidavit he must also state whether he had moved any other Court on an earlier occasion for the same relief. He must also state that during the pendency of the proceedings he will not approach any other Court for the same relief. If a number of person file one petition, the same shall be accompanied by the affidavit of all the petitioners.
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30. There may be cases in which a person who wants to file a petition or other proceeding before a criminal court may not be able to instruct his pleader because of the legal disability or due to his physical condition. It may become necessary to file petition for and on behalf of a person who is minor, mentally ill or in deep coma. In such contingencies, the law permits a guardian or next friend to move the Court of law for and on behalf of such persons. In such cases, the person who represents the petitioner shall file a petition seeking leave of the Court. That application shall be accompanied by an affidavit explaining the circumstances under which the person who seeks relief is prevented from instructing the pleader. If the Court is satisfied with the genuineness of the claim, it may permit the next friend to prosecute the proceedings.
4. According to the counsel for the petitioner, by issuing these general directions, the learned Judge exercised legislative functions and such directions are issued beyond the powers of the court while considering a suo motu proceedings to cancel a pre-arrest bail granted to a particular person and lis was confined to the facts of that case. Since other points were not in issue, detailed arguments were not placed on that aspect and observations are mere sub silentio and cannot be treated as binding precedent or mandatory directions. learned Counsel also quoted from Salmond on Jurisprudence the following passage:
The rule that a precedent sub silentio is not authoritative goes back at least to 1661 (R. v. Warner (Ward) 1 Keb. 66,1 Lev. 8), when counsel said:
An hundred precedents sub silentio are not material.
and Twisden, J. agreed:
Precedents sub silentio and without argument are of no moment.
This rule has ever since been followed." (at page 154, Twelfth Edition.)
No doubt, the learned single Judge passed the above order because of the rampant malpractices done for obtaining bail by certain culprits as well as members of the legal profession. As noticed by the learned Judge, several instances are noticed wherein applications are filed without the knowledge of the accused. There is possibility of filing bail application with a mala fide intention causing harm to the accused. There are several cases wherein several advocates filed bail applications on behalf of the same accused in the same court as well as in different courts. The President of the Kerala Bar Council who was present in court also submitted that several complaints were received against the advocates for filing bail applications without the knowledge of the accused and other malpractice or in connection with the filing of bail applications. Actions for misconduct against such advocates are also pending in many cases and submitted that it is better to frame clear rules regarding the same.
5. Procedure for filing pre-arrest bail or anticipatory bail applications are prescribed u/s 433 of the Code of Criminal Procedure and Section 437 deals with filing of bail applications by a person who is arrested or detained alleging non-bailable offence. Section 439 also deals with the procedure to be complied with while granting bail applications. Apart from the statutory provisions in the CrPC, Kerala High Court Rules and also Criminal Rules of Practice, Kerala, prescribe procedure for filing applications in criminal court. Rules 30 to 36 of Chapter V of Criminal Rules of Practice, Kerala, deals with appointment of Pleader and a Pleader can attend and plead for a party before a criminal court by filing a memo of appearance in accordance with Rule 31 of Criminal Rules of Practice, Kerala, instead of filing vakkalath. In the memo of appearance, there shall be a declaration by the advocate that he has been duly instructed on behalf of the party whom he claims to represent. Rule 31 of the Criminal Rules of Practice, Kerala reads as follows:
31. Pleader to file memo of appearance: Every pleader as defined in Clause (9) of Section 2 of the Code, other than a Public Prosecutor, appearing either on behalf of the complainant or the accused shall file a memorandum of appearance containing a declaration that he has been duly instructed by, or on behalf of, the party whom he claims to represent.
Explanation: For the removal of doubts it is hereby clarified that Public Prosecutors and Assistant Public Prosecutors when they appear in Abkari cases and other complaints filed by any public servant under any law for the time being in force, need file only a memorandum of appearance containing a declaration that he has been duly instructed to appear in the case by such public servant or complainant, as the case may be.
Rule 32 deals with form of vakkalath. Rule 33 provides for filing of special vakkalath when an accused is being exempted from appearance. Rule 34 requires that for changing the pleader, a written consent of the earlier pleader or, in the absence, permission should be required. By virtue of the powers under Article 227 and 235 of the Constitution of India, Kerala High Court has framed rules. Chapter 13 prescribes procedure to be followed in criminal cases. There are established methods for rule making authority and every statutory rules are framed after due consultation and deliberations and it is finally approved by the Government before publishing in the gazette. Apart from the above, by virtue of powers under Article 227 of the Constitution of India, High Court is issuing circulars prescribing the procedure to be followed when there is lacunae in the rules. Article 227 (2) of the Constitution is as follows:
227. Power of superintendence over all courts by the High Court:
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(2) Without prejudice to the generality of the foregoing provisions, the High Court may -
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
Circulars are issued by the High Court under Article 227 (2) after discussing the matter in threadbare in Full Court meetings of Judges and not on the facts of a particular case or on the exercise of discretionary powers of a learned single Judge on the facts of a particular criminal case.
6. A learned single Judge in Chakkunny v. State of Kerala Crl.M.C. No. 4250 of 2003 and in Alice George v. Deputy Superintendent of Police 2003 (1) KLT 339 gave certain directions to all courts (civil and criminal). Doubting the correctness and power to issue such directions, another learned Judge of the Court referred the matter to the Division Bench. A Division Bench of this Court by judgment dated 5-4-2004 in Crl.M.C.No. 5035 of 2003 held as follows:
...Certain aspects focussed by the learned Judge in A lice George''s case and in Chukkunni''s case certainly need attention. But, before changing the procedure overnight, or directing to follow thoroughly a new pattern, though felt conducive in the interest of justice, it is always necessary to study the pros and cons at depth, putting morel heads together and inviting views of persons in all the segments of the court activity. Earnestness, impartiality, judicial approach, etc. are the advantages of a decision by a court. But, with regard to the principles of procedures of general applications to multifarious situations, it lacks largely the necessary inputs to come to direct conclusions on such general principles; because, the process of the court is, normally, to decide the lis with the help of the parties having views only on the issue agitated. On the principles of general application, there may be more and other views than could be envisaged by the parties in a case of a specific lis, who will be obsessed to a large extent, by the narrow compass of the case. If at all any immediate intervention with regard to the change in the existing policy, pattern or procedure is required, the celebrated tradition of this Court is to give due notice to the Advocate General, the Bar Association, the Bar Council and require the valuable services of eminent senior Advocates, who form the solidified treasure of experience.
Finally, the Division Bench directed as follows:
Therefore, we are of the view that the aspects pointed out by the learned single Judge in Alice George ''s case and Chakkunni''s case requires consideration by the rule making body. The Registry shall bring this matter for consideration of the Honourable the Acting Chief Justice.
On the basis of the above judgment, the Hon''ble Chief Justice constituted a Committee of three Judges and after due deliberations in the Committee the decision was communicated to the Hon''ble Chief Justice and thereafter an official memorandum was issued by the High Court accepting some of the directions issued by the learned Judge.
7. In
17. In view of the above, we are of the opinion that the provisions of Sections 438 and 439 do not call for a restricted interpretation. The citizen has the right to choose. His application should be considered. Each case should be examined on its own merits. If it is found that the ground for grant of bail is not made out, the Court has the full jurisdiction to deny relief. Equally, if a case is made out, the citizen''s liberty should not be allowed to be curtailed.
Another direction issued by the learned single Judge in Usman''s case (supra) held that every application for bail or anticipatory bail must be disposed on the respective courts on the date of receipt of application itself and at any rate such applications should be disposed of within the outer limit of three working days of their filing without fail. In
8. Some of the directions issued by the learned single Judge in Vishnu''s case are covered by the Criminal Rules of Practice, Kerala, and the question is whether an application for bail by the accused in custody or persons apprehending arrest be accompanied by an affidavit as directed in Direction Nos. (ii), (iii) and (v). Can a mandatory rule of procedure be prescribed by the learned single Judge to be followed by all courts while considering facts of a particular case? It is true that in a particular case, a court dealing with application for bail, if satisfied, can insist such conditions on the facts of those cases. A question of law in issue decided by the court after contest shall be followed by the subordinate courts as it constitute a binding precedent, but, general directions of statutory nature cannot be made. Life and liberty of a person is protected under Article 21 of the Constitution and it is a valid right
21. Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.
A procedure prescribed by law is necessary and conditions cannot be prescribed except by law fettering the right to apply for pre-arrest bail. Importance and need of fair procedure established by law is also emphasised in the decision of the Apex Court in
Observations of Courts are neither to be read as Euclid''s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not be interpreted as statutes.
Their Lordships also adhered to several English decisions. In London Graving Dock Co. Ltd. v. Horton 1951 AC 737 at p. 761, Lord Mac Dermot observed:
The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge.
In Home Office v. Dorset Yacht Co. 1970 (2) All.ER 294 Lord Reid said,
Lord Atkin''s speech... is not to be treated as if it was a statute definition. It will require qualification in new circumstances.
Megarry, J. in (1971) 1 WLR 1062 observed:
One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament.
And, in Herrington v. British Railways Board 1972 (2) WLR 537 Lord Morris said:
There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.
In the absence of Statutes or Rules, judicial discretion should be given considering circumstantial flexibility and facts of each case. In each case, if any particulars or affidavits are needed, at the judicial discretion, that can be insisted by the court, but, a mandatory procedure to be followed in all cases cannot be prescribed as that of a statutory rule while considering the facts of a particular case even though some of such directions may be in the best interest of administration of criminal justice and needs immediate attention of the rule making authority.
9. In Ramachandra Rao v. State of Kamataka 2002 (2) KLT 189 SC, a Constitution Bench of the Supreme Court held as follows:
28. Prescribing periods of limitation at the end of which the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused, and further, making such directions applicable to all the cases in the present and for the future amounts to legislation, which, in our opinion, cannot be done by judicial directives and within the arena of the judicial law-making power available to constitutional courts however liberally we may interpret Article 32, 21, 141 and 142 of the Constitution. The dividing line is fine but perceptible Courts can declare the law they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the Legislature. Binding directions can be issued for enforcing the law and appropriate directions may issue, including laying down of time limits or chalking out a calendar for proceedings to follow, to redeem the injustice done or for taking care of rights violated in a given case or set of cases depending on facts brought to the notice of court. This is permissible for judiciary to do. But, it may not, like Legislature enact a provision akin to or on the lines of Chapter XXXVI of the Code of Criminal Procedure, 1973.
The power of the Apex Court under Articles 32, 141 and 142 of the Constitution is also not vested in the High Court. Therefore, we are of the opinion that general directions given in (iii), (iv) and (v) by the learned single Judge as mandatory procedure to be followed by all courts are outside the jurisdiction of the courts even though on the facts of this case, such a direction was warranted. In appropriate cases, on the facts of such case such affidavits can be insisted by the criminal courts. Whether a general direction is to be issued is to be considered by the rule making body. Therefore, no bail application can be rejected by the office at the inception or threshold merely on the ground that it is not accompanied by an affidavit. The Registry is directed to number the bail application and post in the appropriate court.
