Supreme Court explains Section 88 of CrPC on Bail Bond [Read judgment]

The Supreme Court has held that the power under Section 88 of the Code of Criminal Procedure to release a person on accepting bond, cannot be claimed as a matter of right by the accused. It is a discretionary power given to the court to facilitate appearance of the person..The judgment was rendered by a Bench of Justices AK Sikri and Ashok Bhushan in an appeal filed by one Pankaj Jain against a judgment of Allahabad High Court..The appellant had been charged with offences under Sections 120-B, 409, 420, 466, 467, 469 and 471 of Indian Penal Code and under Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988..Non-bailable arrest warrants were issued against the appellant when he failed to appear in the trial court (Special Judge, CBI). The appellant then moved the Supreme Court under Article 32 contending that he was not arrested during investigation by the CBI, hence he simply has to surrender and give a bond under Section 88 of the Code of Criminal Procedure..The Supreme Court disposed of the said petition by directing that “it would be open to the petitioner to move an application under Section 88 Cr.P.C. or a bail application, as may be advised.”.The appellant then appeared in the trial court/ Special Judge, CBI and prayed that he must be permitted,.to furnish such bond, as may deemed fit, as per Section 88 of the Cr.P.C without sending him to any prison;.The said prayer was rejected by the trial court whereupon the appellant filed a writ petition in High Court challenging the vires of Section 88. The High Court dismissed the writ petition leading to the present appeal in Supreme Court..Arguments.Senior Advocate Mukul Rohtagi, appearing for the appellant submitted that the appellant having not been arrested during investigation when he appeared before the Special Judge, CBI, it was obligatory on the part of the Court to have accepted the bail bond under Section 88 of the CrPC and released the appellant forthwith. It was submitted that the Court of Special Judge committed error in rejecting the application under Section 88..It was further submitted that bail application was not filed by the appellant since all those, who appeared before the Court were taken into custody and their bail applications were rejected. Importantly, Rohatgi also submitted that although Section 88 uses the word ‘may’, but the word ‘may’ has to be read as shall causing an obligation on the Court to release on bond, those, who appeared on their own volition in the Court..Additional Solicitor General Maninder Singh appearing for the Central government refuted the submission of the appellant contending that Section 88 CrPC has been rightly interpreted by the High Court. He submitted that against the appellant, not only summons but non-bailable warrant and proceedings under Sections 82 and 83 CrPC were also initiated by the Special Judge. Hence, he was not entitled for indulgence of being released on submission of bond under Section 88 CrPC..It was his argument that the Court has discretionary power under Section 88 to release a person on accepting bond, which cannot be claimed as a matter of right by the accused, who has already been summoned and against whom non-bailable warrant has been issued. It was further submitted that although the petitioner-appellant had filed various applications under Section 482 CrPC as well as Special Leave Petitions before the Supreme Court, but he had not filed any bail application before the Special Judge, CBI..Court’s ruling.The Court set out the issue which it needed to address:.“The main issue which needs to be answered in the present appeal is as to whether it was obligatory for the Court to release the appellant by accepting the bond under Section 88 CrPC on the ground that he was not arrested during investigation or the Court has rightly exercised its jurisdiction under Section 88 in rejecting the application filed by the appellant praying for release by accepting the bond under Section 88 CrPC”.Citing various precedents, the Court ruled that Section 88 of the CrPC does not confer any right on any person, who is present in a Court. Discretionary power given to the Court is for the purpose and object of ensuring appearance of such person in that Court or to any other Court into which the case may be transferred for trial..“Discretion given under Section 88 to the Court does not confer any right on a person, who is present in the Court rather it is the power given to the Court to facilitate his appearance, which clearly indicates that use of word ‘may’ is discretionary and it is for the Court to exercise its discretion when situation so demands. It is further relevant to note that the word used in Section 88 “any person” has to be given wide meaning, which may include persons, who are not even accused in a case and appeared as witnesses.”.The Court also held that the judgment of the Punjab & Haryana High Court in Arun Sharma v. Union of India & Ors wrongly applied Section 88 and was hence, bad law..It held that the word ‘may’ used in Section 88 confers a discretion on the Court whether to accept a bond from an accused from a person appearing in the Court or not. It, therefore, upheld the decisions of the trial court and the High Court..Read the judgment below.