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Written By: Vishad Srivastava

The Supreme Court has held that the power under Section 88 of the Code of Criminal Procedure to release a person on accepting the bond, cannot be claimed as a matter of right by the accused. It is a discretionary power given to the court to facilitate the appearance of the person. Section 88 holds that when any person for whose appearance or arrest the judge is empowered to issue a summons or warrant, is present in court, the judge may require the person to execute a bond, with or without sureties, for his appearance in the court.A bench of Justices A K Sikri and Ashok Bhushan maintained that the word ‘may’ did not cast a duty upon the judicial officer to release the accused on bail after accepting the bond, but the term ‘may’ in fact give a discretion to the judge to decide for or against the release.The order came as it upheld orders by a CBI judge and the Allahabad High Court in dismissing the bail application of Pankaj Jain, a partner in a construction firm who is a co-accused in a corruption case involving former Chief Engineer of Noida, Yadav Singh. The former chief engineer was found guilty of amassing assets that were disproportionate to his known sources of income.  Senior Advocate Mukul Rohtagi, appearing for the appellant submitted that the appellant having not been arrested during the 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 an 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’, 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 to 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 to the 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 the bond, which cannot be claimed as a matter of right by the accused, who has already been summoned and against whom a 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, he had not filed any bail application before the Special Judge, CBI. 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.Section 88 of the Code is only applicable to persons who are present in Court but not the persons at houses to compel them to execute bonds for an appearance in Court with or without sureties where an accused is already in custody, section 88 has no application.Section 88 indicates that if a person is present in a Court in connection with a case or otherwise and the officer presiding the Court is entitled to issue summons or warrant to secure his presence, then he may direct that person to execute a bond for his presence in his Court on a later date or to secure his presence in some other Court notwithstanding the fact that his presence on the Court, at the relevant time is not in connection with that case for which he is being bound over.It means that if a person required to be arrested or detained in connection with some other case either before him or elsewhere is present, in his Court, then the presiding officer in whose Court he is present, has the power to issue warrant calling him to execute bond for his appearance in future.


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