LexSUNDEEP KUMAR BAFNA versus STATE OF MAHARASHTRA & ANR.
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A B [2014] 4 S.C.R. 486 SUNDEEP KUMAR BAFNA v. STATE OF MAHARASHTRA & ANR. (Criminal Appeal No. 689 of 2014) MARCH 27, 2014 [K.S.RADHAKRISHNAN AND VIKRAMAJIT SEN, JJ.] CODE OF CRIMINAL PROCEDURE, 1973: c s. 439 - Bail - Case triable by Court of Session - Power of Court of Session and High Court to grant bail till committal of case to Court of Session - Held: There is no provision in Cr. P. C. or elsewhere, curtailing the power of either of superior courts to entertain and decide pleas for bail - A substantial 0 period may inevitably intervene between a Magistrate taking cognizance of an offence triable by Court of Session and its committal to such court - During this interregnum, s. 439 can be invoked for purpose of pleading for bail - Since severe restrictions have been placed on power of Magistrate to grant bail to a person accused of an offence punishable by death E or imprisonment for life, a superior court such as Court of Session, should not be incapacitated from considering a bail application especially keeping in perspective that its powers are comparatively unfettered uls 439 - In the instant case, offence had already been committed to Court of Session - F Applicant prayed for surrender to High Court and for grant of bail - Single Judge erred in law in holding that he was devoid of jurisdiction so far as application presented to him by appellant was concerned - Once prayer for surrender is accepted, appellant would come into custody of court within G contemplation of s. 439 - Impugned order is, accordingly, set aside - Single Judge shall consider appellant's plea for surrendering to court and grant of bail - Constitution of India, 1950 - Art. 21. H 486 SUNDEEP KUMAR BAFNA v. STATE OF MAHARASHTRA CRIMINAL LAW: 487 Expressions, 'arrest', 'custody' and 'detention' - Explained A - Held: The terms 'custody', 'detention' or 'arrest' have not been defined in CrPC - However, an analysis of case law indicates that these are sequentially cognate concepts- B 'Custody' and 'arrest' are not synonyms even though in every arrest there is custody but not vice versa. ADMINISTRATION OF JUSTICE: Role of Public Prosecutor and hearing to complainant! C informant/ aggrieved party - Held: The role of Public Prosecutor is to uphold the law and put forth a sound prosecution - Presence of a private lawyer would inexorably undermine fairness and impartiality which must be hallmark, attribute and distinction of every proper prosecution - No D vested right is granted to a complainant or informant or aggrieved party to directly conduct a prosecution - Constant or even frequent interference in prosecution should not be encouraged as it will have a deleterious impact on its impartiality - However, where Magistrate or Sessions Judge E is of the opinion that prosecution is likely to fail, prudence would prompt that complainant or informant or aggrieved party be given an informal hearing. PRECEDENT: Expression, 'per incuriam' - Explained - Held: It is necessary to give a salutary clarion caution to all courts, including High Courts, to be extremely careful and circumspect in concluding a judgment of Supreme Court to F be per incuriam - An earlier judgment cannot be seen as G per incuriam a later judgment as the latter if numerically stronger only then it would overrule the former- In the instant case, in the impugned order, single Judge of High Court followed incorrect and misleading editorial note in the cited law journal without apprising himself of the context in which H 488 SUPREME COURT REPORTS [2014] 4 S.C.R. A Rashmi Rekha was wrongly reported to hold Niranjan Singh per incuriam - Rashmi Rekha dealt with anticipatory bail ul s 438, Cr. P. C. and only tangentially with ss. 437 and 439, Cr. P. C. - In the factual matrix of the instant case, Niranjan Singh is the precedent of relevance and not Gurbaksh Singh B Sibbia nor any other decision where the scope and sweep of anticipatory bail was at the fulcrum of the conundrum - Law reporting. WORDS AND PHRASES: C Expressions, 'custodey', 'detention' and' arrest' - I Connotation of. The Supreme Court, while dismissing the appellant's petition for special leave to appeal against the order of D the High Court rejecting his application for anticipatory bail in a case triable by Court of Session, granted him protection from arrest for four weeks so as to enable him to apply for regular bail. According
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