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HIGH COURT OF ALLAHABAD (L.B.)

AMARAWATI AND ANR


V/S
STATE OF UTTAR PRADESH

Date of Decision: 15 October 2004

Citation: 2004 LawSuit(All) 1386

Hon'ble Judges: M Katju, S K Singh, Sunil Ambwani, Imtiyaz Murtaza, K K Misra,


Poonam Srivastava, Ravindra Singh

Eq. Citations: 2005 CrLJ 755, 2005 (2) RCR(Cri) 159, 2005 (1) RCR(Cri) 159, 2005 (1)
AWC 416, 2004 (57) AllLR 290, 2004 (56) AllLR 390, 2005 (1) Crimes(HC) 44, 2004 (3)
AllCriR 2888, 2004 (3) EastCriC 513, 2005 (1) CurCriR 376, 2005 (2) CriCC 86, 2004
(2) JIC 630

Case Type: Criminal Miscellaneous Applicatio

Case No: 2154 of 1995

Subject: Constitution, Criminal

Acts Referred:
Constitution Of India Art 226, Art 21
Code Of Criminal Procedure, 1973 Sec 44, Sec 482, Sec 41, Sec 439(1), Sec 2, Sec
43, Sec 157(1), Sec 167(2), Sec 42

Advocates: V P Srivastava, S P S Raghav, Satish Trivedi, Viresh Mishra, D S Mishra, P


N Mishra

Reference Cases:
Cases Cited in (+): 502
Cases Referred in (+): 13
Judgement Text:-

Imtiyaz Murtaza, J

[1] This Full Bench is constituted to consider the following questions :

1. Whether the arrest of an accused is a must if cognizable offence is


disclosed in the FIR or in a criminal complaint;

2. Whether the High Court can direct the Subordinate Courts to decide the
Bail Application on the same day it is filed; and

3. Whether the case Dr. Vinod Narain v. State of U.P., Writ Petition No. 3643
of 1992, reported in 1995 (32) ACC 375, has been correctly decided by the
five Judges Full Bench of this Court.

[2] In the case of Dr. Vinod Narain (Writ Petition No. 3643 of 1992), it was held : "For
the reasons recorded separately this Full Bench unanimously holds that in exercise of
power under Article 226 of the Constitution, while issuing direction and command to the
Magistrate or the Court of Sessions as the case may be, to consider the bail application
time schedule for concluding the bail proceedings cannot be fixed. Consequently, the
decision rendered in Dr. Hidayat Hussain Khan v. State of U.P., 1992 Cr LJ 3534, is
overruled and the decision rendered in Writ Petition No. 919 of 1992, Noor Mohd. v.
State of U.P. and others, is upheld."

[3] In the same judgment Hon'ble Palok Basu, J. observed (in Paragraph 183) :

"Once disclosure of cognizable offence is made, arrest of the accused or


suspect is a "must" for there is no other known method by which he may be
brought before the Court for trial. The words "if necessary" in Section 157
may at best make available a discretion to an Investigating Officer in a given
case to defer arresting an accused or suspect if there is reasonable doubt
about his identity. It is not possible to subscribe to the view that the word
'arrest' is made discretionary or that any other connotation may be
extendable than what is noted in the preceding lines."

[4] We have heard Shri V.P. Srivastava, Shri S.P.S. Raghav, Shri Satish Trivedi, Shri
Viresh Mishra, Shri D.S. Mishra and Pt. P.N. Misra, learned Advocates at length and the
learned Government Advocate for the State and have perused the judgment of the Full
Bench passed in Writ Petition No. 3643 of 1992. Dr. Vinod Narain v. State of U.P.

[5] First we shall consider the question, whether the arrest of the accused is a must if a
cognizable offence is disclosed in the FIR or in the complaint.

[6] Article 21 of the Constitution of India guarantees to every man, be he a citizen or a


foreigner, that he shall not be deprived of his life or personal liberty except in
accordance with the procedure established by law. Article 21 states :

"No person shall be deprived of his life or personal liberty except according
to procedure established by law."

[7] It may be mentioned that in AX. Gopalan v. Union of India, AIR 1950 SC 27, it was
held that to deprive a person of life or liberty all that was required was that the
provisions of the IPC and CrPC or some statute are to be followed, but it was not
necessary that those provisions must be reasonable, fair and just. In other words, it was
held in Gopalan's case (supra) that Articles 21 and 19 arc mutually exclusive, and
hence the reasonability test in Article 19 of the Constitution is not to be applied when
testing a law on the anvil of Article 21. Thus Article 21 was construed in Gopalan's case
only as a guarantee against executive action unsupported by statutory law.

[8] However, subsequently in Maneka Gandhi v. Union of India. AIR 1978 SC 597 a
Seven Judges Constitution Bench decision of the Supreme Court overruled the earlier
decision in AX. Gopalan's case (supra) and held that the procedure to deprive a person
of life or liberty must be fair, reasonable and just. Thus the expression "procedure
established by law" in Article 21 has been judicially construed as meaning a procedure
which is reasonable, fair and just. Subsequent to Maneka Gandhi's case in a series of
decisions the Supreme Court has considerably expanded the scope of Article 21 of the
Constitution, and has held that the word 'life' in Article 21 means a life of dignity as a
civilized human being and not just animal survival [vide Francis Coralie Mullin v.
Administrator, 1981 (1) SCC 608; Unnikrishnan v. State of A.P., JT 1993(1) SC 474;
Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 and AIR 1980 SC 1579, etc.].
[9] All the provisions in the CrPC have hence to be construed in accordance with the
new interpretation of Article 21 of the Constitution as laid down in Maneka Gandhi's
case (supra).

[10] It may be mentioned that according to the theory of Jurisprudence of the eminent
jurist Kelsen (The Pure Theory of Law), in the legal system of ever)1 country there is a
hierarchy of laws and if there is conflict between a higher law and a lower law then the
higher law will prevail (sec Kelscn's The General Theory of Law and State). In our
Constitution the hierarchy is as follows :

1. The Constitution of India.

2. Statutory Law, which may either be made by Parliament or by the State


Legislature.

3. Delegated or subordinate legislation e.g. rules made under a statute,


regulations made under a statute, etc.

4. Government Orders, Executive and Administrative Instructions, etc.

[11] The IPC and CrPC arc in the second layer of this hierarchy of laws in our legal
system, and hence if any provision of the IPC or CrPC seems to violate the provisions in
the Constitution it will either be declared void or will be construed in such a manner as
to be make it consistent and in conformity with the constitutional provisions.

[12] When proceeding to discuss the relevant provisions in the CrPC we must keep the
above considerations in mind.

[13] There are various sections in Chapter" V of the Code of Criminal Procedure entitled
"Arrest of Persons" of which Sections 41, 42, 43 and 44 empower different authorities to
arrest a person in a given situation. Section 41 deals with the power of a police officer to
arrest any person without an order from a Magistrate and without a warrant.

[14] Section 41 of Code of Criminal Procedure reads as under :

"41. When police may arrest without warrant.-(1) Any police officer may
without an order from a Magistrate and without a warrant, arrest any
persons.

(a) who has been concerned in any cognizable offence, or against whom a
reasonable complaint has been made, or credible information has been
received, or a reasonable suspicion exists, of his having been so concerned;
or

(b) who has in his possession without lawful excuse, the burden of proving
which excuse shall lie on such person, any implement of house-breaking; or

(c) who has been proclaimed as an offender cither under this Code or by
order of the State Government; or

(d) in whose possession anything is found which may reasonably be


suspected to be stolen property and who may reasonably be suspected of
having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who
has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed
Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint
has been made, or credible information has been received, or a reasonable
suspicion exists, of his having been concerned in, any act committed at any
place out of India which, if committed in India, would have been punishable
as an offence, and for which he is, under any law relating to extradition, or
otherwise, liable to be apprehended or detained in custody in India; or

(h) who being a released convict, commits a breach of any rule made under
sub-section (5) of Section 365; or
(i) for whose arrest any requisition, whether written or oral, has been
received from another police officer, provided that the requisition specified
the person to be arrested and the offence or other cause for which the arrest
is to be made and it ' appears therefrom that the person might lawfully be
arrested without a warrant by the officer who issued the requisition.

(2) Any officer-in-charge of a police station may, in like manner, arrest or


clause to be arrested any person, belonging to one or more of the categories
of persons specified in Section 109 or Section 110.

[15] Section 2(c) of the Code of Criminal Procedure defines the cognizable offence:

"2(c) "cognizable offence" means an offence for which, and "cognizable


case" means a case in which, a police officer may, in accordance with the
First Schedule or under any other law for the time being in force, arrest
without Warrant."

[16] The definition of cognizable offence clearly indicates that police officer may "arrest
without warrant" and not that he must arrest.

[17] Section 157(1),CrPC provides "If, from information received or otherwise, an


officer-in-charge of a police station has reason to suspect the commission of an offence
which he is empowered under Section 156 to investigate, he shall forthwith send a
report of the same to a Magistrate empowered to take cognizance of such offence upon
a police report and shall proceed in person, or shall depute one of his subordinate
officers not being below such rank as the State Government may, by general or special
order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and
circumstances of the case, and, if necessary to take measures for the discovery and
arrest of the offender. "

[18] In none of the sections the word 'shall' has been used. In Pramod Kumar v. Sadhna
Ram, 1989 Cr LJ 1772, a Division Bench of this Court has interpreted the word 'may'
and 'shall' and observed in Paragraph 22 of the judgment as under :

"In view of the intentional use of the word 'may' in such sub-section (1) of
Section 437, CrPC and of the word 'shall' in three of its sub-sections, then
again using the word 'shall1 in Section 436 and the word 'may' in Section
439 we cannot but hold that the Legislature has consciously made distinction
in choosing the respective verbs in the various . provisions. It has used the
auxiliary verb 'shall' where it desired the provisions to be mandatory and has
used 'may' where it wanted the martter to be left to judicial discretion."

[19] The word 'may' in Section 41 of Code of Criminal Procedure cannot, therefore, be
interpreted as 'must' or 'shall'.

[20] In Joginder Kumar v. State of U.P. and others, 1994 Cr LJ 1981, the Supreme
Court observed :

"No arrest can be made because it is lawful for the police officer to do so.
The existence of the power to arrest is one thing. The justification for the
exercise of it is quite another. The police officer must be able to justify the
arrest apart from his power to do so. Arrest and detention in police lock-up of
a person can cause incalculable harm to the reputation and self esteem of a
person. No arrest can be made in a routine manner on a mere allegation of
commission of an offence made against a person. It would be prudent for a
police officer in the interest of protection of the constitutional rights of a
citizen and perhaps in his own interest that no arrest should be made without
a reasonable satisfaction reached after some investigation as to the
genuineness and bonafides of a complaint and a reasonable belief both as
to the person's complicity and even so as to the need to effect arrest."

[21] In view of the above discussion and the observations made by the Apex Court in
the case of Joginder Kumar (supra), the observations made by Hon'ble Palok Basu, J.
in the case of Dr. Vinod Narain (supra) in Paragraph 183 that once disclosure of
cognizable offence is made, arrest of the accused or suspect is a "must" are incorrect
and the said decision has not laid down the correct law.

[22] The second question referred to this Bench is whether the High Court can direct the
Subordinate Courts to decide the bail application on the same day it is filed.

[23] Chapter XXXIII of the Code of Criminal Procedure deals with the provisions as to
bail and bonds.
[24] The provisions for granting bail by the Magistrate are provided in Section 437,
CrPC which reads as under:

"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 Session, he may be released on bail, but-

(i) such person shall not be so released if there appear reasonable ground
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 nonbailable
and cognizable offence :

Provided that the Court may direct that a person referred in clause (i) or
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 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."

[25] The provisions for granting bail by the Sessions Judge is provided in Section 439,
CrPC which reads as under:

"439. Special powers of High Court or Court of Session regarding bail.-{1) A


High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on
bail, and if the offence is of the nature specified in sub-section (3) of Section
437, may impose any condition which it considers necessary for the
purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any persons
on bail be set aside or modified :

Provided that the High Court or the Court of Session shall, before granting
bail to a person who is accused of an offence which is triable exclusively by
the Court of Session or which, though not so triable, is punishable with
imprisonment for life, give notice of the application for bail to the Public
Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it
is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has
been released on bail under this Chapter be arrested and commit him to
custody."

[26] A perusal of the above-mentioned sections for bail indicate that whereas in Section
437, CrPC there is no provision for any notice of the application for bail to the Public
Prosecutor, in Section 439, CrPC however it is specifically mentioned that before
granting bail to a person notice of the application for bail to the Public Prosecutor is
required, unless for reasons to be recorded in writing, the Court is of opinion, that it is
not practicable to give such notice.

[27] In Section 437, CrPC the provision for notice is not given because there are
specific provisions under the Code of Criminal Procedure which provide that all the
relevant material relating to the case is produced or available before the Magistrate.
Thus Section 157, CrPC provides that an officer-in-charge of the police station shall
forthwith send a report of the same to a Magistrate who is empowered to take
cognizance of the offence. In Section 167, CrPC it is provided that "whenever any
person is arrested and detained in custody, and it appears that the investigation cannot
be completed within the period of twenty-four hours fixed by Section 57 and there are
grounds for believing that the accusation or information is well-founded, the officer-in-
charge of the police station or the police officer making the investigation, if he is not
below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial
Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case,
and shall at the same time forward the accused to such Magistrate".

[28] Section 173(5) provides that when the police report is in respect of a case to which
Section 170 applies the police officer must forward to the Magistrate the documents
mentioned therein.

[29] Section 437, CrPC applied to relatively minor offences where the punishment
provided is not life sentence or death. In our opinion any application for bail under
Section 437, CrPC should ordinarily be decided by the Magistrate the same day, except
in rare cases where reasons shall be recorded in writing for adjourning the hearing of
the bail application. We think it necessary to lay down this guideline in respect of such
applications under Section 437 in view of (i) there being no provision for giving notice to
the Public Prosecutor, as is required for applications under Section 439(2) and Article
21 of the Constitution, which has been given a very wide interpretation in a series of
decisions of the Supreme Court, referred to above.

[30] There is no doubt that now-a-days often false and frivolous first information reports
are lodged against even respectable persons of society, and if such respectable
persons have to be arrested on the basis of such false and frivolous FIRs/complaints it
will certainly result in incalculable harm to their reputation and self-respect.

[31] In Joginder Kumar's case (supra) the Supreme Court has observed "arrest and
detention in police lock-up of a person can cause incalculable harm to the reputation
and self-esteem of a person". In the Gita Lord Krishna said to Arjun :

laHkkforL; pkdhfrZ ej.knfrfjP;rs

which means "for a self-respecting man, death is preferable to dishonour".


(See Gita 2: 34).

[32] In our country unfortunately whenever an FIR of a cognizable offence is lodged the
police immediately goes to arrest the accused. This practice in our opinion is illegal as it
is against the decision of the Supreme Court in Joginder Kumar's case, and it is also in
violation of Article 21 of the Constitution as well as Section 157(1), CrPC gives a police
officer discretion to arrest or not, but this discretion cannot be exercised arbitrarily, and it
must be exercised in accordance with the principles laid down in Joginder Kumar's case
(supra). The view of Hon'ble Palok Basu, J. in this connection is hence clearly incorrect.

[33] It may be mentioned that the provision for anticipatory bail has been deleted by an
amendment in U.P. It is well known that in U.P. criminal trials often take five years or
sometimes even more to complete, and hence the question arises is that if an accused
is found innocent after this long interval who will restore these five years or so of life to
him if he is not granted bail?

[34] It may be mentioned that a person's reputation and esteem in society is a valuable
asset, just as in civil law it is an established principle that goodwill of a firm is an
intangible asset. In practice, if a person applies for bail he has to surrender in Court, and
normally the bail application is put up for hearing after a few days and in the meantime
he has to go to jail. Even if he is subsequently granted bail or is acquitted, his reputation
is irreparably tarnished in society. Often false and frivolous FIRs arc filed yet the
innocent person has to go to jail, and this greatly damages his reputation in society. For
instance, as observed by the Supreme Court in Karis Raj v. State of Punjab, 2000 Cr LJ
2993 (vide Para 5), a tendency has developed of roping in all relations of the in-laws of
the deceased wife in matters of dowry death. All these factors must be kept in mind by
the Court particularly after the promulgation of the Constitution, which has embodied the
right to liberty as a valuable fundamental right in Article 21 of the Constitution of India.

[35] We may now consider the provisions of Section 439, CrPC (as quoted above)
which deal with the bail application before the High Court and Court of Sessions.

[36] It may be noted that there is a very important difference between Sections 437 and
439 inasmuch as there is no requirement of giving notice to the Public Prosecutor in
Section 437 but there is such a requirement in the proviso to Section 439(1). Obviously
this difference was made by Parliament in its wisdom because it was felt that the cases
before the Court of Sessions are more serious as compared to the cases before the
Magistrate which may be petty ones.

[37] What is important to note is that the proviso to Section 439(1) does not prescribe
the period of the notice and leaves it to the discretion of the Judge. This may be
contrasted to Section 407(5), CrPC which reads as follows :
"Every accused person making such application shall give to the Public
Prosecutor notice in writing of the application, together with a copy of the
grounds on which it is made; and no order shall be made on the merits of the
application unless at least twenty four hours have elapsed between the
giving of such notice and the hearing of the application."

[38] The fact that in the same statute in one provision the period of the notice has been
prescribed, while in another provision it has not indicates that Parliament in its wisdom
has left it to the discretion of the Court where such period has not been prescribed to
regulate its proceedings and determine in its own discretion what reasonable period
should there be between giving of the notice and hearing of the bail application under
Section 439.

[39] In Ramesh Chandra Kapil v. High Court of Judicature at Allahabad, 1984 UPCR
159, the Court referred to the Latin Maxim 'CURSUS CURLAF LEX CURAE' which
means "every Court is the guardian of its own records and of its practice".

[40] There may be cases, for instance, where a totally false and frivolous FIR has been
filed against a judicial or administrative officer or a reputed citizen merely because of
enmity or to damage his reputation or to black-mail him. If the hearing of the bail
application is adjourned even for a few days he will have to remain in jail and his
reputation may be irreparably tarnished, even if subsequently he is granted bail. In our
opinion the learned Judge hearing the bail application, in his discretion, may in such a
case give a very short time for the hearing after notice is given to the Public Prosecutor,
and he may, in his discretion hear the bail application under Section 439 on the same
day when it is filed. After all, giving notice merely means giving copy of the bail
application to the Public Prosecutor so that he may have an opportunity to be heard in
reply and place the material facts before the Court. There may be cases where the
learned Judge hearing the bail application under Section 439 may, if he chooses, give a
very short time to the Public Prosecutor after the bail application is filed and notice is
given, and do the hearing the same day only after a short time of giving of the notice.
The learned Judge can always get the record from the Court of the learned Magistrate
where the entire papers are already available. Also, sometimes it may not be practicable
to give notice at all and for this purpose the hearing can be done after recording reasons
for waiving the notice, as mentioned in the proviso of Section 439(1). On the other hand,
there may be cases where the learned Judge may feel that in view of the seriousness of
the offence or other facts a longer time should be given to the Public Prosecutor before
hearing the bail application. In all such cases in our opinion the matter should be left to
the discretion of the learned Judge hearing the bail application and a direction for
deciding the bail on the same day should not ordinarily be given by this Court as that
would be interfering in his discretion.

[41] We again make it clear that the learned Sessions Judge in his discretion can hear
and decide the bail application under Section 439 on the same day of its filing provided
notice is given to the Public Prosecutor, or he may not choose to do so. This is entirely a
matter in the discretion of the learned Sessions Judge. There may also be cases where
the learned Sessions Judge on the material available before him may decide to grant
interim bail as he may feel that while he has sufficient material for giving interim bail he
requires further material for grant of final bail. In such cases also he can in his
discretion, grant interim bail and he can hear the bail application finally after a few days.
All these are matters which should ordinarily be left to his discretion.

[42] As regards power to grant interim bail we agree with the view of the Hon'ble B.M.
Lal, J in Dr. Vinod Narain's case (supra) that such power is implicit in the power to grant
bail, and we disagree with the view expressed by Hon'ble Palok Basu, J. in the
aforesaid decision. The view we are taking would make the provisions for grant of bail in
the CrPC in conformity with Article 21 of the Constitution, particularly since the provision
for granting anticipatory bail has been deleted in U.P.

[43] It may be mentioned that the Supreme Court in A.R. Antulay v. U.S. Nayak, (1992)
1 SCC 225 and Raj Deo Sharma v. State of Bihar, (1998) 7 SCC 507. has held that the
right of speedy justice is a fundamental right as envisaged under Article 21 of the
Constitution. The interpretation we arc giving above to the provisions in the CrPC arc
hence in conformity with Article 21 of the Constitution as interpreted by the Supreme
Court.

[44] We may also examine Section 167, CrPC Section 167(2) of Code of Criminal
Procedure provides :

"167. Procedure when investigation cannot be completed in twenty-four


hours.-(1). (2) The Magistrate to whom an accused person is forwarded
under this section may, whether he has or has not jurisdiction to try the case,
from time to time, authorise the detention of the accused in such custody as
such Magistrate thinks fit, for a term not exceeding fifteen days in the whole;
and if he has no jurisdiction to try the case or commit it for trial, and
considers further detention unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction :

Provided that.

(a) the Magistrate may authorise the detention of the accused person
otherwise than in the custody of the police beyond the period of fifteen days,
if he is satisfied that adequate grounds exist for doing so. but no Magistrate
shall authorise the detention of the accused person in custody under this
Paragraph for a total period exceeding-

(i) ninety days, where the investigation relates to an offence punishable with
death, imprisonment for life or imprisonment for a term of not less than ten
years;

(iii) sixty days, where the investigation relates to any other offence, and, on
the expiry of the said period of ninety days, or sixty days, as the case may
be, the accused person shall be released on bail if he is prepared to and
docs furnish bail, and every person released on bail under this sub-section
shall be deemed to be so released under the provisions of Chapter XXXIII
for the purpose of that Chapter;

(b) no Magistrate shall authorise detention in any custody under this section
unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf
by the High Court, shall authorise detention in the custody of the police.

Explanation I-For the avoidance of doubts, it is hereby declared that,


notwithstanding the expiry of the period specified in Paragraph (a) the
accused shall be detained in custody so long as he does not furnish bail.

Explanation II-If any question arises whether an accused person was


produced before the Magistrate as required under Paragraph (b) the
production of the accused person may be proved by his signature on the
order authorising detention."

[45] This section provides that if the investigation is not completed within the stipulated
period of ninety days, or sixty days as the case may be, after the expiry of this period,
the Magistrate shall be bound to release an accused on bail if he is prepared to and
does furnish bail.

[46] It further provides that every person released on bail under this sub-section shall be
deemed to be so released under the provisions of Chapter XXXIII for the purposes of
that Chapter. The right to apply for bail under this provision expires as soon as the
charge-sheet is filed. In case after the expiry of the stipulated period the applicant
moves a bail application for his release and the said application is not decided the same
day then the accused is deprived of his valuable right, and this, in our opinion, would
violate Article 21 of the Constitution. In Section 167 there is no provision for giving any
notice to the Public Prosecutor. In such a situation the Magistrate should decide the bail
application on the same day it is filed. In the case of A.R. Antuley (supra) it has been
held that the right to speedy trial flowing from Article 21 encompasses all the stages,
namely, the stage of investigation, inquiry, trial, appeal, revision and retrial. This
includes the expeditious disposal of the bail application also.

[47] In view of the above we answer the questions referred to the Full Bench as follows :

(1) Even if cognizable offence is disclosed, in the FIR or complaint the arrest
of the accused is not a must, rather the police officer should be guided by
the decision of the Supreme Court in Joginder Kumar v. State of U.P., 1994
Cr LJ 1981. before deciding whether to make an arrest or not.

(2) The High Court should ordinarily not direct any Subordinate Court to
decide the bail application the same day, as that would be interfering with
the judicial discretion of the Court hearing the bail application. However, as
stated above, when the bail application is under Section 437. CrPC ordinarily
the Magistrate should himself decide the bail application the same day, and
if he decides in a rare and exceptional case not to decide it on the same day,
he must record his reasons in writing. As regards the application under
Section 439, CrPC it is in the discretion of the learned Sessions Judge
considering the facts and circumstances whether to decide the bail
application the same day or not, and it is also in his discretion to grant
interim bail the same day subject to the final decision on the bail application
later.

(3) The decision in Dr. Vinod Narain v. State of UP. (supra) is incorrect and
is substituted accordingly by this judgment.