Acceptance of bail bond a discretionary power of court: SC

NEW DELHI: The acceptance of a bail bond furnished by an accused in the court is the discretionary power of the judge and does not confer any express right on the person for release, the Supreme Court held on Friday.
The top court said that section 88 of the CrPC was for the purpose and object of ensuring appearance of such person in that court or any other in which the case may be transferred for trial.

The section says that when any person, for whose appearance or arrest the presiding officer of the court is empowered to issue a summon or warrant, is present, such officer may require such person to execute a bond, with or without sureties, for his appearance in the court or any other court to which the case may be transferred.

A bench of Justices A K Sikri and Ashok Bhushan said 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.

"Section 88 of 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 said.

The court's verdict came on a plea filed by an accused Pankaj Jain in a case under Prevention of Corruption Act, that also involves Yadav Singh, former Chief Engineer of Noida, Greater Noida and the Yamuna Expressway Authorities.

Jain, who is partner in a construction company that is also accused in the case, said he had filed a bail bond under section 88 of CrPC before the Special CBI court in Ghaziabad and sought his release but the application was rejected. He moved against the decision before the high court which also dismissed his appeal, following which he moved the apex court challenging the provision itself.

Jain has contended that he had not been arrested during the investigation and when he appeared before the Special CBI Judge, it was obligatory on the part of the court to have accepted the bail bond under Section 88 of the CrPC and release him forthwith.

He said 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.

The government, on other hand, had contended that high court and special CBI judge had rightly interpreted the provision and said that summons and non-bailable warrants were issued against Jain.

It was argued that even the proceedings to declare him proclaimed offender were also initiated by the Special Judge and hence, he was not entitled for indulgence of being released on submission of bond under Section 88 CrPC.

The bench said "the present is not a case where accused was a free agent whether to appear or not. He was already issued non-bailable warrant of arrest as well as proceeding of Sections 82 and 83 CrPC (proceedings for proclaimed offender) had been initiated. In this view of the matter he was not entitled to the benefit of Section 88 CrPC".

Concluding its reasons, the apex court said 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 said that both Special CBI Judge, as well as the High Court had given cogent reasons for not exercising the power under Section 88 CrPC. "We do not find any infirmity in the view taken by the Special Judge, CBI as well as the High Court in coming to the conclusion that accused was not entitled to be released on acceptance of bond under Section 88 CrPC. We thus do not find any error in the impugned judgment of the High Court," it said.

It asked Jain to approach the Special CBI court for bail and directed the trial court to consider the application of bail if filed.