Section 88 – Explained.

13. 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 Cr.P.C. 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 Cr.P.C.

14. Section 88 Cr.P.C. is a provision which is contained in Chapter VI “Processes to Compel Appearance” of the Code of Criminal Procedure, 1973. Chapter VI is divided in four Sections – A.-Summons; B.-Warrant of arrest; C.- Proclamation and Attachment and D.-Other rules regarding processes. Section 88 provides as follows:-

88. Power to take bond for appearance. -When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial.

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23. Section 88 of the Cr.P.C. 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 22 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.

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31. We thus conclude 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. The both  Special Judge, C.B.I. as well as the High Court has given cogent reasons for not exercising the power under Section 88 Cr.P.C. We do not find any infirmity in the view taken by the Special Judge, C.B.I. 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 Cr.P.C. We thus do not find any error in the impugned judgment of the High Court.

Party: PANKAJ JAIN … APPELLANT VERSUS UNION OF INDIA & ANR. … RESPONDENTS – CRIMINAL APPEAL NO. 321 OF 2018 – February 23, 2018.

Pankaj Jain vs. U.O.I 1445_2018_Judgement_23-Feb-2018