Research › Browse › Judgment

Patna High Court · body

1983 DIGILAW 326 (PAT)

Bhola Lal v. State of Bihar

1983-12-05

P.S.MISHRA

body1983
ORDER : Heard, learned counsel for the petitioner and learned counsel for the State on the question as to whether this application, being an application for anticipatory bail in relation to a case registered by the Police in the town of Chas, in the district of Dhanbad, can be entertained at Patna. 2. By ORDER :dated 25.11.1983, a Bench of this Court, while accepting the filing of this application, has ORDER :ed that the question whether the application is entertainable at patna or not shall be considered at the time of admission. When this case was posted for admission before me on 30.11.1983, learned counsel for the petitioner prayed for time to make himself ready On this question. Today this application has again been placed for admission, and as stated above, learned counsel representing their respective clients have been heard. 3. Learned counsel for the petitioner has taken me through various provisions of the. Code of Criminal Procedure, the relevant provisions of the High Court at Patna (Establishment of a Permanent Bench" at Ranchi Act, 1976 (hereinafter to be referred to as the 'Act') and the authorities, particularly the JUDGMENT : of the Supreme Court reported in Sri Nasiruddin vs. State Transport Appellate Authority (AIR 1976 Supreme Court 331). Moat of the provisions and the discussions in the authorities cited by the learned counsel for the petitioner, in my opinion, do not concern the question in this case as to the jurisdiction of the 'Bench of this Court at Patna to entertain an application for anticipatory bail if it is in respect of a case arising within the jurisdiction of Ranchi Bench. However, two JUDGMENT : one of the Delhi High Court and the other of the Calcutta High Court in Pritam Singh vs. State of Punjab (1980 Criminal Law Journal 1174) and B.R. Sinha and others vs. The State (1982 criminal Law Journal (1) respectively and a JUDGMENT : of Muneshwari Sahay, J. (as he then was) in Cr.Misc. No. 2111 of 1977 (Nand Kishore Singh vs. State of Bihar) disposed on 16.8.1977 and, another JUDGMENT : of Nagendra Pd. Singh's in Cr.Misc. No. 2111 of 1977 (Nand Kishore Singh vs. State of Bihar) disposed on 16.8.1977 and, another JUDGMENT : of Nagendra Pd. Singh's in Cr.Misc. No. 9663 of 1983 (Rabindra Singh and another vs. State of Bihar) disposed of on 11.10.1983 appear to be relevant and I shall prefer to confine my considerations to there cases and the provisions of section 438 of the Code of Criminal Procedure, 1973 and section 2 of the Act creating the Ranchi- Bench and the Rules framed by this Court in respect of the applications to be filed at Patna and at Ranchi. 4. The Act while establishing a permanent. Bench of this Court at Ranchi says that the Bench at Ranchi shall exercise jurisdiction and power for the time being vested in the High Court in respect of cases, arising in the districts of Hazaribagh, Giridih, Danbad, Ranchi, Palamau and Singbhum and gives discretion to the Chief Justice to ORDER :for any case or class of cases arising in any such district to be heard at Patna. In a manner of speakimg, one may have a prima-facie apprehension that even an application for anticipatory bail cannot be filed before the Patna Bench of Criminal Procedure, 1973, making provision for anticipatory bail, many courts found applications for anticipatory bail filed before them in connection with the cases or arising from the cases not falling within their territorial jurisdiction, but arising from the case filed within the jurisdiction of the sister High Courts. Provisions as contained in section 438 of the Code of Criminal Procedure were Sometimes closely examined and invariably applied by such High Court in favour of the petitioners. In one such case before this Court, Muneshwari Sahay, J. (as he then was) answering a contention that this Court shall have no jurisdiction to grant anticipatory bail if the Case in which the petitioner is likely to be arrested is one arising within the jurisdiction of the Delhi High Court, said in Cr.Misc. No. 2111 of 1977 "I am unable to read any such limitation in the wordings of section 438 the Code which could affect the jurisdiction of his Court to grant the relief prayed for by the petitioner. No. 2111 of 1977 "I am unable to read any such limitation in the wordings of section 438 the Code which could affect the jurisdiction of his Court to grant the relief prayed for by the petitioner. The petitioner apprehends that he is likely to be arrested on charge having committed a cognizable offence within the jurisdiction of this Court and, therefore, I see no reason why this Court cannot grant the requisite bail under section 438 of the Code.", A similar answer has been to a question similar to one posed above by a Bench of the Calcutta High Court in 1982 Criminal Law Journal page 61. Although the facts are some what dissimilar and a very general and bald observation has been made in this-regard, the Delhi High Court has, taken the same view (see 1980 Criminal Law Journal 1174) N.P. Singh, has applied the same principle in Or. Misc. No. 9663 of 1983. 5. There cannot be any dispute that the Ranchi Bench shall have jurisdiction and, power in respect of a case arising in the district of Dhanbad, and since in the instant case, the police in the district of Dhanbad has registered a ease against the petitioner, he can move an application for anticipatory bail at Ranchi But can it be said that the provisions under the Act creating Ranchi Bench shall exclude the jurisdiction or the Patna Bench, and although a person may apprehend arrest on an accusation of having committed a non-bailable offence within the territorial jurisdiction of the Panta Bench, he cannot move this Court for anticipatory bail? Right to move for grant of bail by a person apprehending arrest is no made dependent upon the words like where the act is done and consequence ensue of where the offence is committed. It does, no also refer to the place where the case arises Right to move for anticipatory bail in an -appropriate case tan be availed of even before a case is actually lodged. What is relevant is the apprehension that one may be arrested on an accusation of having committee a non-bailable offence. 6. It does, no also refer to the place where the case arises Right to move for anticipatory bail in an -appropriate case tan be availed of even before a case is actually lodged. What is relevant is the apprehension that one may be arrested on an accusation of having committee a non-bailable offence. 6. Learned counsel for the State has also placed reliance upon the rules framed by this Court as to the filing of the applications of various kinds including applications for anticipatory bail and suggested that the rules read along with section 2 of the Act leave no jurisdiction with the. Bench of the Court at patna to entertain any application including an application for anticipatory bail in respect of a case in which the Ranchi Bench can exercise jurisdiction and vice versa. Learned counsel for the State has also drawn my attention to the proviso to rule 3 of the Rules framed by the High Court is which power has been given to the Chief Justice to direct for the hearing of a case arising in the territorial jurisdiction of the Ranchi Bench by a judge or a Bench at Patna. This is nothing but an extension or reiteration of the law incorporated in the wordings of section 2 of the Act. It is doubtful if the hearing or a case can be equated with the entertainability of an application. But it is obvious that the power even to the Chief Justice to transfer a case from Ranchi to Patna is administrative in nature. It can not take away the judicial power of the court to entertain and decide a case if the law under which such a power is exercised is not inhibited by restrictions of any kind. 7. Acceptance of such a contention shall deny to a person reasonably apprehending arrest by the police at the place of his residence or business or at a place where he ordinarily resides the right given to him under section 438 of the Code of Criminal Procedure. It the provisions of the Act and the Rules are read to restrict the jurisdiction of this Court, a person under the threat of invasion of his liberty shall find no protection from the powerless Judges sitting at Patna, This provision as pervasive present and read as it is, is not a dream or an idea or a vision. It the provisions of the Act and the Rules are read to restrict the jurisdiction of this Court, a person under the threat of invasion of his liberty shall find no protection from the powerless Judges sitting at Patna, This provision as pervasive present and read as it is, is not a dream or an idea or a vision. Applying the ordinary rule of interpretation of statutes, I have my preference to the rule of law which shall make the law effective and genuine and not empty and hollow. Language of section 438 is clear and unambiguous. A person apprehending arrest on an accusation of having committed a non-bailable offence is entitled to move for anticipatory bail. His Court is the court nearest to the place he lives, whether a court of Sessions Judge or a High Court. Doors of the Court of justice must not be closed at the face of a person seeking justice. It must open at the first. Knock, at the first bell of alarm, at the first cry of invasion of the right of liberty. 8. I have deliberately avoided discussing as to what may be the position in a case in which a person has already been apprehended and he is required to proceed as provided under section 4, 7 of the Code of Criminal Procedure. I am of the definite view that an application for anticipatory bail has to be entertained at the instance of any person apprehending arrest on an accusation of having committed non-bailable offence, irrespective of the place where the case is registered or the offence is committed, provided this Court is satisfied that the petitioner has got a reasonable apprehension and that he lives somewhere or intends to live somewhere within its territorial jurisdiction. 9. The petitioner is a permanent resident of the district of Bhojpur. He is at present living in the city or Patna. His application, I hold, is entertainable at Patna.