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2000 DIGILAW 1064 (PNJ)

Gurdarshan Singh v. State Of Punjab

2000-09-05

S.S.NIJJAR

body2000
Judgment S.S.Nijjar, J. 1. This is an application for anticipatory bail. The petitioner claims to have been falsely implicated. He is apprehending his arrest in FIR No. 26 dated 1.4.1998 registered under Sections 326/323/459/380/148/149 Indian Penal Code, Police Station Sardulgarh. 2. According to Mr. Cheema the only allegation against the petitioner is that he pointed out to the house in which the victim was at the relevant time. His earlier application for anticipatory bail has been rejected by Additional Sessions Judge, Mansa by order dated 16.5.2000. It is submitted by Mr. Cheema that the Police has recommended, after investigation, for cancellation of the case against all the accused. This report, however, has not been accepted by the trial Court and the petitioner has been summoned. He further submits that once the Magistrates Court finds prima facie commission of the offence under Section 326 Indian Penal Code, the Court would not have any jurisdiction to grant regular bail. The offence is punishable with life imprisonment. 3. Learned counsel for the State has submitted that once the Court has summoned the petitioner, the application for anticipatory bail cannot be entertained. This view had been taken by the Rajasthan High Court in the case of Pankaj v. State of Rajasthan, 1996 Criminal Law Journal 3265. In this case, it was observed that once the summons have been issued by the trial Court, the accused must surrender and then seek regular bail. Relying on this judgment, the Additional Sessions Judge has rejected the application for anticipatory bail. 4. However, Mr. Cheema has brought to the notice of this Court a judgment of Delhi High Court in the case of P.V. Narsimha Rao and another v. C.B.I., 1996(4) Crimes 218 : 1996(4) Current Criminal Reports 376 : 1997(1) RCR(Crl.) 287 (Delhi) (DB). In this case the Court has considered the question as to whether the High Court can grant anticipatory bail after the charge-sheet has been filed in the Court of competent jurisdiction. In para 10, it is observed as under :- "While exercising jurisdiction under Section 438 of the Code, the governing factor which is kept in kind (mind ?) by the Court is that there is apprehension of arrest by a person accused of an non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which, taking into consideration the facts and circumstances of each case, it is imperative to protect his freedom. As held by the Division Bench of Punjab and Haryana High Court in Puran Singh v. Ajit Singh, 1984(2) RCR(Crl.) 532 (supra), the section makes no distinction whether the arrest is apprehended at the hands of the police or at the instance of the Magistrate. The issuance of non-bailable warrants by the Magistrate against a person justifiably gives rise to such an apprehension and entitles a person to make a prayer for his anticipatory bail. I am, therefore, of the opinion that once non-bailable warrants have been issued by the Court of the Chief Metropolitan Magistrate this Court will have the jurisdiction to entertain an application for the grant of anticipatory bail. The discretion to exercise such power will, however, depend upon the facts and circumstances of each case." 5. The Delhi High Court granted anticipatory bail, but only upto a limited period. In giving this direction, the Delhi High Court relied on a Division Bench Judgment of this Court in the case of Puran Singh v. Ajit Singh and others, 1984(2) Recent Criminal Reports 532. In this case, the Division Bench held that the main governing factor for the exercise of jurisdiction under Section 438 Code of Criminal Procedure is the apprehension of arrest by a person accused of the commission of a non-bailable offence. The Section makes no distinction whether the arrest is apprehended at the hands of the police or at the instance of the Magistrate. The issuance of the warrants by a Magistrate against a person justifies such an apprehension and entitles a person to make a prayer for anticipatory bail. 6. In the present case, the petitioner has been summoned, but no warrants have been issued for his arrest. This, however, cannot be said to mean that there is no apprehension in the mind of the petitioner that he would be arrested. 7. In view of the above, the petitioner is directed to appear before the Trial Magistrate on or before 20.9.2000 and apply for bail. This application shall be considered on merits and decided by the Trial Court on or before 20.9.2000. Till then, the arrest of the petitioner is stayed.