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2003 DIGILAW 75 (HP)

RAM KISHAN v. STATE OF H. P.

2003-04-07

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—Since these three applications under Section 438 of the Code of Criminal Procedure (hereafter referred to as the Code) for grant of anticipatory bail filed by the petitioners/accused (hereafter referred to as the accused persons) arise out of the same FIR No. 46 dated 31.3.2003 under Section 498-A/406 IPC registered at Police Station, Balachour, District Nawashehar (Punjab), therefore, are being disposed of by this common order. 2. Brief facts leading to the presentation of these applications, as set out in the applications, are that accused Ashok Kumar and Lakhvinder Kaur were married on 29.1.1998 at Balachour. After the marriage attitude of Lakhvinder Kaur became aggressive and she started pressing accused Ashok Kumar that he must live separately from his parents accused Prakasho Devi and Ram Kishan either at Chandigarh or at Nawashehar. On refusal of accused Ashok Kumar the aggressive attitude of Lakhvinder Kaur hardened and she started harassing, humiliating, insulting and threatening the accused persons, including other members of their family. On 6.6.1998 Lakhvinder Kaur abruptly and without any intimation left her matrimonial home. The accused persons subsequently came to know that she had started living in village Dhanas near Chandigarh. The various attempts made by the accused to bring her back proved futile. To put more pressure on the accused persons Lakhvinder Kaur and her parents got the aforesaid FIR registered thereby making out a false and baseless criminal case against them. The accused are apprehending arrest in the said FIR, hence, these applications. 3. I have heard the learned Counsel for the accused persons and the learned Additional Advocate General for the State of Himachal Pradesh. 4. The learned Additional Advocate General has raised preliminary submissions and objection that the investigation records, if any, in the case are maintained by the police of a Police Station outside the local limits of the State of Himachal Pradesh, therefore, the respondent is not in a position to produce the record and that the case having been registered within the State of Punjab the petitions for grant of anticipatory bail are not maintainable in this Court for want of jurisdiction. 5. 5. On the other hand, the learned Counsel for the accused persons has contended that the accused persons have prayed only for grant of interim transitory/ anticipatory bail to enable them to surrender before the competent Court to get lawful orders about their release on bail, therefore, transitory/interim bail, as prayed for can be granted by this Court irrespective of the non-availability of the records and want of jurisdiction to grant regular bail. 6. It is not in dispute that the case has been registered within the State of Punjab, hence, outside the jurisdiction of this Court. 7. The intention of the legislature as reflected in Sections 167, 436, 437, 438, 439 and 81 of the Code is to ensure that a person apprehending his arrest in a non-bailable offence or a person who has been arrested for the commission of an offence has a remedy available to seek pre-arrest or after arrest bail at the earliest opportunity. Arrest of an accused is integral part of investigation in a criminal case. In a cognizable case, police has the powers to arrest a person without a warrant and can pursue a person accused of a cognizable offence in any place in India for effecting his arrest without warrant. Thus, a person accused of a cognizable offence can be arrested by the police anywhere in the country, therefore he can apprehend his arrest in any part of country. To hold that a High Court within whose jurisdiction the accused apprehends his arrest has no powers even to grant interim anticipatory bail if the offence is committed outside the jurisdiction of such High Court will virtually amount to denial of the right of the accused to seek bail at the earliest opportunity. A beneficial legislation as the provisions of Section 438 of the Code are must be construed and interpreted in an enabling manner and not in disabling manner. Therefore, on true and meaningful interpretation of the provisions regarding bail, it cannot be said that the High Court will have no jurisdiction to grant even interim anticipatory bail in a case which has been registered outside the local limits of its jurisdiction. 8. Therefore, on true and meaningful interpretation of the provisions regarding bail, it cannot be said that the High Court will have no jurisdiction to grant even interim anticipatory bail in a case which has been registered outside the local limits of its jurisdiction. 8. For the limited purpose of granting interim anticipatory bail to enable the accused to surrender before the competent Court and apply for bail, the perusal of the case file, as may be maintained by the Investigating Agency, does not appear to be necessary. 9. In Anil Kapoor and others v. State of Himachal Pradesh, 2002 (1) C.L.R. 269, this Court held as under: "7. It cannot be disputed that "arrest of an accused" is integral part of "the investigation of a case". In a cognizable case the police official investigating the case has the powers to arrest even without a warrant. In view of the provisions of Section 48 of the Code, a Police Officer is empowered to pursue the person accused of a cognizable offence in any place in India for the purpose of arresting him without a warrant, meaning thereby that he may arrest such accused in any part of the country. Therefore, to hold that a High Court within whose jurisdiction the accused apprehends his arrest, has no powers even to grant interim anticipatory bail to him if the offence is committed outside the jurisdiction of such High Court, will virtually amount to denial of his right to such anticipatory bail because in such an eventuality the accused will be exposed to arrest before he may reach such Court within whose jurisdiction the offence is alleged to have been committed and which is competent to grant anticipatory bail. In my view, beneficial legislation must be construed and interpreted in an enabling manner and not in a disabling manner. The objection raised by the learned Assistant Advocate General when examined in view of the. observations hereinabove seems to be unsustainable." It was further held as follows : "12. In my view, beneficial legislation must be construed and interpreted in an enabling manner and not in a disabling manner. The objection raised by the learned Assistant Advocate General when examined in view of the. observations hereinabove seems to be unsustainable." It was further held as follows : "12. Since the accused have not prayed for regular anticipatory bail but have confined their prayer to grant them interim anticipatory bail to enable them to apply for anticipatory bail to the Court having territorial jurisdiction over the place of the commission of offence, therefore, a considered opinion on merits and demerits of their case is not called for and, therefore, for the stated limited prayer perusal of the record is not necessary which will have to be examined and considered by the concerned Court. For the purpose of passing an appropriate order on this application, the contents of the application, duly supported by affidavit of Chattar Singh, prima-facie, disclose that the accused are residents of Nahan Town in District Sirmaur within the territorial jurisdiction of this Court, that they are accused of the commission of an offence punishable under Section 498(A) of the Indian Penal Code which is a cognizable offence and a case at the instance of the aggrieved party has been registered against them in Police Station, Jawalapur in District Hardwar and they apprehended their arrest in the said case though they claim to be innocent." 10. In Sanjeev Chandel v. State of H.P. and another, 2003 Cri. LJ. 935, similar questions were dealt with by this Court and in the circumstances similar to the circumstances of the case in hand, it was held that High Court could entertain an application for grant of interim bail to the accused to enable him to surrender before the Court having territorial jurisdiction and appropriate order qua interim anticipatory bail could be passed by the Court even in the absence of the records of the case. 11. In N.K. Nayar and others v. State of Maharashtra and others, Cri. L.J. 1887 and Sachindra Mahawar and others v. State of Madhya Pradesh and another, 2000 Cri. L.J. 637, the High Courts of Bombay and Madhya Pradesh respectively have also taken similar view as hereinabove. 12. 11. In N.K. Nayar and others v. State of Maharashtra and others, Cri. L.J. 1887 and Sachindra Mahawar and others v. State of Madhya Pradesh and another, 2000 Cri. L.J. 637, the High Courts of Bombay and Madhya Pradesh respectively have also taken similar view as hereinabove. 12. In view of the above legal position and the facts and circumstances of the case, all these petitions are allowed and it is ordered that in the event of the arrest of the accused persons by the police in case under Section 498-A/406 IPC registered against them at Police Station, Balachour, District Nawashehar (Punjab) during 15 days hereafter i.e. upto April 22, 2003 they be released on bail on their furnishing personal bonds each in the sum of Rs. 10,000 with one surety each in the like amount to the satisfaction of the arresting officer/Investigating Officer/S.H.O. concerned. It is clarified that this bail order shall be operative till April 22, 2003 when it will be treated as automatically vacated and cancelled. Copy dasti, as prayed for. Application allowed.