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2003 DIGILAW 816 (PNJ)

Santosh Jain v. State of Haryana

2003-05-27

VIRENDER SINGH

body2003
JUDGMENT Virender Singh, J. - The present petition has been filed by Santosh Jain, the petitioner herein, under Section 438 Criminal Procedure Code read with Section 482 Criminal Procedure Code for the grant of anticipatory bail in case FIR No. 231 dated 22.12.2002 under Sections 420/406/216 Indian Penal Code registered at Police Station, Ladwa. 2. The controversy involved in the present petition is very interesting. The petitioner had moved an application before the Sessions Court for seeking relief under Section 438 Criminal Procedure Code and the said relief was declined to her vide order dated 18.2.2003, Annexure P-1. The petitioner thereafter knocked the doors of this Court for the same relief and the application of the petitioner was disposed of by this Court vide order dated 24.2.2003, Annexure P-2, observing therein that the investigating agency will give three days notice to the petitioner to enable her to approach the Sessions Court for appropriate relief in this regard. The petitioner thereafter filed another application for anticipatory bail before the Sessions Court, Kurukshetra and the same was disposed of by the learned Additional Sessions Judge, vide order dated 9.4.2003, Annexure P-3 with the observation that the petitioner would be at liberty to file the application for regular bail before the Ilaqa Magistrate upto 17.4.2003 and in the meantime would join the investigation if called by the investigating agency. In this way, the arrest of the petitioner was stayed upto 17.4.2003. The petitioner thereafter moved an application under Section 439 Criminal Procedure Code for regular bail and the same was dismissed vide order dated 16.4.2003, Annexure P-4 passed by the learned Judicial Magistrate Ist Class, Kurukshetra. The petitioner then moved another application under Section 439 Criminal Procedure Code for regular bail before the Sessions Court and the same was dismissed vide order dated 9.5.2003, Annexure P-5 observing therein that the application under Section 439 Criminal Procedure Code for regular bail was not maintainable. 3. The petitioner thus has come to this Court once again for the relief of anticipatory bail under Section 438 Criminal Procedure Code and seeking any other direction in the interest of justice, under Section 482 Criminal Procedure Code 4. I have heard Mr. A.K. Mittal, learned counsel for the petitioner and have also gone through the file. 5. Mr. 3. The petitioner thus has come to this Court once again for the relief of anticipatory bail under Section 438 Criminal Procedure Code and seeking any other direction in the interest of justice, under Section 482 Criminal Procedure Code 4. I have heard Mr. A.K. Mittal, learned counsel for the petitioner and have also gone through the file. 5. Mr. Mittal argues that since the petitioner was under the protected cover upto 17.4.2003 as per the order dated 9.4.2003, even if the regular bail of the petitioner was declined by the Magistrate on 16.4.2003, the learned Additional Sessions Judge should have considered the application of the petitioner for regular bail and as such the impugned order Annexure P-5 passed by the learned Additional Sessions Judge, Kurukshetra is totally illegal. Learned counsel further contends that the petitioner without wasting any time after the rejection of her bail application by the Magistrate, moved the Sessions Court for the regular bail on 18.4.2003 which ultimately was decided on 9.5.2003 and now in this eventuality the petitioner should not be taken into custody. He then contends that since the petitioner is not in custody, the present petition may kindly be considered as an application for anticipatory bail once again and should be decided on merits. 6. Mr. Mittal has also touched the merits of the case and has vehemently contended that the husband of the petitioner has already been granted the concession of regular bail as is clear from para 6 of the order dated 16.4.2003 (Annexure P-4) and that the present petitioner is not even remotely connected with the commission of the crime. He then contends that the present petitioner is not at all required for any investigation by the prosecution agency. In the alternative Mr. Mittal prays for any other direction which this Court deems fit and proper in the present set of circumstances. 7. After giving my thoughtful consideration to all the aspects of the case, I am of the considered view that the present petition is not maintainable under Section 438 Criminal Procedure Code for the very simple reason that after the order of the learned Additional Sessions Judge dated 9.4.2003, the petitioner has moved an application under Section 439 Criminal Procedure Code for regular bail and the same was also dismissed on 16.4.2003. Once the petitioner has chosen to move the trial Court for regular bail, the right of anticipatory bail under Section 438 Criminal Procedure Code goes. No doubt, the petitioner was under the protected cover upto 17.4.2003 but this would not give the petitioner a right of seeking the relief once again under Section 438 Criminal Procedure Code 8. I cannot refrain myself from saying that the impugned order Annexure P-5 passed by the learned Additional Sessions Judge on the maintainability of the application of the petitioner under Section 439 Criminal Procedure Code is unwarranted. May be, by the time the petitioner had approached the Sessions Court for regular bail, the time of protected cover had already elapsed, this fact would not have stopped the learned Additional Sessions Judge from deciding the application of the petitioner under Section 439 Criminal Procedure Code In my view, the said application was maintainable in all respects. Since the application of the petitioner for regular bail has been dismissed mainly on the ground of its maintainability under Section 439 Criminal Procedure Code and is not rejected on merits, the petitioner deserves to be heard once again on merits by the Sessions Court. The situation now arises at this juncture is as to whether the petitioner is to be sent back to the Court of Session once again for re-consideration of her bail application under Section 439 Criminal Procedure Code or she has to surrender first of all and then apply for regular bail. Keeping the peculiar facts and circumstances of the present case into consideration, it is ordered that the petitioner shall move her application for regular bail once again on or before 2.6.2003 before the concerned Sessions Court and the said application of the petitioner shall be decided on the same day by the concerned Court. The petitioner shall be personally present on that day and for all intents and purposes, the petitioner shall be considered to be in deemed custody. In case the bail application of the petitioner is rejected by the concerned Court, she will be taken into custody forthwith or she herself would surrender for seeking any further relief available to her according to law. Disposed of. Petition allowed.