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2004 DIGILAW 264 (HP)

JAMIR KHAN v. STATE OF H. P.

2004-10-07

M.R.VERMA

body2004
JUDGMENT M. R. Verma, J. (Oral): - This petition under Section 438 of the Code of Criminal Procedure (hereinafter referred to as the Code) has been filed by the petitioner/accused (hereafter referred to as the accused) for grant of interim/transitory anticipatory bail to him in case FIR No. 342/04, under Section 379 of the Indian Penal Code, registered at Police Station, Sector 22, Chandigarh. 2. As per the averments made in the application the accused is a driver of vehicle bearing No. CH-03-5243 meant for carrying the passengers. About two-three months before one V.K. Gupta and his associates hired the said vehicle to go to Delhi to meet their relatives. Said V.K. Gupta handed his brief case to his relatives to keep the same in the almirah. On the next day when he opened the brief case, he found a sum of rupees fifty or sixty thousand missing from the briefcase. He searched the aforesaid vehicle and the accused but nothing could be found. However, the aforesaid case has been registered against the accused. 3. I have heard the learned Counsel for the accused and the learned Deputy Advocate General for the State. 4. Keeping in view the prayer made in the application, the only question which arises for consideration in this petition is whether in a case registered outside the State of Himachal Pradesh will this Court have the jurisdiction to entertain the application for grant of interim/transitory anticipatory bail? 5. It is evident on a combined reading of the provisions of Sections 167, 437, 438, 439 and 81 of the Code that these provisions are meant to ensure that a person apprehending his arrest in a non-bailable offence or a person who has been arrested for such an offence, has a remedy available to seek pre-arrest or after-arrest bail at the earliest opportunity. It cannot be disputed that arrest of an accused is an integral part of investigation of a case. By virtue of the provisions of Section 48 of the Code, a police officer has the powers to pursue a person, accused of a cognizable offence, in any part of India for the purpose of arresting him without warrant. It cannot be disputed that arrest of an accused is an integral part of investigation of a case. By virtue of the provisions of Section 48 of the Code, a police officer has the powers to pursue a person, accused of a cognizable offence, in any part of India for the purpose of arresting him without warrant. Thus, a person, accused of a non-bailable offence, can be arrested in any part of the country and the imminent apprehension of arrest of such a person evidently will be at the place where the is at the relevant time. Therefore, to hold that a High Court, within whose jurisdiction the accused apprehends his arrest in a case arising but side the territorial jurisdiction of such Court, has no power even to grant interim anticipatory bail, will virtually amount to denial of the right of the person apprehending his arrest to seek anticipatory bail and he would be eventually exposed to arrest before he may reach such Court within whose jurisdiction the offence is alleged to have been committed. The beneficial legislation as Section 438 of the Code is, must be construed and interpreted in an enabling manner and not in a disabling manner. When the provisions of Section 438 of the Code are examined in view of the said rule of interpretation of beneficial legislation and the powers of the police under Section 48 of the Code, it clearly emerges that the Court within whose territorial jurisdiction a person apprehends his arrest for the commission of a non-bailable offence, is competent to grant him at least interim anticipatory bail enabling him to apply for bail before the Court within whose territorial jurisdiction he is alleged to have committed such offence. 6. In Anil Kapoor and others v. State of Himachal Pradesh, 2002(1) C.L.R. 269 this Court held as follows:- "7. It cannot be disputed that "arrest of an accused is integral part of the 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. 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 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. 12. Since the accused have not prayed for regular anticipatory bail but have confined their prayer to grant him 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." 7. Similar view has been taken by this Court in Ram Kishan v. State of H.P., Latest HLJ 2003 (HP) 573 : 2003(2) Cur. Similar view has been taken by this Court in Ram Kishan v. State of H.P., Latest HLJ 2003 (HP) 573 : 2003(2) Cur. L.J. (H.P.) 516; Sanjeev Chandel v. State of H.P. and another, 2003 Cri. L.J. 935 (H.P.) and by the High Courts of Bombay and Madhya Pradesh respectively in N.K. Nayar and others v. State of Maharashtra and others, 1985 Cri. L.J. 1887 and Sachindra Mahawar and others v. State of Madhya Pradesh and another, 2000 Cri. L.J. 637. 8. In view of the above position in law, the present application is maintainable in this Court. 9. As per the averments made in the application, duly supported by an affidavit, the accused apprehends his arrest in the aforesaid FIR for the commission of a non-bailable offence, therefore, this petition is allowed and it is ordered that in the event of arrest of the accused by the police in the aforesaid case under Section 379 of the Indian Penal Code, registered against him at a Police Station, Sector 22, Chandigarh during 15 days hereafter, i.e. upto 22.10.2004, he be released on bail on his furnishing a personal bond in the sum of Rs.15,000/- with one surety 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 October 22, 2004 when it will be treated as automatically vacated and cancelled. Dasti copy, as prayed for, on usual terms.