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2005 DIGILAW 49 (CHH)

Nanku Ram v. State Of Chhattisgarh

2005-02-08

V.K.SHRIVASTAVA

body2005
ORDER V.K. Shrivastava, J. 1. Heard arguments advanced by both the parties. 2. The accused/applicant has preferred this bail application under Section 438 of the Cr.PC, for releasing him on anticipatory bail, apprehending arrest in Crime No. 4/2004 registered at Police Station, Ramchandrapur, Dist. Surguja (CG) for commission of offence punishable under Section 420/34 of the IPC. 3. In pursuance of directions contained in the order passed under Section 438 of the Cr.PC, granting anticipatory bail for three months or till filing of challan whichever is earlier, the applicant applied for grant of regular bail in the Court of Chief Judicial Magistrate, Ambikapur but vide order dated 7-6-2004 that application has been rejected with a direction that the applicant is on anticipatory bail up to 11-6-2004, therefore, if by that time he obtains order for releasing him on bail from any Competent Court of jurisdiction, he be released, else he be sent to jail alongwith the remand warrant. Thereafter applicant instead of filing application for grant of regular bail before Sessions Court under Section 439 of the Cr.PC, again applied for grant of anticipatory bail under Section 438 of the Cr.PC and the same has been dismissed vide order dated 8-9-2004 by the Additional Sessions Judge, Ramanujganj. 4. Section 438(1) of the Cr.PC and 437(1) of the Cr.PC reads as under :- "438. Direction for grant of bail to person apprehending arrest.- (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section, and that Court may, if it thinks fit, direct that in the event of such arrest he shall be released on bail. 437. 437. When bail may be taken, in case of non-bailable offence.- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence : Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm : Provided further that the Court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason : Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court." 5. It is manifest that applicant who was apprehending arrest of an accusation of having committed a non-bailable offence under Section 420 of the IPC was granted anticipatory bail in accordance with Section 438 of the Cr.PC by learned Additional Sessions Judge, Ramanujganj vide his order dated 11-3-2004 for a period of three months or till the filing of challan, whichever is earlier with a direction that in the meanwhile applicant may file an application for grant of regular bail. It appears that in pursuance to that order the applicant, on being his arrest, was released on anticipatory bail who thereafter applied for grant of regular bail before Chief Judicial Magistrate, Ambikapur. It appears that in pursuance to that order the applicant, on being his arrest, was released on anticipatory bail who thereafter applied for grant of regular bail before Chief Judicial Magistrate, Ambikapur. Offence under Section 420 of the IPC is triable by the Magistrate First Class and is punishable with imprisonment of 7 years and fine. Therefore, Chief Judicial Magistrate was competent to grant or refuse to release the applicant on bail and when the Competent Court of jurisdiction was moved under Section 437 of the Cr.PC for grant of regular bail that Court under the analogy of deemed custody heard the application and on merit rejected the same and the said order is a final order. The protective umbrella was up to 11-6-2004, therefore, learned Chief Judicial Magistrate, Ambikapur instead of taking the applicant in actual custody allowed him to remain on deemed custody till 11-6-2004, and passed appropriate direction for taking further action in the matter. The anticipatory bail granted under Section 438 of the Cr.PC granted for a limited period will, although in the meanwhile application for grant of regular bail is rejected under Section 437 or 439 of the Cr.PC; still remain in force for the remaining period, but merged with the final order passed deciding the regular bail application on merit by the Competent Court allowing the same. As such, in case learned Chief Judicial Magistrate would have allowed the application and ordered him to be released on bail on furnishing personal bond and security bond to the satisfaction of his own on other sub-ordinate Magistrate it was necessary for him to keep him in custody and under its direction, till the bonds are executed and accepted. Held- (1) On being released for a limited period under Section 438 of the Cr.PC, with a direction to move the Competent Court for regular bail, he is required to file an application for grant of regular bail for its decision by the Competent Court. In case of refusal, the person concerned shall not be taken to actual custody if period fixed by anticipatory bail is not exhausted, so that he can approach to Higher Court during that period for grant of bail. In case of refusal, the person concerned shall not be taken to actual custody if period fixed by anticipatory bail is not exhausted, so that he can approach to Higher Court during that period for grant of bail. (2) In case the Court under Section 437 or 439 of the Cr.PC, orders the person to be admitted to bail on furnishing personal bond and surety bond the concerned Court to obtain compliance of the directions, if the personal bond and bail bond are required to be furnished before him, may allow him to remain in deemed custody, or otherwise till execution and acceptance of the bonds, but if required to be furnished by or accepted by other Court subordinate to him may take him in custody till the compliance of furnishing personal bond and surety bond are not completed. (3) If regular Court refuses to admit the person concerned on bail, and the period for which anticipatory bail has been granted is not exhausted, then for that remaining period the person concerned may remain in deemed custody, but as soon as the said period is over and in compliance of any regular bail order the person concerned is not released then it shall be the duty of that Court within whose jurisdiction the person concerned has submitted himself to its jurisdiction to take person concerned in actual custody and remand him to judicial custody and for that sake, may take necessary steps in accordance with law. Under the above factual matrix, the applicant had the following options :- (1) When the period granted under Section 438 of the Cr.PC was remaining he should have, when his application under Section 437 of the Cr.PC was rejected, applied to the Court of Session under Section 439 of the Cr.PC. (2) To apply within the limited period for its extension by the concerned Court. (3) After the expiry of the specified period under Section 438 of the Cr.PC, he should have surrendered himself before the concerned Court and in case of his failure to do so, the concerned Court which decided his application under Section 437 or 439 of the Cr.PC, deeming him in custody at the time of deciding the application should take the applicant in custody and for the sake of that to issue necessary process. 6. 6. The applicant neither moved any application within the limited period in the Competent Court under Section 439 of the Cr.PC nor made an application within limited period for extension of time granted under Section 438 of the Cr.PC nor after the lapse of period limited therein surrendered himself to the actual custody. 7. In the above scenario neither the application for grant of anticipatory bail filed by the applicant is tenable nor a person who knowingly has not surrendered himself, so far, should be allowed to get further benefit under Section 438 of the Cr.PC. It is for the Chief Judicial Magistrate who rejected the application of the applicant under Section 437 of the Cr.PC to proceed, further in accordance with law for putting the applicant in custody. 8. This application for grant of anticipatory bail is liable to be dismissed summarily and is accordingly dismissed.