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Madhya Pradesh High Court · body

2005 DIGILAW 982 (MP)

Hariom Lokhande v. M. P. State Electricity Board

2005-09-15

A.K.SAXENA

body2005
ORDER 1. A short point arises for consideration whether an accused against whom a bailable warrant is issued upon filing of the complaint or charge-sheet, can he be released on anticipatory bail under section 438 of the Code of Criminal Procedure (hereinafter referred to as "the Code"), depending upon the merits of the case. 2. The short facts of the case are that the application under section 438 of the Code was filed by the applicant Hariom Lokhande before the Sessions Court on this ground that a complaint case has been tiled on behalf of MPEB under section 135 read with section 154 of the Electricity Act, 2003 in the Court of Judicial Magistrate First Class, Betul and on filing on this complaint, the Judicial Magistrate First Class, Betul issued a bailable warrant against this applicant. The application for anticipatory bail was pending in the Court of Second Additional Sessions Judge, Betul, who was appointed as Special Judge under section 153 of Electricity Act, 2003 for the purposes of disposal of the cases. Since, the Presiding Officer of Special Court was transferred and the Court was lying vacant, therefore, the application was sent to the Court of Special Judge, Betul, who was looking after the work of Special Judge, appointed under the Electricity Act. The anticipatory bail of the applicant was heard by the Special Judge, Betul on 27.7.2005 and the learned Special Judge observed that the committal Court has only issued the bailable warrant and there is no apprehension of the arrest of the applicant, therefore, the application for anticipatory bail is not maintainable and the same was rejected. 3. Before considering the question as mentioned earlier, the provisions of sub-section (1) of section 438 of the Code may be reproduced, which runs as follows : "438(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." 4. It is very much clear from the above provisions that the person, who has filed the application for anticipatory bail, must have reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. It is very much clear from the above provisions that the person, who has filed the application for anticipatory bail, must have reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. Therefore, two pre-requisite conditions are necessary for tiling of an application for anticipatory bail -- (1) There should be reasonable belief that the person may be arrested and; (2) The arrest shall be in connection with the non-bailable offence. If these two conditions are fulfilled, certainly, the application under section 438 of the Code would lie in the Court of Session or in the High Court. 5. The learned counsel for the applicant has vehemently argued that though the bailable warrant was issued against the applicant, but the offence under section 135 of Electricity Act, 2003 is triable by Special Court and since the complaint has been tiled before the Court of Judicial Magistrate, he has to commit the case, as the offence is triable by Special Court and while committing the case, the accused is bound to remain present before the Court as provided under section 209 of the Code. It is further contended that the applicant may be released on bail by the police on the basis of bailable warrant, but since the Special Court is empowered to try the case, there are chances of this applicant being sent to judicial custody by the Judicial Magistrate at the time of committing the case, as he has no power of grant the bail because the offence is triable by the Special Court. 6. The learned counsel for the applicant placed his reliance on a decision reported in Ramsevak and others v. State of M.P. [ 1979 JLJ 593 = 1979 CrLJ 1485 ]. In this case, the Division Bench of this Court has laid down the principle as follows : "It is the apprehension of any person who has reasons to believe that he may be arrested on an accusation of having committed a non-bailable offence, which has to be given due consideration and weight. If his apprehension continue even at the stage of committal Court proceedings there is nothing in the section which debars him from applying for an anticipatory bail in case of his apprehended commitment under custody." 7. If his apprehension continue even at the stage of committal Court proceedings there is nothing in the section which debars him from applying for an anticipatory bail in case of his apprehended commitment under custody." 7. Admittedly, the offence under section 135 read with section 154 of the Electricity Act, 2003 is non-bailable and triable by the Special Court. No doubt, a bailable warrant against the applicant was issued by the committal Court, as stated in the order impugned and it is quite possible that the applicant may be released on bail by the police at the time of execution of this warrant as the bailable warrant has been issued, but the apprehension of the applicant is well founded that when the applicant will appear before the committal Court, the application under section 437 of the Code might be rejected by the Judicial Magistrate on this ground that he is not empowered to grant bail under that section of the Code as, the case is triable by the Special Judge, and in that circumstance, the applicant can very well be taken into judicial custody and he may be sent to jail. Where the bailable warrant is issued against the accused and if the Court who issued the bailable warrant is not empowered to grant bail, certainly, the application under section 438 of the Code for anticipatory bail would lie. In other words, where there are chances that the Court who issued the bailable warrant may reject the bail application for want of jurisdiction, as the Special Court has the jurisdiction, then this circumstance would be sufficient to hold that the apprehension or belief of the applicant is well founded. Therefore, it would not be correct to say that since the bailable warrant has been issued in non-bailable offence there is no apprehension of arrest of the accused. 8. The apex Court has held in para 7 in the case of Bharat Chaudhary and another v. State of Bihar and another [2004(1) BLl 23=2004(1) MPLJ 490] as follows : "7. From the perusal of this part of section 438 of Criminal Procedure Code, we find no restriction in regard to exercise of this power in a suitable case either by the Court of Session, High Court or this Court even when cognizance is taken or a charge-sheet is filed. From the perusal of this part of section 438 of Criminal Procedure Code, we find no restriction in regard to exercise of this power in a suitable case either by the Court of Session, High Court or this Court even when cognizance is taken or a charge-sheet is filed. The object of section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a Court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, in our opinion, prevent the Courts concerned from granting anticipatory bail in appropriate cases ....." 9. After taking into consideration various pronouncements, this Court also held in Arvind Sood and others v. Roopali and another [ 2003(3) MPLJ 48 ] as under : "It is also found explained in the aforesaid cases that the grant of bail under section 438(1), Criminal Procedure Code by the High Court or the Court of Session is dependent on the merits of a particular case and not the order of the Magistrate choosing to summon an accused through bailable or non-bailable warrant." 10. As earlier discussed, there appears reasonable apprehension that the applicant might be taken into custody after rejection of the bail application under section 437 of the Code, if filed before the committal Court. Such well founded apprehension or belief is a good ground for tiling of an application under section 438 of the Code. The learned Special Judge, Betul has come to the wrong conclusion that since the bailable warrant was issued, therefore, there is no apprehension of arrest of the applicant and the application for anticipatory bail would not be maintainable under section 438 of the Code. The learned Special Judge has failed to consider this aspect that after appearance of this applicant, he might be taken into custody on this ground that the Judicial Magistrate is not empowered to grant bail, as the offence is triable by Special Court. As observed above, I am of this considered opinion that the application which was tiled before the Special Judge, should have been considered on the merits of the case, as the applicant has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. 11. The applicant has filed an application under section 438 of the Code before this Court. 11. The applicant has filed an application under section 438 of the Code before this Court. The complainant inspected the field of the applicant and found that the applicant had committed the theft of electricity by connecting the wire directly with the service line. A Panchnama was prepared on the same day and the PVC cable wire, main switch and starter were seized from the possession of the applicant. A site plan was prepared and a bill of Rs.8,230/- was handed over to the applicant, but he failed to pay this amount. Thereafter, the complaint was filed in the Court of Judicial Magistrate First Class, Betul. 12. The learned counsel for the applicant has contended that as per the complaint, the amount of Rs.625/- as due, which has already been deposited by this applicant on 24.11.2004. It is further contended that the applicant has been falsely implicated in this case and considering all the facts, the applicant is entitled to be released on anticipatory bail. 13. Per contra, the learned counsel for the non-applicant has submitted that the amount of Rs.8,230/- is due on the applicant and since he has committed the theft of electricity, therefore, he is not entitled to be released on anticipatory bail. 14. On perusal of complaint and various documents prepared by the complaint, it appears that there is some difference between the amount which has been shown in the complaint and Panchnama. Considering all the facts and circumstances, the applicant is entitled to be released on anticipatory bail. Therefore, the application is allowed and it is directed that in the event of arrest of the applicant Hariom Lokhande, he shall be released on bail on his furnishing a personal bond in the sum of Rs.7,000/ - (Rs. Seven thousand) with a surety bond in the like amount to the satisfaction of Judicial Magistrate First Class, Betul. The applicant shall further abide by the conditions enumerated in subsection 2 of section 438, Criminal Procedure Code.