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2008 DIGILAW 258 (CHH)

M. A. WARIS v. STATE OF C. G.

2008-09-12

DHIRENDRA MISHRA

body2008
ORDER Hon'ble Shri Dhirendra Mishra, J. :- 1. The applicant has preferred this application under Section 438 of Cr.P.C. for grant of anticipatory bail as he apprehends arrest in connection with Criminal Case No.535/06, pending in the Court of Judicial Magistrate First Class, Raigarh, for offence punishable under Sections 465, 466,467 and 471 of the IPC. 2. Case of the prosecution, in brief, is that on the complaint of non-applicant No.2, the aforesaid offence was registered and summon was issued to the applicant. He was granted bail by the trial Court on 23-6-2002 (Annexure A4). Allegation against the applicant is that by manipulating the service record, the applicant changed his date of birth from 7-6-1937 to 7-6-1939. The revision preferred by the non-applicant No.2 against the order of grant of bail was allowed by this Court vide order dated 28th April, 2008.and the applicant was directed to surrender before the trial Court on or before 12th May, 2008. 3. Learned counsel for the applicant contended that he was released on regular bail by the trial Court in the year 2002 and he did not abuse the bail granted to him till date. The order of bail has been set aside on the ground that the trial Court had no jurisdiction to grant hail for offence under Section 467 of I.P.C. as the same is punishable with imprisonment for life and he has been directed to surrender before the trial Court. It was further argued that the complaint was lodged at the fag end of his service career with ulterior motive. On the complaint of the non-applicant No.2. Collector Raigarh directed enquiry and the District Education Officer vide his report dated 11-12-2000 (Annexure A-6) apprised the Collector that the date of birth mentioned in the service book of the applicant is correct. 4. Reliance is placed on the decisions in the matters of Yuvraj Gaud Vs. State of Madhya Pradesh and another' and Gheesya and others Vs. State of Rajasthan. 5. On the other hand, learned counsel for the State has opposed the above prayer. 6. Non-applicant No.2 is unrepresented, though served. 7. I have heard learned counsel for the parties and perused the case diary. 8. State of Madhya Pradesh and another' and Gheesya and others Vs. State of Rajasthan. 5. On the other hand, learned counsel for the State has opposed the above prayer. 6. Non-applicant No.2 is unrepresented, though served. 7. I have heard learned counsel for the parties and perused the case diary. 8. It is not in dispute that after registration of the offence against the applicant in a complaint case filed by non-applicant No.2, the applicant was granted bail on 23.6.2002 by the trial Court and the said order has been subsequently set aside by this Court vide order dated 28.4.2008 (Annexure A/5) on the ground that the Judicial Magistrate First Class has no jurisdiction to grant bail for the offence punishable under Section 467 of the IPC as it is punishable with imprisonment for life. Apprehension of the applicant is that in case, he appears before the trial Court, he shall be arrested in connection with the aforesaid offence as the trial Court has no jurisdiction to grant bail. It is also not in dispute that the complaint regarding manipulation in service book was made in the year 2002, on the verge of retirement of the applicant. From the document of Annexure A/6, it also appears that the District Education Officer conducted an enquiry regarding date of birth of the applicant in the service record and found the same to be correct. 9. In the matter of Yuvraj Gaui (supra) also offence was registered against the applicant under Section 467 of IPC on a private complaint and bailable warrant was issued against him. His application for bail was disposed of with a direction to the applicant to appear before the trial Court and furnish bail as he was summoned through bailable warrant. The learned Single Judge of the MP High Court allowed his application under Section 438 of Cr.P.C. with an observation that where the applicant shows reasons to believe that he may be arrested for a non-bailable offence, in such circumstances he may be granted protection under Section 438 of Cr.P.C. in appropriate cases as provision of Section 438 of Cr.P.C. is a device to secure the individual's liberty. 10. In the matter of Gheesya (supra), initially crime was registered against the applicants for offence under Sections 452, 147 and 323 of IPC, they were arrested and enlarged on bail by the trial Court. 10. In the matter of Gheesya (supra), initially crime was registered against the applicants for offence under Sections 452, 147 and 323 of IPC, they were arrested and enlarged on bail by the trial Court. Subsequently, the injured died and offence under Section 302 of IPC was added. After the death of injured, the SHO of the police station applied for cancellation of the bail granted to the applicants. The applicants applied for anticipatory bail apprehending their arrest in view of subsequent development. Learned Single Judge of the Rajasthan High Court allowed their application by observing thus: "8. As far as, the question of maintainability of an application under section 438, Cr.P.C. is concerned, it can be said that in the present circumstances, it would not be fit that the petitioners file a revision petition or even a petition under section 482, Cr.P.C. This application under section 438, Cr.P.C. cannot be said to be inappropriate. After all the petitioners are apprehending their arrest because of the cancellation of their bail and when arrest is apprehended, the petitioners have reasons to believe that they may be arrested on the accusation of having committed a non-bailable offence so they can apply for grant of anticipatory bail" , 11. In the instant case also, the applicant was granted bail in the year 2002 by the learned Judicial Magistrate First Class, however, the said order granting bail to the applicant was set aside by this Court on the ground that the Judicial Magistrate had no jurisdiction to grant bail for the offence under Section 467 of IPC, with a further direction to the applicant to surrender before the concerned Magistrate. The apprehension of the applicant that he may be arrested in the non-bailable offence under Section 467 in case he appears before the trial Court, appears to be reasonable and bona fide. 12. The apprehension of the applicant that he may be arrested in the non-bailable offence under Section 467 in case he appears before the trial Court, appears to be reasonable and bona fide. 12. For the aforesaid reasons, the application under Section 438 of Cr.P.C. preferred by the applicant is allowed on the following conditions: (i) that, the applicant shall appear before the Magistrate First Class, before whom the private complaint is pending, within a period of fifteen days and shall furnish bail for the amount as may be fixed by the Magistrate; (ii) that, the applicant shall regularly appear before the Magistrate and co-operate in the quick disposal of the private complaint; (ill) that, the applicant shall not, directly or indirectly, make any inducement, threat or promise, to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer on enquiry. Bail Granted.