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2008 DIGILAW 666 (PAT)

Nasreen Parween v. State Of Bihar

2008-05-05

MIHIR KUMAR JHA

body2008
Judgment 1. Heard Counsel for the petitioner and the A.P.P. representing the State. Despite service of notice and filing of Vakalatnama on 18.1.2008 for the Opposite Party Nos. 2 and 3, no one has appeared today on their behalf. Earlier also, when the case was taken up on 13.3.2008, Counsel for the Opposite Party Nos. 2 and 3 had taken time. 2. This is an application for cancellation of anticipatory bail of Opposite Party Nos. 2 and 3 by an order, dated 11.5.2007 in A.B.P. No. 2789 of 2007 whereby and whereunder the Sessions Judge has granted anticipatory bail to them. The present application was filed on 9.10.2007 and this Court by an order, dated 21.11.2007 had issued notice to them. As noted above, the Opposite Party Nos. 2 and 3 had also been served notice and had filed vakalatnama on 18.1.2008 but none has chosen to appear on their behalf and, therefore, this application is being disposed of after hearing Counsel for the petitioner and the State. 3. Mr. Indu Shekhar Prasad Sinha, learned Senior Counsel appearing on behalf of the petitioner-informant submits that the allegation against the Opposite Party Nos. 2 and 3 were serious in nature pertaining to offences under Sections 498A, 323 and 307/34 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act. His emphasis is that the Court below, the Sessions Judge, Patna while granting anticipatory bail to the Opposite Party Nos. 2 and 3 in by an order dated 11.5.2007 in A.B.P. No. 2789 of 2007 had granted blanket anticipatory bail without putting any restriction on the Opposite Party Nos. 2 and 3. Mr. Sinha in this context had invited the attention of this Court towards the order dated 11.5.2007 passed by the Sessions Judge, Patna in A.B.P. No. 2789/2007 whereby and whereunder the Opposite Party Nos. 2 & 3 were granted anticipatory bail. The said order is being quoted hereinbelow: "Heard Mr. B.N. Srivastava, learned Counsel and learned P.P.I/C Mr. J.P. Singh, on anticipatory bail petition of petitioners namely 1. Manzer Alam and 2. Mahjabin, who apprehend their arrest in connection with Alamganj P.S. Case No. 138/2007 registered for the offence under Sections 498(A), 323, 307/34 of the I.P.C. and u/secs. 3/4 of the Dowry Prohibition Act. It has been alleged that the informant namely Nasreen Parveen was married with Md. Manzer Alam and 2. Mahjabin, who apprehend their arrest in connection with Alamganj P.S. Case No. 138/2007 registered for the offence under Sections 498(A), 323, 307/34 of the I.P.C. and u/secs. 3/4 of the Dowry Prohibition Act. It has been alleged that the informant namely Nasreen Parveen was married with Md. Mahshar Alam alias Tarique, son of the petitioners with gifts besides cash Rs. 4,00,000/- but when she went to her matrimonial house, there is allegation that she was subjected to torture and cruelty for the demand of dowry from the first night of her marriage and demand of Rs. six lacs cash was made by the accused persons including the petitioners. There is further allegation that she was assaulted by them on the very first night. As a result of which she received bleeding injury and admitted in P.M.C.H. for treatment and ultimately she was drive out from her matrimonial house. Learned Counsel appearing for the petitioners submits that though the petitioners are parents in-law of the informant but they have nothing to do with the family affairs of the informant, nothing specific overt act has been attributed against the petitioners, they are old and sick persons. Petitioner No. 1 has been suffering from heart disease and he is under treatment since last several years, the allegations as alleged are totally vague and general in nature, so under the circumstances, arrest of the petitioners cannot be justified. I agree with the submissions advanced by the learned Counsel for the petitioners and as such, they are directed to be released on bail oh their furnishing bail bonds of Rs. 10,000/-each with two sureties of the like amount each. In the event of their surrender or arrest, within a month, subject to conditions laid down u/s 438(2) Cr.P.C. (Dictated)". 4. Commenting further on the aforementioned order, Mr. Sinha has submitted that such an order in fact amounts to a blanket anticipatory bail as Sessions Judge has not put any condition rather has left it upon the Opposite Parties Nos. 2 & 3 either to surrender or even not to surrender. 4. Commenting further on the aforementioned order, Mr. Sinha has submitted that such an order in fact amounts to a blanket anticipatory bail as Sessions Judge has not put any condition rather has left it upon the Opposite Parties Nos. 2 & 3 either to surrender or even not to surrender. In this context, he has referred to a judgment of Apex Court in the case of D. K. Ganesh Babu vs. P. T. Manokaran & Ors., reported in AIR 2007 Supreme Court 1450 which according to him lays down a law to the effect that the grant of anticipatory bail under Section 438 of the Code could be for a limited duration and that the ultimate object of the Court should be to ensure that the accused appears before the Court and is subjected to be recourse of the grant of bail on merits after considering of the case by the concerned Court. He has referred to paragraphs 13 to 16 of the said judgment which in his view supports the aforementioned proposition. For sake of clarity and convenience, the relevant portion of the judgment is quoted hereinbelow: 13. The direction which a Court can issue under Section 438 of the Code is that in the event of arrest of an accused on an accusation of committing a non-bailable offence, he shall be released on bail subject to such conditions as the Court may deem fit to impose. An application under Section 438 of the Code can be moved only by a person who has not already been arrested. Once he is arrested, his remedy is to move the concerned Court either under Section 437 or Section 439 of the Code. In the very nature of the direction which the Court can issue under Section 438 of the Code, it is clear that the direction is to be issued only at the pre-arrest stage. The direction becomes operative only after arrest. The condition precedent for the operation of the direction issued is arrest of the accused. This being so, the irresistible inference is that while dealing with an application under Section 438 of the Code the Court cannot restrain arrest. 14. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The condition precedent for the operation of the direction issued is arrest of the accused. This being so, the irresistible inference is that while dealing with an application under Section 438 of the Code the Court cannot restrain arrest. 14. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of materials facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well-defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. An interim order with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code. 15. The aforesaid aspects have been highlighted in Adri Dharan Das vs. State of West Bengal [ 2005(4) SCC 303 ]. 16. In view of what has been stated above some of the directions, given by learned Single Judge, as quoted above, are not in line with what has been stated in Adri Dharan Dass case (supra). Accordingly, we modify the directions. Since the respondents have already surrendered and have been granted bail in terms of the High Courts directions, they shall surrender before the concerned Court and shall move for bail in terms of Section 439 of the Code within four weeks from today. On that being done the case shall be considered in its proper perspective uninfluenced by the fact we have disapproved stipulation of conditions by the High Court. The concerned court shall deal with the matter appropriately. On that being done the case shall be considered in its proper perspective uninfluenced by the fact we have disapproved stipulation of conditions by the High Court. The concerned court shall deal with the matter appropriately. It is brought to our notice that the husband of the deceased has already been released on bail after his surrender. The effect and/or relevance of that order shall be duly considered by the concerned Court while dealing with the application for bail to be filed within stipulated time. 5. Counsel for the State has in fact also supported the said stand of the Counsel for the petitioner and he too has placed his reliance on a judgment of the Apex Court of Naresh Kumar Yadav vs. Ravindra Kumar and Ors. reported in 2007 AIR SCW 6617 wherein the Apex Court after considering large number of earlier cases on the issue of granting anticipatory bails under Section 438 of the Cr.P.C. has held that power to grant anticipatory bail is extraordinary power which should be exercised in exceptional cases and should be granted for limited duration with a view that the provisions of regular bail under Section 439 Cr.P.C. is not by passed. 6. Considering the aforesaid submissions as also after looking into allegations in the F.I.R. against the petitioners, this Court is of the view that the learned Sessions Judge ought to have not granted anticipatory bail to the Opposite Parties Nos. 2 & 3 who were facing some serious allegation under Sections 498(A), 307/34 and 323 of the Indian Penal Code as well as Section 3/4 of the Dowry Prohibition Act. There being in fact no time limit and no compulsion in the order granting anticipatory bail to Opposite Party Nos. 2 & 3, the Court below apparently had also not taken into account the law laid down by the Apex Court in the cases of D.K. Ganesh Babu (supra) and Naresh Kumar Yadav (supra) as with regard to the minimum safeguards for granting anticipatory bail in exercise of power under Section 438 of the Cr.P.C. 7. Thus, falling in line of the said ratio in the judgment in the case of D.K. Ganesh Babu and Naresh Kumar Yadav (supra), this Court upon finding that the Sessions Judge, Patna had directed the Opposite Party Nos. Thus, falling in line of the said ratio in the judgment in the case of D.K. Ganesh Babu and Naresh Kumar Yadav (supra), this Court upon finding that the Sessions Judge, Patna had directed the Opposite Party Nos. 2 and 3 to be released on bail either in the event of their surrender or arrest without qualifying any time limit or putting any restriction, is constrained to cancel the order granting anticipatory bail to the Opposite Party Nos. 2 and 3 by the order of the Sessions Judge, Patna dated 11.5.2007 in A.B.P. No. 2789 of 2007 and consequently, their bail bonds are also hereby cancelled. 8. This Court however while canceling the anticipatory bail of the Opposite Parties Nos. 2 & 3 would make it clear that it is not expressing any opinion on the merits of the case. This Court in fact would direct the Opposite Parties Nos. 2 & 3 to surrender before the concerned Court within a period of four weeks from the date of receipt/production of a copy of this order for seeking regular bail. When such bail application is moved on behalf of the Opposite Parties Nos. 2 & 3 in terms of Section 439 of the Cr.P.C. before the concerned Court, the same shall be considered and disposed of in its proper perspective and accordance with law. If such an application for regular bail is moved, the Court would do well to dispose it of on the day it is filed. Learned counsel appearing on behalf of the State has undertaken that all relevant records shall be produced before the Court dealing with the bail application and no adjournment shall be asked for on account of non-availability of the records if the Opposite Parties Nos. 2 & 3 intimate the date on which they propose to surrender at least three days in advance. 9. With the aforesaid observations and directions, this application is allowed.