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Madhya Pradesh High Court · body

2012 DIGILAW 833 (MP)

Harnam Singh v. State of M. P.

2012-08-31

G.D.SAXENA

body2012
ORDER 1. By preferring the instant petition under section 482 of CrPC, the petitioner is praying for dispensing with the condition imposed vide order dated 4th November 2009 passed in Miscellaneous Criminal Case No.7147/2009 by this Court wherein following observations have been made : “In this peculiar circumstances of the case and looking to the stage of investigation, I deem it appropriate to grant bail. Therefore, the application is allowed and it is directed that the applicant shall be released on bail by the arresting authority, in the event of his arrest, in connection with Crime No.302/08, on furnishing a bond of Rs.30,000/ (Rupees Thirty thousand only) along with one surety to the satisfaction of the Station House Officer. It is made clear that soon after filing the charge-sheet, the applicant would be required to apply for regular bail before the Court below.” 2. To substantiate his grounds taken in the petition, learned counsel for the petitioner has drawn attention of this Court to the decision in the case of Salauddin Abdul Samad Shaikh v. State of Maharashtra [1996 SCC (Cri.) 198], in which the Hon’ble apex Court has been pleased to observe as under : “It is therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted. It should be realised that an order of anticipatory bail could even be obtained in cases of serious nature as for example murder and therefore, it is essential that the duration of that order should be limited and ordinarily the Court granting anticipatory bail should not substitute itself for the original Court which is expected to deal with the offence. It is that Court which has then to consider whether having regard to the material placed before it, the accused person is entitled to bail.” 3. However, in a later decision in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra [ AIR 2011 SC 312 ], following view has been adopted : “108. Section 438, CrPC does not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted. However, in a later decision in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra [ AIR 2011 SC 312 ], following view has been adopted : “108. Section 438, CrPC does not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted. The order granting anticipatory bail is a direction specifically to release the accused on bail in the event of his arrest. Once such a direction of anticipatory bail is executed by the accused and he is released on bail, the concerned Court would be fully justified in imposing conditions including direction of joining investigation. 109. The Court does not use the expression ‘anticipatory bail’ but it provides for issuance of direction for the release on bail by the High Court or the Court of Session in the event of arrest. According to the aforesaid judgment of Salauddin’s case, the accused has to surrender before the trial Court and only thereafter he/she can make prayer for grant of bail by the trial Court. The trial Court would release the accused only after he has surrendered. 110. In pursuance to the order of the Court of Session or the High Court, once the accused is released on bail by the trial Court, then it would be unreasonable to compel the accused to surrender before the trial Court and again apply for regular bail. 115. The apex Court in Salauddin’s case (supra), held that anticipatory bail should be granted only for a limited period and on the expiry of that duration it should be left to the regular Court to deal with the matter is not the correct view. The reasons quoted in the said judgment is that anticipatory bail is granted at a stage when an investigation is incomplete and the Court is not informed about the nature of evidence against the alleged offender. 116. The said reason would not be right as the restriction is not seen in the enactment and bail orders by the High Court and Sessions Court are granted under sections 437 and 439 also at such stages and they are granted till the trial.” 4. 116. The said reason would not be right as the restriction is not seen in the enactment and bail orders by the High Court and Sessions Court are granted under sections 437 and 439 also at such stages and they are granted till the trial.” 4. In the light of the above, it is submitted by the learned counsel for the petitioner that the condition so imposed under the order impugned with respect to moving for regular bail before the Court competent immediately after submission of charge-sheet appears to be uncalled for and the petitioner deserves to be relieved of such restriction. 5. In this regard, the argument put forth by the learned Public Prosecutor appearing on behalf of the State is that once charge-sheet is filed and warrant is issued, that means, the matter has reached a stage where the arrest is certainty and as such there is no question of the person having still only “reason to believe”. Hence, opposing the prayer of the petitioner’s learned counsel, it is requested that the petition preferred for the purpose may be dismissed. 6. Heard the learned counsel for the both the sides and also perused the provisions of law applicable to the case at hand. 7. To understand the law regarding anticipatory bail, this Court has to look into the provision of section 438 of CrPC as well as various pronouncements of the Hon’ble Supreme Court in this regard : “438. Direction for grant of bail to person apprehending arrest. -- (1) Where any person has reason to believe that he may be arrested on 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 that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely : (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) whether the accusation has been made with the object of injuring or humiliating the applicant by having so arrested. either reject the application forthwith or issue an interim order for the grant of anticipatory bail : Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. (1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, in on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including -- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person 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; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer-in-charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).” 8. Issue of bail is one of the personal liberties of an accused or convict and it is a fundamental right of every citizen to be free unless he is detained under any law enacted by Parliament. The question as to whether bail to be granted or not depends upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict and any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some other ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made and on the other hand, if it appears on considering the antecedents of the applicant that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. 9. It is crystal clear that the power under section 438 CrPC to grant anticipatory bail is of an extraordinary character in as such as the bail (under section 439 CrPC) can be granted only after the arrest, whereas an order of anticipatory bail is to be granted before a person is arrested. It is of a wider amplitude. It is without any strings or fetters attached to it except those referred to above. It must be remembered that this extraordinary power has been granted only to superior Courts like the Sessions Court or the High Court. This aspect is clear from the proposal of the Law Commission while recommending introduction of provisions of anticipatory bail. It is without any strings or fetters attached to it except those referred to above. It must be remembered that this extraordinary power has been granted only to superior Courts like the Sessions Court or the High Court. This aspect is clear from the proposal of the Law Commission while recommending introduction of provisions of anticipatory bail. In fact in para 39.9 of the 41st Report of the Law Commission it is opined thus : “We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted. But we found that it may not be practicable to exhaustively enumerate those conditions; and moreover, the laying down of such conditions may be construed as prejudging (partially at any rate) the whole case. Hence, we would leave it to the discretion of the Court and prefer not to fetter such discretion in the statutory provision itself. Superior Courts will undoubtedly, exercise their discretion properly, and not make any observations in the order granting anticipatory bail which will have a tendency to prejudice the fair trial of the accused.” 10. It is clear from the proposal of the Law Commission that though initially it thought of imposing certain checks and restrictions on the power of the Court to grant anticipatory bail, however, subsequently on giving a careful consideration to the facts and circumstances dropped the said idea and left it completely to the discretion and wisdom of the Courts. The Law Commission did not do so because it reposed confidence on the Courts, as the power is well being given only to superior Courts like the Court of Sessions or the High Court. Further more, according to the Law Commission, in case certain fetters, restraints and checks were put, in that eventually the very purpose of the granting of the powers was likely to be defeated. Admittedly, the intention of the legislature was to make it possible to the Courts to grant bail in anticipation of the arrest in those cases where a citizen approaches the Court with an apprehension of being arrested. 11. In the case of Balchand Jain v. State of Madhya Pradesh [1977 JLJ 39= AIR 1977 SC 366 ], the Hon’ble Supreme Court for the first time had occasion to examine and propound the scope and ambit of section 438 CrPC. 11. In the case of Balchand Jain v. State of Madhya Pradesh [1977 JLJ 39= AIR 1977 SC 366 ], the Hon’ble Supreme Court for the first time had occasion to examine and propound the scope and ambit of section 438 CrPC. In that case the Hon’ble Supreme Court observed thus : “We do not find in this section the words ‘anticipatory bail’, but that is clearly the subject with which the section deals. In fact, ‘anticipatory bail’ is a misnomer. It is not as if bail is presently granted by the Court in anticipation of arrest. When the Court grants ‘anticipatory bail’, what it does is to make an order that in the event of arrest, a person shall be released on bail. Manifestly there is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting “anticipatory bail” becomes operative. Now, this power of granting ‘anticipatory bail’ is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or ‘there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail’ that such power is to be exercised. And this power being rather of an unusual nature, it is entrusted only to the higher echelons of judicial service, namely, a Court of Sessions and the High Court. It is a power exercisable in case of an anticipated accusation of non-bailable offence and there is no limitation as to the category of non-bailable offence in respect of which the power can be exercised by the appropriate Court. Now section 438 contemplates an application to be made by a person who apprehends that he may be arrested on an accusation of having committed a non-bailable offence. It is an application on an apprehension of arrest that invites the exercise of the power under section 438. And on such an application, the direction that may be given under section 438 is that in the event of his arrest, the applicant shall be released on bail.” 12. A Constitution Bench of Hon’ble apex Court in the Gurbaksh Singh Sibbia v. State of Punjab [ (1980)2 SCC 565 ], again considered the scope of section 438 CrPC. And on such an application, the direction that may be given under section 438 is that in the event of his arrest, the applicant shall be released on bail.” 12. A Constitution Bench of Hon’ble apex Court in the Gurbaksh Singh Sibbia v. State of Punjab [ (1980)2 SCC 565 ], again considered the scope of section 438 CrPC. It observed thus : “Advisedly, at least in part, because of the 41st Report of the Law Commission which, while pointing out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant anticipatory bail, said in paragraph 29.9 that it had ‘considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted’ but had come to the conclusion that the question of granting such bail should be left ‘to the discretion of the Court’ and ought not to be fettered by the statutory provision itself, since the discretion was being conferred upon superior Courts which were expected to exercise it judicially. The legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the higher Courts in the echelon a some what free hand in the grant of relief in the nature of anticipatory bail. That is why, departing from the term of sections 437 and 439, section 438(1) uses the language that the High Court or the Court of Sessions ‘may, if it thinks fit’ direct that the applicant be released on bail ... It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, in so far as one may, and to given full play to the presumption that he is innocent. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, in so far as one may, and to given full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable offence asks for bail. In the latter situation, adequate data is available to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in section 437.” 13. In a later decision of Hon’ble apex Court in the case Salauddin Abdulsamad Shaikh v. State of Maharashtra [1996 SCC (Cri.) 198], it is laid down thus : “It is necessary that such anticipatory bail orders should be of a limited duration only and ordinarily after the expiry of that duration or extended duration, the Court granting anticipatory bail should leave it to the regular Court, to deal with the matter on appreciation of evidence placed before it after the investigation has made progress, or the charge-sheet is submitted. The order of anticipatory bail does not ensure till the end of trial but it must be limited duration as the regular Court cannot be by-passed.” 14. Applying and practically interpreting these principles various High Courts have either held that anticipatory bail can be granted at any time irrespective of filing of charge-sheet or not and in many cases -- it is laid down that after filing of the charge-sheet or issuance of warrants by the Court, the extraordinary jurisdiction under section 438 cannot be invoked. 15. However, subsequently, taking into consideration the law laid down by the Constitution Bench in Sibbia case (supra), it is held that the life of the order passed under section 438 of CrPC cannot be curtailed. This view has been taken in the case of Siddharam Satlingappa Mhetre (supra), holding the decision earlier taken in the case of Salauddin Abdulsamad Shaikh (supra), as per incuriam. The same view has been followed again in the case of Dinbandhu v. State of Bihar [(2012)2 SCC (Cri.) 764]. 16. This view has been taken in the case of Siddharam Satlingappa Mhetre (supra), holding the decision earlier taken in the case of Salauddin Abdulsamad Shaikh (supra), as per incuriam. The same view has been followed again in the case of Dinbandhu v. State of Bihar [(2012)2 SCC (Cri.) 764]. 16. Thus, it is amply clear that the legislature in its wisdom thought it fit that it is not proper to impose any condition to grant anticipatory bail. Further, it is well settled principle of law that while interpreting a provision, the Court has to interpret it as it is and not as it ought to be or as the Court thinks it should be. 17. For the reasons stated above, the petition stands allowed.The condition imposed vide order dated 4th November 2009 in Miscellaneous Criminal Case No.7147/2009 is dispensed with. However, it is ordered that the learned trial Magistrate while taking cognizance in the matter, if thinks appropriate to issue a warrant, he shall issue a bailable warrant in conformity with the provisions of sub-section (1) of section 438 of CrPC. .............