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2014 DIGILAW 1635 (RAJ)

Puran Chander Sen v. State of Rajasthan

2014-10-09

KANWALJIT SINGH AHLUWALIA

body2014
JUDGMENT 1. - Present petition has been filed under Section 439(2) Criminal Procedure Code. read with Section 482 Criminal Procedure Code. praying that the order dated 13th August, 2014 passed by this Court in S.B. Crim. Misc. Bail Application No.4855/2014 whereby pre-arrest bail was granted to the respondent Krishan Baldev and Mamchand Joshi be cancelled. 2. It will be apposite here to reproduce the above order against which grievance has been made by the petitioner-complainant:- "Lawyers are stated to be on indefinite strike. Present application has been filed under Section 438 Cr.P.C. for grant of pre-arrest bail to the petitioner in a case arising out of FIR No.110/2006, registered at Police Station, Govindgarh Distt. Alwar for offence punishable under Sections 409 and 120-B IPC. Petitioners appearing in person have submitted that the above said FIR was investigated and the investigation agency after thorough investigation found the petitioners to be innocent and submitted a final report in negative form. It is contended that thereafter the complainant filed a protest petition and pursuance thereof petitioners have been summoned to stand trial by issuing arrest warrant. Reliance has been placed on the law laid by the Hon'ble Apex Court in Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors. 2007(12) SCC 1 to contend that the Court taking cognisance ought not to have issued arrest warrant at the first instance. As per the petitioners, petitioner No.1 Krishan Baldev is aged 78 years whereas petitioner No.2 Mamchand Joshi is aged 72 years. Considering the age of the petitioners and the fact that they have been summoned to stand trial after the investigating agency had submitted a final report in negative form, this Court is of the view that arrest of the petitioners will serve no useful purpose as nothing is to be recovered from them. Consequently, the present application is disposed of with a direction that in case, petitioners within ten days, from today, appear before the Court which has summoned them to stand trial, upon appearance the said Court shall accept the bail bonds to be furnished by the petitioners to its satisfaction and the bail bonds so furnished by them shall ensure during pendency of trial." 3. Petitioner-complainant appearing in person has primarily submitted that since respondent No.2 and 3 were summoned by the trial Judge by issuing bailable warrants, there was no apprehension of arrest to the accused and, therefore, they could not be granted pre-arrest bail under Section 438 Cr.P.C. It is contended that provision of Section 438 Cr.P.C. are attracted only when non-bailable warrant is issued. 4. The controversy raised in the present petition is not new to the Courts. A Single Judge Bench of Punjab & Haryana High Court after formulating a question "whether in case where accused have been summoned to stand trial by issuing a bailable warrants, anticipatory bail is maintainable or not" has referred the same to the Larger Bench. 5. A Division Bench of Punjab & Haryana High Court in Puran Singh v. Ajeet Singh 1985 Criminal Law Journal Page 897 has held as under:- "6. So far as Ram Lal's case (1976) Chand LR (Cri) 388 (Punj & Har) (supra) is concerned though I find that there is a material difference between the facts of that case and the instant I case yet 1 am of the view that the conclusion recorded therein that the Courts specified in Sub-section (1) of Section 438, Cr.P.C. have the jurisdiction to grant anticipatory bail only till the time an order is passed by a Magistrate Under Section 204, Cr.P.C., issuing bailable or non-bailable warrant against the person sought to be summoned is difficult to be sustained. That was a case where the person sought to be summoned through bailable warrants on a complaint made against them Under Section 302/34 Penal Code had secured anticipatory bail Under Section 438(1), Cr.P.C. One of the considerations which prevailed with the Sessions Judge for the grant of anticipatory bail was that in case the applicants before him. were not granted bail by him they were bound to be committed in custody to the Court of Session Under Section 209, Cr.P.C. He, thus thought it proper to exercise jurisdiction Under Section 438, Cr.P.C. It was this order of the Sessions Judge which was the subject-matter of challenge in this Court. were not granted bail by him they were bound to be committed in custody to the Court of Session Under Section 209, Cr.P.C. He, thus thought it proper to exercise jurisdiction Under Section 438, Cr.P.C. It was this order of the Sessions Judge which was the subject-matter of challenge in this Court. The primary argument raised before the learned single Judge against that order was that "an order Under Section 438, Cr.P.C. can be passed till the time any order of bail is not issued by the Magistrate." While accepting this argument, the learned Judge after a reference to the provisions of Section 438 (1) and (3) observed as follows : A perusal of these provisions shows that the High Court or the Court of Session has been empowered to grant bail to the accused in the event of his arrest under Sub-section (1) if he apprehends that he may be arrested for having committed a non-bailable offence. If this sub-section is read by itself, the power to grant anticipatory bail can be exercised at any time, but it has to be read along with Sub-section (3), to determine the-proper scope of this power. According to Sub-section (3) order regarding bail passed under Sub-section (1) will have to be complied with by an officer in-charge of a police station while arresting the accused inasmuch as it has been specifically provided that the officer concerned will have to accept bail if offered and the accused will be released on bail. In the later part of this sub-section, it is laid down that if the Magistrate takes cognisance of such offence and decides that warrants should issue in the first instance, then bailable warrants will have to be issued by the Magistrate so as to comply with the direction of the Court ordering anticipatory bail under Sub-section (1). From this, it is clear that the intention of the legislature in enacting Section 438 was that the power conferred on the Sessions Court or the High Court to grant anticipatory bail Under Sub-section (1) should be and could be exercised till the order regarding bailable warrants had been issued by the Magistrate. From this, it is clear that the intention of the legislature in enacting Section 438 was that the power conferred on the Sessions Court or the High Court to grant anticipatory bail Under Sub-section (1) should be and could be exercised till the order regarding bailable warrants had been issued by the Magistrate. If before this power it, exercised the Magistrate has already issued bailable warrants, the question of the Sessions Court or the High Court granting anticipatory bail does not arise as the Magistrate concerned has already applied his mind and issued bailable warrants. After a reference to the circumstance that had weighed with the Sessions Judge for the grant of anticipatory bail that the applicants before him were bound to be committed in custody at the time of sending them up to the Court of Session for trial was not a relevant consideration for the grant of bail Under Section 438. Cr.P.C., the learned single Judge concluded the matter thus : For the aforesaid reasons, the impugned order passed by the learned Sessions Judge granting anticipatory bail to respondents 2 to 5 is set aside as being without jurisdiction. 7. How the jurisdiction of this Court or that of the Court of Session Under Section 438, Cr.P.C., to grant anticipatory bail is dependant on the tact that the Magistrate has issued a bailable or a non-bailable warrant is not clear from this judgment. The main governing factor for the exercise of jurisdiction Under Section 438, Cr.P.C., is the apprehension of arrest by a person accused of the commission of a non-bailable offence. The section makes no distinction whether the arrest is apprehended at the hands of the police or at the instance of the Magistrate. The.issuance of a warrant by the Magistrate against a person, to my mind, justifiably gives rise to such an apprehension and well entitles a person to make a prayer for his anticipatory bail. The High Court or the Court of Session may, however, decline to exercise its powers Under Section 438(1), Cr.P.C., keeping in view the fact that the Magistrate has summoned the accused through bailable warrant - i.e., a relief almost similar to what can be granted by the Court Under Section 438(1), Cr.P.C. yet that does not mean that the Court has no jurisdiction to grant anticipatory bail to such an accused person. The grant of bail Under Section 438(1) by the High Court or the Court of Session is, to my mind, 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. The order of the Sessions Judge in Ram Lal's case (1976 Chand LR (Cri) 388) (Punj & Har) (supra) well might have been set aside on the ground that while granting anticipatory bail he had been swayed by irrelevant consideration, yet it could not possibly be set aside on the ground that the Sessions Judge had no jurisdiction to grant anticipatory bail. The differentiation between lack of jurisdiction and non-exercise of jurisdiction has essentially not to be lost sight of, Though Mr. Sidhu, the learned Advocate-General, also sought to contend in the light of the observations of their Lordships of the Supreme Court in Free Legal Aid Committee Jamshedpur v. State of Bihar 1982 Cri LJ 1943 : what had weighed with the Sessions Judge in Ram Lal's case (supra) was not irrelevant for the question of grant of bail yet we do not feel the necessity of going into that aspect of the matter at all. However, this is what their Lordships have laid down for the future guidance of the Magistrates in the country in cases triable by the Court of Session : There is also another difficulty pointed out by Mr. Sibal and it is that in cases triable by the Court of Session the practice followed is that when an accused is released on bail by the Magistrate, the bail is granted to him only during the pendency of the enquiry before the Magistrate with the result that when the case is committed to the Court of Session, he is re-arrested and brought before the Court of Session where he has to apply once again for fresh bail. This causes considerable inconvenience to the accused without any corresponding advantage so far as the administration of criminal justice is concerned This situation can, however, easily be avoided because there is a provision in Section 441 Sub-section (3) of the Cr.P.C. under which bail can be granted to an accused so as to bind him to appear before the Court of Session in which event, on committal he would not have to be re-arrested and brought before the Court of Session. It is also clear from Section 209 Clause (b) of the Cr.P.C. that the Magistrate has discretion to release the accused on bail "during and until completion of trial" even in cases where the offence is triable by the Court of Session. We, therefore, feel that it would avoid hardship to an accused if the Magistrate, while releasing the accused on bail, requires execution of a bond with or without surety, as the case may be, binding the accused not only to appear as and when required before him but also to appear when called upon in the Court of Session. Mr. K.G. Bhagat on behalf of the State of Bihar also agrees that this is a procedure which can be legitimately followed by the Magistrates. We hope and trust that hereafter this procedure will be followed by the Magistrates unless there are any particular reasons for not doing so. 8. It is, thus, patent in the light of the discussion above that the decision in Ram Lal's case (1976 Chand LR (Cri) 388) (Punj & Har) (supra) that the jurisdiction Under Section 438(1), Cr.P.C. can be exercised only till an order is passed by a Magistrate choosing to summon an accused through bailable or non- bailable warrant and not thereafter too deserves to be overruled and we order accordingly. 6. The above said view was later followed by Division Bench of Delhi High Court in PV Narasimha Rao & Ors. v. CBI 1996 Volume 1 Recent Criminal Law Journal 287 (Delhi DB) and it was held as under:- "20. We have already observed above that the Courts while dealing with an application under Section 438 Cr. P.C. enjoy very wide powers, unlike the powers of a subordinate Court which is riddled and hedged in by restrictions. Thus the learned Public Prosecutor argues that the present application would not be maintainable in view of the fact that the Court has itself not chosen to issue a warrant of arrest; instead the learned Special Judge has issued a process in the form of summons to secure the appearance of the petitioner. Hence it cannot be called by any stretch of imagination that there is an apprehension of arrest. While putting forward the said contention the learned Public Prosecutor is oblivious of the fact that a charge sheet has already been filed before the learned Special Judge against the petitioners. Hence it cannot be called by any stretch of imagination that there is an apprehension of arrest. While putting forward the said contention the learned Public Prosecutor is oblivious of the fact that a charge sheet has already been filed before the learned Special Judge against the petitioners. They have been summoned to appear before the Court. Thus can it be said in the above circumstances that there is no apprehension in the mind of the accused persons that they would not be arrested ? We feel the apprehension in the above circumstances is very much genuine and real and not a figment of the imagination of the petitioners. The petitioners admittedly have been accused of committing of a cognisable offence. Thus they can be arrested at any time by any officer of the police. They can also be arrested at the instance of the Court. Section 438(3) Cr. P.C. contemplates such a situation and provides for such an eventuality. We are inclined to reproduce it over again in order to substantiate our point. It lays down: 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 cognisance 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). 21. Thus if the petitioners in the instant case have been without the interim protection, which this Court granted them, they could have been arrested by the police or even at the instance of the Court. 22. A situation very much akin to the situation in hand arose before the Punjab & Haryana High Court in the case of Puran Singh v. Ajit Singh and Anr., reported as 1985 Cri. L.J. 897 . While dealing with the said situation it was observed.... "The main governing factor for the exercise of jurisdiction under Section 438, Cr. P.C., is the apprehension of arrest by a person accused of the commission of a non-bailable offence. The section makes no distinction whether the arrest is apprehended at the hands of the police, or at the instance of the Magistrate. "The main governing factor for the exercise of jurisdiction under Section 438, Cr. P.C., is the apprehension of arrest by a person accused of the commission of a non-bailable offence. The section makes no distinction whether the arrest is apprehended at the hands of the police, or at the instance of the Magistrate. The issuance of a warrant by the Magistrate against a person, to my mind justifiably gives rise to such an apprehension and well entitles a person to make a prayer for his anticipatory bail. The High Court or the Court of Session may, however, decline to exercise its powers under Section 438(1), Cr. P.C. keeping in view the fact that the Magistrate has summoned the accused through bailable warrant - i.e., a relief almost similar to what can be granted by the Court under Section 438(1), Cr. P.C. yet that does not mean that the Court has no jurisdiction to grant anticipatory bail to such an accused person. The grant of bail under Section 438(1) by the High Court or the Court of Session is, to my mind, 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." 23. A case in which an accused person applied for bail in anticipation of his arrest at the stage of committal proceedings before the Magistrate came up for hearing before a Division Bench of the Madhya Pradesh High Court. The question which cropped up for consideration was as to whether an accused was entitled to apply for anticipatory bail at such a belated stage that of committal proceedings? The above question was replied in the affirmative. It was observed in Ramsewak and others v. State of M.P., 1979 Cri. L.J. 1485 ..... "The words and language of Section 438(1) and (3) are so very clear and unambiguous so as to lead to the only irresistible conclusion that, whenever any person apprehends that he is likely to be arrested in a non-bailable offence, he may apply either to the High Court or Court of Session for grant of anticipatory bail, either before his actual arrest or during the course of committal proceedings if (he) apprehends that he is likely to be committed under custody by the Magistrate while committing the case to the Court of Session. 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 apprehensions continue even at the stage of committal Court proceedings there as nothing in the section which debars him from applying for an anticipatory bail, in case of his apprehended commitment under custody. If it were not so, the provision would be rendered nugatory and the very object and purpose of the legislature to save the person from undergoing the rigours of jail even for few days, specially when it is yet to be seen whether prosecution is false or not would be frustrated" 24. The above view which we are taking also finds support from the observations of the Andhra Pradesh High Court (Full Bench) in Smt. Sheik Khasim Bi v. The State (4), AIR 1986. AP 345 ..... "For all the aforesaid reasons we hold that the filing of a charge-sheet by the police and issuing of a warrant by the Magistrate do not an end to the power to grant bail under Section 438(1), Cr. P.C. and on the other hand we are of the view that the High Court of the Court of Session has power to grant anticipatory bail under Section 438(1) to a person after the Criminal Court has taken cognisance of the case and has issued process viz., the warrant of arrest of that accused person." 25. The above view was reiterated by a Full Bench of the Madhya Pradesh High Court as reported in Nirbhay Singh and Another v. State of M.P. 1996 (1) Cri 238 (H.C.) . "Section 438 speaks of a person having reason to believe that he may be arrested on an 'accusation'. There may be an accusation even before a case is registered by police. After the registration of the case, filing of the charge-sheet or filing of the complaint or taking cognisance or issuance of warrant, the accusation will not cease to be an accusation. At the later stage. there may be stronger accusation or more evidence. Nevertheless, the accusation survives or continues Section 438 speaks, of apprehension and belief that he may be 'arrested'. At the later stage. there may be stronger accusation or more evidence. Nevertheless, the accusation survives or continues Section 438 speaks, of apprehension and belief that he may be 'arrested'. There is no limitation in the language employed by the legislature indicating that the arrest contemplated is an arrest by the police of their own accord or that arrest by the police on a warrant issued by the Court will not attract Section 438. The language used is clear and unambiguous, namely. apprehension of "arrest on an accusation" Considering the legislative purpose underlying the provision and the clarity of the language used in the section we do not find any Justification to import anything extraneous into the interpretation so as to restrict the scope or vitality of the provision. It is not as if circumstances justifying an application under Section 438 would disappear once a Magistrate takes cognisance of the offence or even after he passes an order committing the case to the Sessions Court." The Division Bench of Delhi High Court had further held that the powers of the Court to grant anticipatory bail are very wide unlike the powers of a subordinate Court which is riddled and hedged by restrictions. 7. Similar view was reiterated by Full Bench of Calcutta High Court in Shamim Ahmed And ors. v. State (2003) Criminal Law Journal 2815 , it was held therein that in a complaint case under Section 200 Cr.P.C. accused can file an application for anticipatory bail. It was held that the provisions under Section 438 Cr.P.C. empowering the Court of Sessions and High Court to grant anticipatory bail applied to all non-bailable offences and is not confined to offence triable exclusively by the Courts of Sessions or mode of summoning the accused. 8. The natural corollary of the above interpretation is that if in pursuance of the bailable warrants, accused appear before the Court of Magistrate in case of a non-baiable offence, there is every apprehension that the said Court may deny bail to the accused and send him behind the bars, therefore, to ward off such an eventuality, the Courts have held that accused has a lawful remedy to approach Court of Sessions and High Court for grant of pre-arrest bail. 9. 9. A Full Bench of Andra Pradesh High Court in Sheik Khasim Bi v. State 1986 AIR 345 has held that where process is issued by the Magistrate by issuing arrest warrant, anticipatory bail is maintainable and powers of the Court are not restricted in any manner. 10. Thus, it can be safely inferred that suspicion of arrest or that the accused shall be sent behind the bars is sufficient to apply for pre-arrest bail. A Full Bench of Madhya Pradesh High Court in Nirbhay Singh & Anr. v. State of Madhya Pradesh 1995 (o) MPLJ 296 had also approved the ratio of law laid by Division Bench of Punjab & Haryana High Court by observing as under:- "14. In our opinion, the conflict between an order of anticipatory bail and non-bailable warrant has to be met in a pragmatic manner striking a balance between individual's right to personal freedom and the invocation of right of the police and the procedure required to be followed by a Magistrate. Where an order of anticipatory bail is passed after issue of non-bailable warrant of arrest by a Magistrate, the duty of the police officer entrusted with execution of the warrant would be to arrest the person and produce him before the Magistrate who thereupon shall deal with the accused as required by the order of anticipatory bail. 15. In view of what we have indicated above, we are in respectful agreement with the view taken by the High Court of Punjab and Haryana that an application under Section 438, Criminal Procedure Code would be maintainable even after the Magistrate issued process under Section 204 or at the stage of committal of the case to the Sessions Court or even at a subsequent stage, if circumstances justify the invocation of the provision. This is not to say that the jurisdiction under Section 438 of the Code is to be freely exercised without reference to the nature and gravity of the offence alleged, the possible sentence which may be ultimately imposed, the possibility of interference with the investigation or the witnesses and public interest. With great respect, we are unable to agree with the view taken by the High Court of Rajasthan." 11. Thus, the argument that where Court of Magistrate has issued bailable warrants, anticipatory bail will not lie being devoid of merit is liable to be rejected. 12. With great respect, we are unable to agree with the view taken by the High Court of Rajasthan." 11. Thus, the argument that where Court of Magistrate has issued bailable warrants, anticipatory bail will not lie being devoid of merit is liable to be rejected. 12. Thus, no ground for cancellation of bail is made out and the present application is dismissed.Application dismissed. *******