Research › Search › Judgment

Jharkhand High Court · body

2014 DIGILAW 891 (JHR)

Sheikh Anwar @ Sk. Anwar v. State of Jharkhand

2014-08-22

SHREE CHANDRASHEKHAR

body2014
ORDER 1. Heard the learned counsel appearing for the parties and perused the documents on records. 2. The applicant has approached this Court seeking grant of anticipatory bail in connection with Ratu P.S. Case No. 69 of 2013 registered under Sections 406/420/468/ 471 of the Indian Penal Code. 3. The brief facts of the case as disclosed in the complaint case which was filed on 07.09.2012 are that, on 14.06.2011 an offer was made by the applicant to the complainant for sale of a piece of land and in consideration thereof Rupees Ten lacs was paid on two different dates i.e., on 03.07.2011 and 07.07.2011 by the complainant. It is stated that on 15.07.2011 the applicant promised to execute a sale-deed with respect to the property in question however, on 14.08.2011 he refused the request to execute the sale-deed. The complainant issued legal notices on 31.08.2011, 06.03.2012, 20.07.2012 and 12.11.2012. It is further alleged that recognising the payment of Rs. 10 lacs to him, the applicant in June, 2012 refunded an amount of Rs. 10,000/to the complainant. The complaint petition was filed and it was referred to the police which lodged a first information report on 15.04.2013. A charge-sheet is said to have been submitted on 30.08.2013. Cognizance of the offence has been taken on 09.09.2013 and summon has been issued for appearance of the accused persons. Before that, a warrant of arrest was already issued against the applicant on 13.06.2013 which could not be executed and thereafter, on 15.07.2013 on the application made by the Investigating Officer, the learned trial court directed issuance of process under Section 82 Cr.P.C. Subsequently, the process under Section 83 Cr.P.C. was ordered on 23.08.2013. 4. At the outset, the learned A.P.P. and the learned counsel appearing for the Informant relying on the judgments of the Hon'ble Supreme Court in “Lavesh Vs. State (NCT of Delhi)”, reported in (2012) 8 SCC 730 and “State of Madhya Pradesh Vs. Pradeep Sharma” reported in (2014) 2 SCC 171 raised the preliminary objection of maintainability of the present anticipatory bail application. It is submitted that in view of the law laid down by the Hon'ble Supreme Court in the aforesaid cases, the applicant against whom process under Section 82 Cr.P.C. has been issued is not entitled for grant of anticipatory bail. 5. It is submitted that in view of the law laid down by the Hon'ble Supreme Court in the aforesaid cases, the applicant against whom process under Section 82 Cr.P.C. has been issued is not entitled for grant of anticipatory bail. 5. The learned counsel appearing for the applicant submitted that a bare perusal of order dated 12.07.2013 would indicate that it does not satisfy the requirement of law as laid down under Section 82 Cr.P.C. Referring to Section 73 Cr.P.C., the learned counsel for the applicant submits that before issuing process under Section 82 Cr.P.C, the court below must arrive at a conclusion that the accused besides avoiding arrest was absconding or concealing himself so that the warrant of arrest is not executed and only if these jurisdictional facts are available on record, a process under Section 82 Cr.P.C. can be ordered. Referring to judgment in “Ujjam Bai Vs. State of Uttar Pradesh”, reported in AIR 1962 SC 1621 , it is submitted that since the order passed by the learned trial court ordering issuance of process under Section 82 Cr.P.C. has been passed in absence of jurisdictional facts, it would be an illegal order and thus nullity which cannot be taken note of and this Court can ignore the same. Relying on the judgments of the Hon'ble Supreme Court in “Ajay Kumar Parmar Vs. State of Rajasthan”, reported in (2012) 12 SCC 406 , “State of Punjab Vs. Davinder Pal Singh Bhullar & Ors.” reported in (2011) 14 SCC 770 , “Rajasthan State Industrial Development and Investment Corporation Vs. Subhash Sindi Cooperative Housing Society, Jaipur & Ors.” reported in (2013) 5 SCC 427 , the learned counsel for the applicant submits that the order dated 12.07.2013 being a nullity in the eyes of law, even if the said order has not been challenged by the applicant, it cannot be a bar for entertaining the present anticipatory bail application filed on behalf of the applicant. Referring to the judgment of the Hon'ble Supreme Court in “Surinder Singh @ Shingara Singh Vs. State of Punjab” reported in (2005) 7 SCC 387 , the learned counsel for the applicant submits that the guidelines issued in a criminal matter are generally directory and those cannot be said to be laying down absolute law, in so far as grant or refusal of bail is concerned. 6. State of Punjab” reported in (2005) 7 SCC 387 , the learned counsel for the applicant submits that the guidelines issued in a criminal matter are generally directory and those cannot be said to be laying down absolute law, in so far as grant or refusal of bail is concerned. 6. The learned counsel for the complainant has submitted that the law laid down by the Hon'ble Supreme Court in the cases of “Lavesh” and “Pradeep Sharma” is binding on all Courts and the judicial discipline requires that the judgment of the Hon'ble Supreme Court in the aforesaid cases should be followed by the High Courts. It is further submitted that in an application under Section 438 Cr.P.C. it is not open to the High Court to examine the validity of the order issuing process under Section 82 Cr.P.C. 7. The learned counsel for the applicant relied on paragraph 12 of the judgment in “Lavesh Vs. State (NCT of Delhi)” (supra) wherein the Hon'ble Supreme Court held that “normally when the accused is “absconding” and declared as a “proclaimed absconder”, there is no question of granting anticipatory bail”. Stressing on the word “normally” used in paragraph 12 which is noticed in paragraph 16 of the judgment in “Pradeep Sharma” (supra), the learned counsel for the applicant has submitted that issuance of process under Section 82 Cr.P.C. cannot be taken as an absolute bar for not entertaining the anticipatory bail application. The learned counsel for the applicant has also referred to the judgment of the Hon'ble Supreme Court in “A.R. Antulay Vs. R.S. Nayak” reported in AIR 1988 SC 1531 and contended that an illegal order passed by the court or tribunal can be overlooked even by the same court. 8. Before adverting to the contention raised by the counsel for the applicant, it is worth noticing that in the Code of Criminal Procedure, 1898, there was no provision similar to Section 438 in the Code of 1973. In view of the recommendation of the Law Commission of India in its 41st Report and 48th Report a device was evolved enabling the High Court and the Court of Sessions to grant anticipatory bail. In view of the recommendation of the Law Commission of India in its 41st Report and 48th Report a device was evolved enabling the High Court and the Court of Sessions to grant anticipatory bail. The statement of objects and reasons for introducing Section 438 in the Code of Criminal Procedure, 1973 and the legislative history clearly indicate that the provision under Section 438 of the Cr.P.C. has been introduced as an extra ordinary provision. 9. In “Shri Balchand Jain Vs. State of Madhya Pradesh” reported in (1976) 4 SCC 572, the Hon'ble Supreme Court has held as under: “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.” 10. In “Shri Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab” reported in (1980) 2 SCC 565 , a Constitution Bench of the Hon'ble Supreme Court has held that power to release an accused on anticipatory bail is “extra ordinary” in character. 11. While upholding constitutionality of Section 18 of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989, the Hon'ble Supreme Court has held that denying application of provision for anticipatory bail to a person accused of an offence under the Act cannot be considered as violative of Article 14 & 21 of the Constitution of India. Section 438 Cr.P.C. is essentially a statutory right and it cannot be considered as an essential ingredient of Article 21 of the Constitution of India. [State of M.P. & Anr. Vs. Ram Krishna Balothia & Anr.” reported in (1995) 3 SCC 221 ]. 12. At this Stage, it is also important to notice the provision of Section 438 Cr.P.C. The relevant extract of Section 438 of the Cr.P.C. is quoted below: “438. [State of M.P. & Anr. Vs. Ram Krishna Balothia & Anr.” reported in (1995) 3 SCC 221 ]. 12. At this Stage, it is also important to notice the provision of Section 438 Cr.P.C. The relevant extract of Section 438 of the Cr.P.C. is quoted below: “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 nonbailable 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. (iv) Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.” 13. In “Shobhan Singh Khanka Vs. State of Jharkhand” reported in (2012) 4 SCC 684 , the Hon'ble Supreme Court has held that while considering the claim of prearrest bail, the following factors have to be considered: “(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. (iv) Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested.” 14. It is thus clear that the possibility of an accused fleeing from justice is an important consideration for grant or refusal of anticipatory bail by the Court. From a bare reading of Section 438 of the Cr.P.C. and the judgment of the Hon'ble Supreme Court in “Shobhan Singh Khanka” and other cases it is apparent that a mandate not to grant anticipatory bail to an accused against whom process under Section 82 Cr.P.C. has been issued, is implicit in Section 438 Cr.P.C. itself. 15. In “State of Madhya Pradesh Vs. 15. In “State of Madhya Pradesh Vs. Pradeep Sharma” after noticing paragraph 12 in “Lavesh Vs. State (NCT of Delhi)” wherein though the word 'normally' has been used, in “Pradeep Sharma” the Hon'ble Court has held in categoric terms that once process under Section 82 of the Cr.P.C. has been issued anticipatory bail cannot be granted to an accused. 16. The order dated 12.07.2013 whereby process under Section 82 Cr.P.C. has been issued has been assailed by the learned counsel for the applicant on the ground that the said order has been issued only on the ground that the accused has been evading arrest whereas, before issuing process under Section 82 Cr.P.C. the court must record its satisfaction that the accused was absconding or concealing himself so that warrant of arrest is not executed. It is submitted that since these jurisdictional facts are not available on record, order dated 12.07.2013 is without jurisdiction and thus nullity. This contention merits no acceptance. A jurisdictional fact is one on the existence or nonexistence of which depends assumption or refusal to assume jurisdiction by a court, tribunal or an authority. It is not in dispute that the learned Magistrate who has passed order dated 12.07.2013 has jurisdiction over the subject matter and the order dated 12.07.2013 can be subjected to judicial scrutiny on an application filed by the accused in appropriate proceeding. Merely because the learned Magistrate has not recorded its satisfaction as required under Section 82 Cr.P.C., the order does not become without jurisdiction. 17. Referring to the contention of the learned counsel for the applicant that an order which is a nullity can be ignored by the Court, I am of the opinion that the order which is sought to be assailed as nullity cannot be ignored by the Court if the said order is directly in issue. Similarly, an order which is termed as nullity by a party to the proceeding cannot be ignored by the Court unless the Court upon adjudication of the validity of the said order comes to a conclusion that it is a nullity. 18. In “Ittyavira Mathia Vs. Similarly, an order which is termed as nullity by a party to the proceeding cannot be ignored by the Court unless the Court upon adjudication of the validity of the said order comes to a conclusion that it is a nullity. 18. In “Ittyavira Mathia Vs. Varkey Varkey & Anr.” reported in AIR 1964 SC 907 , it has been held that, where a Court having jurisdiction over the subject matter and the party, passes a decree it cannot be treated as a nullity and ignored in subsequent litigation, even if the suit was one barred by time. It is also well settled that the validity of an order which is a nullity can be challenged at any stage and even in execution or collateral proceedings. In “Bhawarlal Bhandari Vs. Universal Heavy Mechanical Lifting Enterprises” reported in (1999) 1 SCC 558 , the Hon'ble Supreme Court has reiterated the observation in “Vasudev Dhanjibhi Modi vs. Rajabhai Abdul Rehman” reported in (1970) 1 SCC 670 which is extracted below: 6. “A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.” 19. The learned counsel for the applicant has relied on observation of Hon'ble Supreme Court in “State of Punjab Vs. Davinder Pal Singh Bhullar & Ors.” reported in (2011) 14 SCC 770 .” From the observation of the Hon'ble Supreme Court in paragraph nos. 105 and 106, I find that the initial order pursuant to which a first information report was lodged, was challenged and held as a nullity by the Hon'ble Supreme Court. 20. The learned counsel for the applicant has also relied on observation of the Hon'ble Supreme Court in “Rajasthan State Industrial Development & Investment Corpn. Vs. Subhash Sindhi Coop. Housing Society, Jaipur & Ors.” reported in (2013) 5 SCC 427 which is extracted below: 18. “The word “void” is used in the sense of incapable of ratification. A thing which is found non est and not required to be set aside, though it is sometimes convenient to do so. There would be no need for an order to quash it. “The word “void” is used in the sense of incapable of ratification. A thing which is found non est and not required to be set aside, though it is sometimes convenient to do so. There would be no need for an order to quash it. It would be automatically null and void without more ado. The continuation orders would be nullities too, because no one can continue a nullity.” 21. It is pertinent to mention that the above observation in “Rajasthan State Industrial Development & Investment Corpn.” has been made by the Hon'ble Supreme Court in a factual background where in a challenge to the acquisition by the subsequent purchasers, the Society, none of the original khatedars had joined the Society. In view of the settled legal proposition that a purchase, subsequent to the issuance of a Section 4 notification in respect of the land, cannot challenge the acquisition proceeding and can only claim compensation as the sale transaction in such a situation is void qua the government, the Hon'ble Supreme Court observed that any encumbrance created subsequent to Section 4 notification would be void and thus, was not required to be set aside. The other cases cited by the counsel for the applicant are also not relevant and are distinguishable on facts. 22. The contention of the applicant is that while hearing a petition for grant of anticipatory bail under Section 438 Cr.P.C., the High Court can look into the legality of process issued under Section 82 Cr.P.C. and if the accused prima facie satisfies the court that the order issuing process under Section 82 Cr.P.C. is unsustainable, the Court can grant anticipatory bail to an accused ignoring the law laid down by the Hon'ble Supreme Court in the aforesaid cases. 23. In my opinion such power cannot be exercised by the High Court while dealing with an application under Section 438 Cr.P.C. It is wellsettled that if there is a specific provision in the Code dealing with a specific subject, other provisions in the Code cannot be resorted to by the Courts. 23. In my opinion such power cannot be exercised by the High Court while dealing with an application under Section 438 Cr.P.C. It is wellsettled that if there is a specific provision in the Code dealing with a specific subject, other provisions in the Code cannot be resorted to by the Courts. It has been consistently held by the Hon'ble Supreme Court that matters pertaining to revisional jurisdiction of the High court cannot be entertained by the High Court in exercise of its inherent power under Section 482 Cr.P.C. It is open to an accused to move the Court seeking quashing of the order issuing process under Section 82 Cr.P.C. however, it is not open to the High Court to grant anticipatory bail to an accused against whom process under Section 82 Cr.P.C. has been issued, ignoring the law laid down by the Hon'ble Supreme Court in “State of Madhya Pradesh Vs. Pradeep Sharma” and “Lavesh Vs. State (NCT of Delhi).” 24. In the judgment of the Hon'ble Supreme Court in “Lavesh Vs. State (NCT of Delhi)” I find that though the word “normally” has been used in paragraph12, in the same paragraph the Hon'ble Supreme Court has observed as under, “We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.” 25. In the case of “Pradeep Sharma” the Hon'ble Supreme court has reiterated the above position in law in the following words:- “It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail.” 26. In view of the above pronouncements by the Hon'ble Supreme Court, it is not open to me to take a different view in the matter. In “Bihar State Govt. Secondary School Teachers Association Vs. Anup Mukherjee” reported in (2012)13 SCC 33, the Hon'ble Supreme Court has reiterated that the High Court cannot ignore Article 141 of the Constitution which clearly states that law declared by this Court is binding on all the Court within the territory of India. In “Fuzlunbi Vs. In “Bihar State Govt. Secondary School Teachers Association Vs. Anup Mukherjee” reported in (2012)13 SCC 33, the Hon'ble Supreme Court has reiterated that the High Court cannot ignore Article 141 of the Constitution which clearly states that law declared by this Court is binding on all the Court within the territory of India. In “Fuzlunbi Vs. K. Khader Vali & Anr.” reported in (1980) 4 SCC 125 , Hon'ble Justice Krishna Iyer has observed as under: 7. No judge in India, except a larger bench of the Supreme Court without a departure from judicial discipline can whittle down, wish away or be unbound by the ratio of the judgment of the Supreme Court.” 27. In view of the aforesaid discussion, I am of the considered opinion that the applicant is not entitled for grant of anticipatory bail and accordingly, the present application is dismissed.