Rajasthan High Court - Jaipur
Satya Deo Rajpurohit And Ors. vs State Of Rajasthan on 13 September, 2001
Equivalent citations: 2002(2)WLN445
Author: H.R. Panwar
Bench: H.R. Panwar
JUDGMENT H.R. Panwar, J.
1. This bail application has been filed under Section 438*Cr.P.C. A complaint was filed by Smt. Savita w/o Dr. Rajnish against the petitioners before Chief Judicial Magistrate, Bikaner for offences under Sections498-A and 406 I.P.C., which was forwarded to S.H.O., Mahila Police Thana, Bikaner, by the learned Chief Judicial Magistrate, Bikaner for investigation and enquiry under Sec, 156(3) Cr.P.C. on the basis of the complaint, the police registered Crime Report No. 33 dated 1.6.2001 and proceeded with investigation.
Apprehending arrest, the petitioners filed this bail application under Section 438 Cr.P.C. seeking pre-arrest bail.
2. The bail application came up before this Court on 7.6.2001. The learned Public Prosecutor (for short 'P.P.') was directed to procure the case diary within two weeks and meanwhile, it was directed that the petitioners shall not be arrested in connection with the said F.I.R. vide order dated 27.6.2001, the matter was adjourned to 5.7.2001 and the interim order dated 7.6.2001 was extended. On 5.7.2001, the learned P.P. submitted that the case diary has not yet been received and sought further time to requisition the case diary. Two weeks time was allowed by this Court and the interim order was extended. On 20.7.2001, the matter was adjourned for two weeks and it was directed to continue the interim order till then. On 6.8.2001, again the matter was adjourned to 20.8.2001 and the interim order was extended. Again on 21.8.2001, the matter was adjourned to 27.8.2001 and the interim order was extended. On 27.8.2001, the matter was adjourned to 4.9.2001 with the direction to continue the interim order. On 4.9.2001, this bail application was listed before me and on the joint request of the learned Counsel for the parties, the matter was adjourned to 7.9.2001 with the direction to continue the interim order dated 7.6.2001. On 7.9.2001, the learned P.P. submitted that the case diary of this case has been received from the police.
3. The learned Counsel for the complainant Mr. Sandeep Mehta raised a preliminary objection with regard to maintainability of this bail application on the ground that the petitioners have approached this Court directly without first moving a bail application under Section 438 Cr.P.C. before the Sessions Judge having jurisdiction.
4. I have heard the learned Counsel for the parties present on the preliminary objection raised by the learned Counsel for the complainant as well as on merits of this bail application.
5. It was contended by the learned Counsel for the complainant that no application under Section 438 Cr.P.C. would lie directly to High Court without having been first moved before Sessions Court. He relied on the judgments of this Court in Manzoor Ahmed v. State of Rajasthan 1985(2) WLN 22 : 1985 RLR 774; Kamal v. The State of Rajasthan 1991 RCC 431 and Bhoora Ram v. The State of Rajasthan 1976 RCC 222.
6. The learned Counsel appearing for the petitioners contended that the High Court or the Court of Session has concurrent jurisdiction to entertain an application under Section 438 Cr.P.C. The learned Counsel for the petitioners relied on a judgment of this Court in Smt. Vidhyavati and Ors. v. State of Rajasthan 1989 Cr.L.R. (Raj.) 228 and judgment of Anhra Praesh High Court in Y. Chendrasekhara Rao and Ors. v. Y.V. Kamala Kumari and Ors. 1993 Cri. L.J. 3508.
Section 438 Cr.P.C. reads as under:
438. Direction for grant of bail to person apprehending arrest.--(1) when any person has reason to believe that he may be arrested on an accustation 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; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(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).
7. From bare reading of Section 438(1) Cr.P.C., it is obvious that the High Court or Court of Session have concurrent jurisdiction to grant a direction for anticipatory bail. The language of the section is very specific and provides that a person apprehending arrest on an accusation of having committed a non-bailable offence, may apply to the High Court or the Court of Session for a direction that in the event of his being arrested, he shall be/released on bail. Since High Court or Court of Session have got concurrent jurisdiction in the matter, either of them could be moved by the concerned person apprehending arrest.
8. Although the High Court has concurrent jurisdiction with the Court of Session to grant bail under Section 438 Cr.P.C., but it is desirable that the ordinary practice should be that the lower court should be first moved in the matter, though in exceptional cases or special circumstances, the High Court may entertain and decide an application for bail under Section 438 Cr.P.C. This is specially important because any expression of opinion by the superior court is likely to prejudice, if not frequently, in cases few and far between, the trial in the lower court.
9. In the matter of bail application under Section 438 Cr.P.C., the voice of the Court of Session is not final but is subject to revisional or appellate jurisdiction of High Court, though, High Court and the Court of Session have concurrent jurisdiction in the matter of grant of bail under Section 438 Cr.P.C., yet it appears desirable, for more than one reason, that the Court of Session should be approached first in the matter though there is no legal bar to a party approaching directly to this Court without first moving to the Court of Session. In the hierarchical set up of Courts, the High Court exercises superintendence and control over the Court of Session, the latter is subordinate to the former and, therefore, it is desirable that the ordinary practice should be that the lower court should be first moved in the matter of grant of bail under Section 438 Cr.P.C. but in exceptional cases or in cases having special circumstances, the High Court may entertain and decide an application for bail under Section 438 Cr.P.C. Section 438 Cr.P.C. gives concurrent power of granting bail, both by High Court and the Court of Session. There is no provision in the Criminal Procedure Code, which requires a person seeking bail under Section 438 Cr.P.C. to first move to the Court of Session and then only can move for bail to High Court, as in other analogous provision in the Criminal Procedure Code. It is normally to be presumed that Court of Session would be first approached for grant of bail unless an adequate case for not approaching the Court of Session has been made out. This, of course, is not an inflexible rule. But whenever concurrent jurisdiction is vested by the Statute simultaneously in two Courts, one superior to other, it is appropriate that the party should first move to the inferior Court. The rule is not an absolute rule. There may be cases where the interest of justice may be defeated if a party is required to first move Court of Session before approaching High Court. The rule must then give way to the interest of justice.
10. In Manzoor Ahmed's case (supra), this Court held that the petitioner should have first moved the Court of Session before coming to this Court under Section 438 Cr.P.C. In Kamal's case (supra), this Court while considering the bail application filed by various persons under Section 438 Cr.P.C. dismissed the bail application of one of the petitioners Chhaganlal on the ground that he should first approach the Sessions Court. In Kamal's case (supra), the issue regarding concurrent jurisdiction of High Court and Court of Session was not considered. In Bhoora Ram's case (supra), this Court held that jurisdiction of High Court and the Court of Session are concurrent. A person seeking bail under Section 438 Cr.P.C. should first approach the Court of Session. It should be held that in some really special circumstances the High Court can be approached in the first instance. In Smt. Vidhyavati's case (supra), this Court entertained the bail application filed by the petitioners therein under Section 438 Cr.P.C. directly without first moving to the Court of Session and observed as under:
It is true that in this case the accused petitioners have moved this Court directly without first moving the Sessions Judge and have also not indicated any special reasons for departure from the normal practice but I find that this bail application was moved on 9th December, 1988 and during this period it has been placed for orders before the Court on a number of occasions. The case diary has also sent for and directions have also been issued that the petitioners may not be arrested. Since the case diary has also been received, I consider it appropriate to consider the bail application on merits.
In Y. Chendrasekhara Rao's case (supra) Division Bench of the Andhra Pradesh High Court while considering the maintainability of the bail application under Section 438 Cr.P.C. in the High Court without the party approaching the Court of Session in the first instance, held that it is not obligatory under Section 438 Cr.P.C. to move the Court of Session in the first instance. It is always open to the High Court when an application is filed under Section 438 Cr.P.C., without first moving the Court of Session, to consider all the circumstances, and if the situation warrants, the High Court can direct the party to move the Court of Session. Passing of such an order in consequence of exercise of discretion is different from insisting upon the party to move the Court of Session in the first instance as an inflexible rule of practice.
11. Thus, the ratio of the aforesaid judgments is that the High Court has concurrent jurisdiction with the Court of Session to grant bail under Section 438 Cr.P.C. It is true, in the hierarchical set up of Courts, the High Court exercise superintendence and control over the Court of Session and, therefore, it is desirable that the ordinary practice should be that the lower court i.e. the Court of Session should be first moved for grant of bail under Section 438 Cr.P.C. though in any exceptional case with special circumstances, the High Court may entertain and decide the application for bail under Section 438 Cr.P.C. In my considered opinion, this is only in exceptional and cases of special circumstances that an application for bail under Section 438 Cr.P.C. should be made directly to the High Court and in absence of special or exceptional circumstances, the bail application under Section 438 Cr.P.C. should not be entertained by the High Court.
12. Now coming to the present case whether the instant bail application falls under the category of 'exceptional case' or the case of 'special circumstances' requiring this Court to entertain the present bail application filed by the petitioners under Section 438 Cr.P.C. It is contended by the learned Counsel for the petitioners that the facts narrated in the F.I.R. by the complainant are far from truth. The complainant has tried to implicate almost all the members of the family even though some of them on the relevant date of the occurrence as shown by the complainant, were not even present in Jodhpur. From the various facts mentioned in the bail application, it shows that the marriage of the complainant was solemnised on 27.4.1986 at Bikaner and the marriage party went only in one ambassador car consisting of three adult persons and two children. It was contended by the learned Counsel for the petitioners that it is not the case of the complainant that the persons named in the F.I.R., were the members of the marriage party. From the facts stated, it appears that many of the petitioners were not the members of the marriage party. Even from the addresses given in the bail application, petitioner No. 3 is residing at Pali Marwar, petitioners No. 6 and 7 are residing at Mumbai, petitioners No. 8 and 9 at Hyderabad and petitioners No. 10 and 11 at Bikaner. In these circumstances, the veracity and correctness of the case of the complainant is yet to be investigated.
13. I have perused the bail application supported by the affidavit of petitioner No. 1, the written submissions supported by the affidavit of petitioner No. 1, which was not controverted by the complainant or the P.P., the application filed by the complainant before the learned Sessions Judge, Bikaner, for dissolution of marriage under Section 13 of the Hindu Marriage. Act and the fact that this Court had already entertained the bail application filed by the petitioners and passed interim orders in favour of the petitioners on various dates i.e. on 7.6.2001 by which it was directed that "meanwhile the petitioners shall not be arrested in connection with F.I.R. No. 33/2001, which was further extended on 27.6.2001, 5.7.2001, 20.7.2001, 6.8.2001, 21.8.2001, 27.8.2001, 4.9.2001 and on 7.9.2001. The case diary was requisitioned and the same has been received by the learned P.P. Petitioner No. 1 is a practicing Advocate of this Court aging about 66 years and keeping infirm, petitioner No. 2 is an old lady, petitioner No. 3 is Head of the Department of Govt. Law College, Pali Marwar; petitioner No. 4 a young married lady w/o petitioner No. 3 and rest of the petitioners are residing at Mumbai, Hyderabad and Bikaner and some of them are ladies. In this view of the matter, once this Court has entertained the bail application and granted interim order, which was extended on various dates as noticed above in favour of the petitioners, it would not be proper at this stage to return the bail application to the petitioners for filing before the Court of Session.
14. In the facts and circumstances of the case, I consider it just and proper to issue direction and grant anticipatory bail to the petitioners till 21.11.2001. The petitioners are directed to move the regular court for bail on its expiry. Accordingly, it is directed that in the event of arrest of the petitioners Satya Deo Rajpurohit s/o Shri Shri Jas Raj, Advocate; Mrs. Kamlesh w/o Shri Satya Deo Rajpurohit; Madhu Sodan Rajpurohit s/o Shri Satya Deb Rajpurohit; Mrs. Bahgyawanti Rajpurohit, Advocate w/o Madhu Sodan Rajpurohit; pr. Rajneesh Rajpurohit, Advocate s/o Shri Satya Deo Rajpurohit; Bheru Lal Purohit s/o Shri Pokar Ji; Smt. Shakuntla Rajpurohit w/o Shri Bheru Lal Purohit; Mahesh Kumar Rajpurohit s/o Shri Peer Singh; Mrs. Anamika Rajpurohit w/o Shri Mahesh Kumar Rajpurohit; Shubh Karan Purohit S/o Shri Chankya Prasad and Smt. Kushal (in F.I.R. name given as Bhanwari Devi) w/o Shri Subh Karan Purohit in F.I.R. Case No. 33 dated 1.6.2001, Mahila Police Station, Bikaner, they shall be released on bail till 21.11.2001 provided each of them furnishes a personal bond in the sum of Rs. 20,000/- (Rs. twenty thousand only) with two sureties of Rs. 10,000/- (Rs. ten thousand only) each to the satisfaction of the Investigating Officer on the following conditions:
(i) that they shall make themselves available for interrogation by a police officer as and when required;
(ii) that they shall not, directly or indirectly, make any incumbent, 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; and
(iii) that they shall not leave India without the previous permission of the Court.