Andhra HC (Pre-Telangana)
M.R. Vijaya Kumar And Ors. vs State Of Andhra Pradesh on 29 November, 1986
ORDER
1. The petitioners are residents of Hyderabad. They are connected with M/s. Vajra Chemicals Private Limited, a Company registered under the Indian Companies Act and the factory is situated in Plot No. 70-B I. D.A., Jeedimetla, Hyderabad. The factory manufactures Ether Solvent and Ether Anaesthatics bottles and sells them to medical shops and Government Department. The petitioner filed his application under S. 438 Cr.P.C. alleging that they apprehend that they may be arrested at any time in connection with Cr. No. 499/86 of Excise Prohibition, Enforcement Wing, City Unit, Coimbatore (Urban), Tamil Nadu, and to release them on such terms and conditions as this Court deems fit in the circumstances of the case.
2. Originally this application was filed impleading the State of Tamil Nadu only. As my learned brother Lakminarayana Reddy, J. entertained a doubt about its maintainability, the record was returned to the learned counsel for the petitioners, and the State of Andhra Pradesh was substituted in place of State of Tamil Nadu as respondent. It must be noted here, that the State of Andhra Pradesh is in no way concerned with the crime that has been registered at Coimbatore. The instructions, if any, that may be furnished by the learned Public Prosecutor are only after obtaining instructions from Tamil Nadu only. The case is registered for the offences under S. 4(1)(a) Transport, Tamil Nadu Prohibition Act, 1937 read with Rr. 5 and 6 of Tamil Nadu Spurious Essences Rules 1972 and Sections 5 and 7 of Tamil Nadu Prohibition Act.
3. The circumstances that necessitated for registering Cr. No. 499/86 are, that on 4-11-1986 at about 10.00 p.m. at Kaniamuthur Fathima Service Centre Petrol Bunk and Aruna Theatre, the Excise party waited apprehending that there was illicit transportation of spirit and they found a lorry coming at a high speed on Coimbatore-Palghat main road and when they tried to stop it, the lorry sped away with high speed without stopping and ultimately the lorry was chased by the Excise party and they nabbed three persons in the lorry. One person by name Ashok Kumar of Karka Village, Rangareddy District was also there and when they checked the lorry, they found a total quantity of 12,000 litres of rectified spirit. On that basis, they registered the Crime.
4. The petitioner's case is that on seeing a newspaper report that M/s. Vajra Chemicals (P) Ltd. is also involved in this case, they filed this present petitioner apprehending that they may be arrested at any time.
5. The offence was committed in Tamil Nadu State and the application under S. 438 Cr.P.C. for anticipatory bail has been filed in this State i.e. Andhra Pradesh. The question whether a Court can grant bail if the offence has been committed in another State, has been considered by the Bombay High Court in N. K. Nayar v. State of Maharashtra, 1985 Cri LJ 1887. In that case the Bombay High Court considered two applications for bail. In one application the offence is stated to have been committed at Sonepat Dist. of Haryana State and the petitioners therein are residents of Bombay and they apprehend that on the basis of the F.I.R. which has been filed at Rai Police Station in Sonepat, they would be arrested. In another application, the Regional Provident Fund Commissioner of Gujarat State issued a notice to the applicant calling upon him as to why appropriate action for non-payment of the Company's contribution of the Provident Fund should not be taken against them, and they apprehend that a prosecution for having committed offence under the Provident Funds Act would be filed in Gujarat State and they would be arrested and they are permanent residents of Bombay City. One offence has been committed in Haryana State and the other at Gujarat and the Petitioners are residents of Bombay City, being the Directors of the respective companies. The finding that has been arrived at by the Bombay High Court in the above case is that "if the arrest is likely to be effected within the jurisdiction of a particular High Court the concerned person has the remedy of applying to that High Court for anticipatory bail even if the offence might have been committed in some other State." The reasoning that has been adopted by the Court is to the effect that some limited time may be granted for the persons for approaching the concerned court for grant of bail under sections 437 and 439, Cr.P.C. The decision of the Karnataka High Court in Dr. L. R. Naidu v. State of Karnataka, 1984 Cri LJ 757 and of the Calcutta High Court in B. R. Sinha v. State, 1982 Cri LJ 61 have been referred to in that decision. In one case, the period has been limited to one month and the order was to the effect that there would not be any effect with regard to the order passed by it after the lapse of one month. In the Naidu's case (cited supra), the petitioner, a medical practitioner residing in Bangalore city has filed the application in Bangalore for anticipatory bail on the apprehension that the Cannanore Town Police have registered a case in a crime against him for an offence under S. 420, I.P.C. basing on the report of the Manager of the State Bank of India, Cannanore Branch.
6. In the instant case, no attempt has been made by the petitioners to approach the Tamil Nadu Courts. The offence is said to have been committed on 4-11-1986. The paper publication is on 6-11-1986. It is not as if the petitioner's counsel without knowing anything or obtaining any information from the concerned Court filed this petition. The petitioners obtained a copy of the F.I.R. In that F.I.R. the names of the petitioners are not mentioned. But the contents in the F.I.R. disclose the serious nature of the offence that has been committed by the persons involved in the case. Coming to the facts of the case, when the Excise Party wants to stop the vehicle, it sped away without stopping and ultimately after a chase by the officials, they stopped the vehicle and found that rectified spirit of huge quantity was being transported without a valid licence. Under Tamil Nadu Prohibition Act, 1937, the offence is punishable with an imprisonment for five years. Even if the reasonable apprehension that has been contended by the counsel is taken into consideration they have not approached that Court from 6-11-1986 till the date of the filing of this petition i.e. on 18-11-1986 and what the petitioners did during this period was not explained. In the Nayar's case (cited supra) one month's time was granted for obtaining necessary orders from the concerned Court. Moving this Court at Hyderabad without taking any steps even though there is ample time at their disposal, I feel, is a serious circumstances which goes against the petitioners. Ss. 4(1)(a), 4(1) and 15(1)(c) of the Tamil Nadu Prohibition Act, 1937 are relevant in this connection. S. 4(1)(a) reads :
"4. Prohibition of the manufacture of traffic in and consumption of liquors and intoxicating drugs :
(1) Whoever (a) imports, exports, transports or possesses liquor or intoxicating drug; or
(b) to (k) xxx xxx xxx xxx (1) In the case of an offence falling under Clause (a), Clause (b), Clause (f), Clause (g), Clause (h), Clause (i), Clause (jj) or an offence falling under Clause (j) in so far as it relates to an act specified in any of the clauses aforesaid, with rigorous imprisonment for a term which may extend to five years and with fine which may extend to seven thousand rupees;
15-C(1). Certain offences to be non-bailable - (1) The offences punishable under this Act with rigorous imprisonment for a term which may extend to three years and upwards shall be non-bailable and the provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) with respect to non-bailable offences, shall apply to those offences."
7. The offence alleged in this case is a non-bailable offence and it is within the knowledge of the petitioners on 6-11-1986 itself. The have not taken any steps for moving the concerned Court. Even till this day i.e. 29-11-1986 no steps have been taken to move the concerned Court. When the party was not diligent and the offence is a serious one and particularly transportation of rectified spirit without valid permit under the guise of Formaldehyde contravening the Rules, I hold that no case has been made out for grant of anticipatory bail.
8. Due caution has to be exercised by the Sessions Judges while considering the petitions where offence has been committed in some other State other than their jurisdiction. In certain cases, to circumvent a warrant that has already been passed and brought by the concerned State Police, the possibility of suppressing that fact and filing an application under S. 438, Cr.P.C. also cannot be ruled out. For an offence under S. 438, Cr.P.C. within the jurisdiction of that Court, the Court will have the assistance of the Public Prosecutor. While considering the offence committed outside the State the possibility of getting any assistance from the local Public Prosecutor has to be ruled out. It in that context a clear distinction has to be made for considering the grant of anticipatory bails for a crime committed within the jurisdiction and also outside the State. The Courts must see the nature of the offence. Even in such cases, the period of limitation mentioned in the decisions cited above has to be borne in mind and it should not be a blanket order. Even if discretion is exercised for granting the bail, the grant of one month's time should only facilitate them to approach the concerned Courts for obtaining necessary reliefs and ordinarily the effect of the order granted by the Courts should not be more than one month.
9. The consistent view taken by the Bombay and Calcutta High Courts is to the effect that the concerned Courts have got jurisdiction to entertain the cases, even if the offences are said to have been committed outside the State. S. 438, Clause (1), Cr.P.C. says that the Court may, if it thinks fit, issue necessary directions for bail and sub-clause (2) confers (power ?) on the court to issue such directions as it deems fit including the conditions mentioned in Cls. 1 to 4 in that Section.
10. The discretionary power can be exercised by imposing necessary restrictions and conditions and it would not be necessary that anticipatory bail should be limited in point of time and every thing will depend on the facts of each case. Taking into consideration that impending prosecutions are likely to be launched in outside the State, the applicants should be granted one month's time so as to enable them to move the appropriate Court for seeking appropriate orders. In this context the observation of the Bombay High Court in N. K. Nayar v. State of Maharashtra, (1) 1985 Cri LJ 1887 is as follows :
"In view of this position, we intend to exercise our powers under S. 438, Cr.P.C. by granting anticipatory bail for a period of one month i.e. till the end of 12th April, 1985 so as to enable the applicants in both the applications to move appropriate Courts for seeking appropriate orders. It is made specifically clear that this anticipatory bail shall stand automatically vacated and cancelled on 13th April, 1985 if in the intervening period no orders about the grant of bail from the appropriate Court (i.e. the Courts where the cases are likely to be filed) are obtained."
11. This petition has been rejected on two grounds (1) For not taking steps within a reasonable time as contemplated by the three reported judgments. (2) For not being diligent in taking steps at the concerned Courts even though the petitioners have got knowledge even by 6-11-1986 itself. The petitioners prepared to obtain a copy of the F.I.R. through the Advocate at Coimbatore and they did not like to approach that Court. The extraordinary remedy available to him basing on the decision of the Court cannot be taken advantage of by the party concerned.
12. Therefore, on the merits I hold that the petitioners are not entitled for anticipatory bail. The petition filed under S. 438 Cr.P.C. for anticipatory bail for the offence committed in Tamil Nadu State is maintainable.
Order accordingly.