Madras High Court
The vs Inspector on 19 January, 2010
Author: K.N.Basha
Bench: K.N.Basha
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.01.2010 CORAM THE HON'BLE MR. JUSTICE K.N.BASHA Crl.O.P.No.480 of 2010 ORDER
The petitioner apprehends arrest at the hands of the respondent police for the alleged offences under Sections 147, 447, 379, 120 (B) IPC and Section 3(1) of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 in Crime No.671 of 2008 on the file of the respondent police and seeks anticipatory bail.
2.0. Mr.N.Jothi, learned counsel for the petitioner would submit that the case of the prosecution is that an earlier incident took place between the parties on 22.07.2008 and a case was registered in Crime No.650 of 2008 under Sections 147, 148, 427 and 363 IPC. It is submitted that in this case the occurrence is said to have taken place on 25.07.2008 and the case was registered on the basis of the complaint preferred by one Subramani alleging that on the date of occurrence, i.e., on 25.07.2008, four named accused and others had caused damage to the house of the complainant in Crime No.650 of 2008. The said complaint was dated 26.07.2008 and the same was received by the Perundurai police through post and the case was registered in Crime No.671 of 2008 for the alleged offences under Sections 147, 447, 379 and 120(B) IPC and Section 3(1) of the Tamil Nadu Property (Prevention of Damage an Loss) Act, 1992.
2.1. It is contended by the learned counsel for the petitioner that the name of the petitioner was not mentioned in the First Information Report and he has been implicated subsequently only at the time of filing the final report as the petitioner has been arrayed as A-8 out of 18 accused. It is contended that the petitioner has been falsely implicated in this case due to political vendetta. It is submitted that all the other accused have been granted bail and anticipatory bail. The learned counsel for the petitioner would further submit that the petitioner has been served with the summons in P.R.C.No.35 of 2009 on the file of the learned District Munsif-cum-Judicial Magistrate, Perundurai, and the petitioner has appeared before the learned Magistrate for two hearings and the case is posted for committal on 27.01.2010. It is contended that in view of the case is posted for committal, the petitioner is having reasonable apprehension that he may likely to be remanded for judicial custody and as such, the petitioner has been constrained to file this petition seeking for the relief of anticipatory bail.
2.2. It is further pointed out by the learned counsel for the petitioner that as the petitioner has appeared earlier for two hearings before the learned Magistrate and he, being a sitting Member of Legislative Assembly (M.L.A.), is not likely to abscond and he will face the trial and defend the case. Therefore, it is contended that there is absolutely no need for remanding the petitioner for judicial custody at the time of committal.
2.3. In support of his contentions, the learned counsel for the petitioner would place reliance on the following decisions :
(1)Karuna alias Karunakaran V. State by Inspector of Police reported in 1989 L.W. (Cri.) 313 ;
(2)Free Legal Aid Committee, Jamshedpur V. State of Bihar reported in (1982) 3 SCC 378 ;
(3)Annamalai V. Inspector, C.B. (CID), Vellore reported in 1985 L.W. (Crl.) 334 ;
(4)Subbiah, in re. reported in 1981 L.W. Crl.356 ;
(5)Thomas and 3 others, in re. reported in 1982 L.W.(Crl.) 88 ; and (6)P.V.Narasimha Rao V. State (CBI) reported in 1997 Cri.L.J. 961 ;
2.4. By placing reliance on the above said decisions, it is contended by the learned counsel for the petitioner that the Hon'ble Apex Court has taken a view consistently to the effect that in the event of any accused appearing before a Magistrate at the stage of committal, the said accused need not be remanded and on the other hand, he has to be bind over by furnishing sureties and thereafter, the case may be committed to the Court of Session for regular trial. It is also pointed out by the learned counsel for the petitioner that the Delhi High Court in P.V.Narasimha Rao V. State (CBI) reported in 1997 Cri.L.J. 961 has categorically held that in the case where summons only were issued against the accused, an application for anticipatory bail is maintainable.
3. The learned Government Advocate (Crl. Side) would submit that though the name of the petitioner was not mentioned in the First Information Report, on the basis of the collection of materials during investigation, the petitioner has been implicated in this case at the time of filing the final report. It is submitted that the investigation is over and the charge sheet has been filed and the petitioner has already been served with the summons and he appeared twice before the learned Magistrate and the case is now posted for committal in P.R.C.No.35 of 2009 on the file of the learned District Munsif-cum-Judicial Magistrate, Perundurai.
4. I have given my careful consideration to the rival contentions put forward by either side and also perused the materials available on record.
5. The crux of the question arising for the consideration of this Court in this petition is to the effect that whether the petitioner is liable to be remanded for custody in the event of committal of the case to the Court of Session ?
6. The undisputed fact remains that the petitioner has not been implicated as one of the accused in the First Information Report and he has been subsequently implicated at the time of filing the final report as A-8 out of 18 accused for the alleged offences as stated above. It is seen that the investigation is over and the charge sheet has been filed and the case is now posted for committal before the learned Magistrate for committing the case to the Court of Session. It is pertinent to note that the petitioner has already been served with the summons in P.R.C.No.35 of 2009 on the file of the learned District Munsif-cum-Judicial Magistrate, Perundurai, and he has also appeared before the Magistrate for two hearings and it is stated before this Court that the case is posted for committal. Therefore, it is quite reasonable that the petitioner may have reasonable apprehension that in the event of committal, he may be likely to be remanded to judicial custody and he was asked to appear on 27.01.2010 by serving summons.
7. The learned counsel for the petitioner rightly placed reliance on the decision of this Court in Karuna alias Karunakaran V. State by Inspector of Police reported in 1989 L.W. (Cri.) 313. In that decision the case was on the verge of committal and similar prayer was made before this Court. This Court in the above said decision has held as follows :
"Now C.C.No.2302 of 1989 appears to be on the verge of committal. The Supreme Court in Free Legal Aid Committee, Jamshedpur V. State of Bihar (AIR 1982 SC 1463), while considering the provisions enshrined in S.437, 441(3) and 209(b) of the Crl.P.C. observed thus :
"When an accused is released on bail by the Magistrate, the bail is granted to him only during the pendency of the inquiry 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. It would avoid hardship to an accused if the Magistrate, while releasing 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. A Magistrate should normally follow this procedure unless there are any particular reasons or not doing so."
This wholesome principle has been laid down by the Supreme Court taking into consideration the disadvantages caused to the accused and the lack of any benefit for the administration of criminal justice. Though the pronouncement had been made in the light of the provisions under S.209 Cr.P.C., I am of the view that the said principle can be extended while exercising inherent powers under S.482, Crl.P.C. in order to secure the ends of justice. The release of the petitioner had been made under S.167, Crl.P.C. which necessarily has to be given effect to, on the facts of this case, by utilising the provisions of S.482 of the Code of Criminal Procedure. As long as the Court is satisfied that the petitioner will not evade justice and will be available for trial before the Court of Session there will be no impediment for this Court to direct the Magistrate not to remand the accused to custody in the event of commitment but to bind him over on his executing a bond, in a sum as deemed fit by the Magistrate, along with two sureties to ensure his appearance, for trial before the Court of Session."
8. It is also worthwhile to refer to certain other decisions as relied by the learned counsel for the petitioner.
9. This Court in Annamalai, P.R. Vs. Inspector, C.B. (CID), Vellore reported in 1985 L.W. (Crl.) 334 following the decision of the Hon'ble Apex Court in Free Legal Aid Committee's case has held as follows :
"2. In view of the wholesome principle laid down by the Supreme Court, this is a fit case here the Magistrate will have to be directed to release the petitioner on bail as and when an order of committal is made, if there are no other reasons by which such bail cannot be granted. This petition is allowed in this above terms."
10. This Court in an earlier decision in Subbiah, In Re. reported in 1981 L.W. Crl. 356 has held as hereunder :
"S.209 of the Code of 1973 dispenses with the inquiry preliminary to commitment in cases triable exclusively by a Court of Session, irrespective of whether such a case is instituted on a criminal complaint or a police report. If the Committing Magistrate thinks that it is not necessary to commit the accused, who may be on bail to custody, he may not cancel the bail. This has been made clear by the words, 'subject to the provisions of this Code relating to bail' occurring in Cl.(b) of S.209. Therefore, if the accused is already on bail, his bail should not be arbitrarily cancelled."
11. In yet another earlier decision in Thomas, In Re. reported in 1982 L.W. (Crl.) 88 this Court has held as follows :
"This Court on a former occasion, had the opportunity to give such direction to the committing Court not to cancel the bail granted to the accused at the time of committing them for trial to the Sessions Court in Subbiah alias Raju Gounder and others In Re, Crl.M.P.No.4482/81 dt.26.8.1981 = reported in 1981 L.W. Crl. 356. Therefore, justice demands that directions have to be given to the committing Magistrate not to cancel the bail already granted and it will suffice if the accused are bound over to appear before the Sessions Court on the same bonds already executed by the accused and their sureties. The petition is ordered accordingly."
12. The Delhi High Court in P.V.Narasimha Rao V. State (CBI) reported in 1997 CRI.L.J. 961 has held as hereunder :
"22. 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. 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 cognizable 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 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)."
23. ....
24. 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 reported as 1985 Crl.L.J. 897. While dealing with the said situation it was observed ...." The main governing factor for the exercise of jurisdiction under S.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 S.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 S.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 S.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."
25. 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 Crl.L.J. 1485 (P). 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 is 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."
26. 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, 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 put an end to the power to grant bail under S.438(1), Cr.P.C. and on the other hand we are of the view that the High Court or the Court of Session has power to grant anticipatory bail under S.438(1) to a person after the criminal Court has taken cognizance of the case and has issued process viz., the warrant of arrest of that accused person."
13. The Hon'ble Apex Court in a latest decision in Ravindra Saxena V. State of Rajasthan reported in 2009 (8) Supreme 225 has held as hereunder :
"8. We may notice here that the provision with regard to the grant of anticipatory bail was introduced on the recommendations of the Law Commission of India in his 41st Report dated 24.09.1969. The recommendations were considered by this Court in a Constitution Bench decision in the case of Gurbaksh Singh Sibbia and others V. State of Punjab (1980) 2 SCC 565. Upon consideration of the entire issued this Court laid down certain salutary principles to be followed in exercise of the power under Section 438 Cr.P.C. by the Sessions Court and the High Court. It is clearly held that the anticipatory bail can be granted at any time so long as the applicant has not been arrested. When the application is made to the High Court or Court of Sessions it must apply its own mind on the question and decide when the case is made out for granting such relief. In our opinion, the High Court ought not to have left the matter to the Magistrate only on the ground that the challan has now been presented. There is also no reason to deny anticipatory bail merely because the allegation in this case pertains to cheating or forgery of a valuable security. The merits of these issues shall have to be assessed at the time of the trial of the accused persons and denial of anticipatory bail only on the ground that the challan has been presented would not satisfy the requirements of Sections 437 and 438 Cr.P.C.
9. ....
10. The salutary provision contained in Section 438 Cr.P.C. was introduced to enable the Court to prevent the deprivation of personal liberty. It cannot be permitted to be jettisoned on technicalities such as "the challan having been presented anticipatory bail cannot be granted." "
14. The above principles of law laid down by the Hon'ble Apex Court, Delhi High Court and this Court in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also the investigation is over and the charge sheet has been filed and the petitioner has been served with summons to appear before the learned Magistrate for committal.
15. It is pertinent to note, as already pointed out, that the petitioner was not implicated in the First Information Report and he was subsequently implicated only at the time of filing the final report and as such, the petitioner has no occasion to seek the relief of anticipatory bail earlier. As it is already pointed out that the petitioner was served with the summons and appeared twice before the learned District Munsif-cum-Judicial Magistrate, Perundurai, and the case is posted for committal on 27.01.2010, the petitioner is having reasonable apprehension that he is likely to be remanded to judicial custody. It is seen that the petitioner is a sitting M.L.A. and as a matter of fact, on receipt of summons, the petitioner appeared before the learned Magistrate twice and he has to appear on 27.01.2010 for committal and therefore, the petitioner is not likely to abscond. Considering the fact that the case itself is at the committal stage and the petitioner also appeared before the learned Magistrate earlier, this Court is of the considered view that it is suffice for this Court to direct the learned District Munsif-cum-Judicial Magistrate, Perundurai, not to remand the petitioner/A-8 to custody in the event of committal of the case in P.R.C.No.35 of 2009 to the Court of Session and release the petitioner and bind him over on such terms and conditions as deemed fit by the learned Magistrate by directing the petitioner to execute a bond with sureties to ensure the presence of the petitioner before the Court of Session for the trial.
With this direction, this petition is hereby disposed of.
gg