Jharkhand High Court
Birendra Rana vs The State Of Jharkhand on 21 April, 2017
Author: Anant Bijay Singh
Bench: Anant Bijay Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No. 2811 of 2016
Birendra Rana ..... Petitioner
Versus
The State of Jharkhand & Anr. ..... Opp. Party
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CORAM: HON'BLE MR. JUSTICE ANANT BIJAY SINGH
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For the Petitioner : Mr. Tarun Kumar No.1, Advocate.
For the State : A.P.P.
For the O.P.No.2 : Mr. P.C.Sinha, Adv.
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07/Dated: 21/04/2017
Petitioner is apprehending his arrest in connection with Dhanwar P.S. Case No. 351 of 2012, corresponding to G.R. No. 2861 of 2012, registered under Sections 341, 342, 323, 325, 427, 435, 448, 379, 504/34 of the I.P.C. subsequently cognizance has been taken under Section 307 of the IPC along with other sections.
It appears that the petitioner was granted bail earlier by the court below and subsequently final form was submitted and cognizance was taken under Section 307 of the IPC along with other Sections as mentioned above against the petitioner.
In this anticipatory bail application, the question of law involved is that when during course of investigation, the petitioner was granted bail by the court below and after completion of investigation, police has submitted final form and differing with the opinion of the police, the court below has taken cognizance of the case under aggravated offence, whether this anticipatory bail application is maintainable or not in view of the fact that the bail bonds submitted by the petitioner earlier was not cancelled by the court below.
In this case, after perusal of record, it appears that question of law as to whether anticipatory bail is maintainable or not was not decided by the court below and the prayer for anticipatory bail was rejected by the court below on other grounds.
The learned counsel for the petitioners placed reliance on a judgment of this Court rendered in "Dinesh Kumar Vs. The State of Jharkhand" reported in 2011 (3) JLJR 253 wherein the Hon'ble Single Bench has held as under:
"5. I have gone through the documents placed before me. Since the petitioner had appeared before the Police and he was on Police bail and even after submission of charge-sheet only notice has been issued for securing his appearance, I do not feel that present anticipatory bail application is maintainable. If the petitioner was previously on bail, only because cognizance has been taken for the offences which are non-billable, bail should not be refused, if he appears before the Court after receiving notice or summon. At this juncture, I also intend to mention another aspect in which the accused persons are released on bail under Section 436 Code of Criminal Procedure in a case registered for bailable offence and subsequently if charge-sheet is submitted against them for non-bailable offences and on being summoned, if they appear before the Court, bail should not be refused or cancelled only because cognizance has been taken under non-bailable Sections."
The learned counsel for the petitioners further relied upon the judgment of the Hon'ble Allahabad High Court passed in the case of Haji Mohd. Wasim & Ors. Vs. State of U.P reported in 1992 CRI.L.J. 1299, wherein the Hon'ble Single Judge has held as under:
"The power of a Police Officer in charge of a Police Station to grant bail and the bail granted by him comes to an end with the conclusion of the investigation except in cases where the sufficient evidence is only that of a bailable offence, in which eventuality he can take security for appearance of the accused before the Magistrate on a day fixed or from day to day until otherwise directed. No parity can be claimed with an order passed by Magistrate in view of enabling provision, contained in clause (b) of Section 209, Cr.P.C under which the Committal Magistrate has been empowered to grant bail until conclusion of trial, which power was otherwise restricted to grant of bail by him during pendency of committal proceedings under clause
(a) of Section 209, Cr.P.C."
Learned A.P.P. relied upon the order dated 21.03.2017 passed by this Court in the case of Pradeep Singh @ Pradeep Singh Matharu & Anr. V. The State of Jharkhand in A.B.A. No. 2775 of 2016 and analogous cases, wherein judgment of the Division Bench of the Hon'ble Patna High Court in "Bishnudeo Sahu Vs. The State of Bihar & Ors." reported in 2011 (1) PLJR 731 has been followed and submitted that this anticipatory bail application is not maintainable.
The Hon'ble Division Bench of the Hon'ble Patna High Court in "Bishnudeo Sahu (Supra) has held as under;
"18. A similar matter was considered in case of bailable offence. A person who is named as accused for bailable offences and granted bail by the police on execution of bail bond. Subsequently on completion of investigation, if the charge-sheet is submitted for non-bailable offence or despite submission of charge-sheet for bailable offence, cognizance is taken by the Magistrate for non-bailable offence, which he can make prayer for anticipatory bail. This issue was considered and decided in the case of Mahendra Pd. Singh Vs. State of Bihar 2004 (3) PLJR 491. In this decision it was held that once the bail had been granted and bail bond executed, at a later stage, if the offence is treated as non-bailable, the applicant cannot file his application for grant of anticipatory bail. The only remedy available to him is to surrender before the concerned Court. The court concerned will grant him bail without taking into custody, considering his conduct while on police bail and also that he has not misused the privilege of bail."
The learned A.P.P. has further relied upon a judgment of the Hon'ble Patna High Court in "Mahendra Prasad Singh Vs. The State of Bihar" reported in 2004 (3) PLJR 491, wherein in paragraph nos. 3, 4 & 5, it has been held under:-
3. On behalf of the petitioner, it has been submitted that after investigation police submitted charge-sheet only for bailable offences and the learned Magistrate has differed with the opinion of the police and taken cognizance also for non-bailable offences and hence petitioner has apprehended danger of arrest and custody and therefore anticipatory bail application should be entertained by the Court under the provisions of section 438 Code of Criminal Procedure.
4. On considering the relevant provisions in the Code of Criminal Procedure, this Court is of the opinion that had the F.IR been only for bailable offences and had the petitioner been granted benefit of bail by the police for bailable offences only under the provisions of Section 436 of the Code of Criminal Procedure the matter could have stood on different footing. On account of offence being treated as non-bailable at the later stage due to subsequent developments, may be an application for anticipatory bail could have been found maintainable. However, in the present case which is falling for consideration this Court is of the view that since the case was initially for non-bailable offences wherein the petitioner was taken into custody and then released on bail by the police, an application for anticipatory bail on the ground that he has an apprehension of arrest in the same case cannot be held to be maintainable.
5. In the facts of the case, petitioner must honour the terms of police bail and appear before the Court without any delay. In case, petitioner appears before the Court below within six weeks then the court below shall consider his prayer for bail in accordance with law keeping in view the well established principle that a person who is already on bail shall not be denied such privilege unless there is any allegations of misuse etc. With the observation this application for anticipatory bail is disposed of."
CHAPTER XXXIII of the Code of Criminal Procedure, 1973 provides PROVISIONS AS TO BAIL AND BONDS.
Section 436 Cr.P.C provides that in what cases bail is to be taken. Section 436(1)CR.P.C reads as under;
" 436 (1)-When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such persons shall be released on bail."
Section 437 Cr.P.C provides when bail may be taken in case of non-bailable offence. Section 437(1) reads as under:
"437(1)- When any person accuse of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Sessions, he may be released on bail, but
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life,
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years."
Section 437(5) also provides that any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
Section 438 Cr.P.C also makes provision of direction for grant of bail to person apprehending arrest. Section 438(1) Cr.P.C reads as under:
"438 (1)- Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions 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, and
(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."
Section 439 Cr.P.C provides special powers of High Court or Court of Sessions regarding bail. Section 439 Cr.P.C reads as under;
"439. Special powers of High Court or Court of Sessions regarding bail (1) A High Court or Court of Sessions may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-
section (3) of section 437, may impose any condition which it considers necessary for the purpose mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified."
Section 441 Cr.P.C provides for furnishing of bond of accused and sureties. Section 441 Cr.P.C reads as under;
" 441. Bond of accused and sureties-(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such persons shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.
(2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition.
(3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Curt, Court of Session or other Court to answer the charge.
(4) For the purpose of determining, whether the sureties are fit of sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness."
Section 442 Cr.P.C reads as under;
"442.- Discharge from custody (1) As soon as the bond has been executed, the person for whose appearance it has been executed shall be released, and when he is in jail the Court admitting him to bail shall issue an order of release to the officer in charge of the jail and such officer on receipt of the orders shall release him."
Further provision of Section 446 and 446-A of the Cr.P.C which reads as under;
"446. Procedure when bond has been forfeited.
(1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court any Magistrate of the First Class that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.
Explanation.-A condition in a production of property, before a Court a condition for appearance, or as the property, before any Court to which transferred.
(2) If sufficient cause is not shown and the penalty paid, the Court may proceed to recover the same as if such were a fine imposed by it under this Code.
Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound be liable, by order of the Court ordering the recovery to imprisonment in civil jail for a term which may extend to six months.
(3) The Court may, at its discretion, remit any portion penalty mentioned and enforce payment in part only.
(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond. (5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, ;if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.
446A. Cancellation of bond and bail-bond. Without prejudice to the provisions of section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition-
(a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and
(b) thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the Court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition:
Provided that subject to any other provision of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, thinks sufficient." Admittedly, in this case, the bail bonds furnished by the petitioner, while the petitioner was granted bail by the court below, has not been cancelled, nor the bonds were forfeited. So, taking all these facts and the ratio laid down in the judgment of the Division Bench of the Patna High Court in the case of Bishnudeo Sahu(supra), I am of the view that this anticipatory bail application filed on behalf of the petitioner is not maintainable. Accordingly, this anticipatory bail application is hereby dismissed as not maintainable.
However, the petitioner is directed to surrender before the Court below within six weeks from the date of production / receipt of this order in the court below and they will furnish undertaking that they shall co-operate in the trial and shall remain physically present as and when his presence is required by the court below and the court below is directed to allow the petitioner to remain on the bail granted earlier by the court below keeping in view that the petitioner has never misused the privilege of bail.
Let a copy of this order be communicated to the concerned court through FAX at once.
(Anant Bijay Singh, J.) Fahim/