Patna High Court - Orders
Prashant Kumar Singh & Anr. vs The State Of Bihar & Anr. on 9 February, 2012
Author: Akhilesh Chandra
Bench: Akhilesh Chandra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.2822 of 2012
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1. Prashant Kumar Singh S/O Late Arjun Prasad Singh Resident Of Village
Shitla Ashthan Road, Tilka Manjhi, P.S. Tilka Manjhi, District Bhagalpur.
2. Kiran Devi @ Kiran Kumari W/O Prashant Kumr Singh Resident Of
Village Shitla Ashthan Road, Tilka Manjhi, P.S. Tilka Manjhi, District
Bhagalpur. .... .... Petitioners
Versus
1. The State Of Bihar
2. Smt. Parvati Devi @ Archana Devi W/O Binod Kumar Singh Resident
Of Village Bahsi Saidpur, P.S. Jandaha, District Vaishali.
.... .... Opposite Party
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Appearance :
For the Petitioners : M/S Pankaj Kumar Sinha & Kamal Kishore Jha.
For the Opposite Party/s : Mr. Ram Naresh Roy, APP
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CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA
ORAL ORDER
5 09-02-2012Heard learned counsel for the petitioners and learned Additional Public Prosecutor for the State.
This second attempt on behalf of the two petitioners apprehending their arrest in Kotwali (Tilka Manjhi ) P.S. Case no. 524 of 2009 seeking privilege of anticipatory bail. Earlier similar prayer was made by filing Cr.Misc. no. 27726 of 2010 wherein at the time of final hearing on 14.12.2011 it could be detected that earlier before learned Sessions Judge petitioners already availed the privilege and were released on bail on furnishing bail bonds as ordered there but nothing was stated in their application so the petitioners were given opportunity to explain the circumstances and produce relevant orders of both the courts, that is, orders of learned Sessions Judge as well as the 2 Chief Judicial Magistrate but when failed to do so their application was dismissed for non-compliance of the order and for non-prosecution by order dated 23.12.2011 giving rise to filing of present application wherein by filing supplementary affidavit relevant order sheets have been filed.
It is evident that before learned Sessions Judge, Bhagalpur petitioners' prayer under Section 438 of the Code of Criminal Procedure was made through A.B.P. no.2188 of 2009 wherein on first hearing, that is, on 15.09.2009 case diary was called for adjourning the hearing till 09.10.2009. On that date by filing supplementary anticipatory bail application, petitioners sought ad-interim bail which was, ultimately, granted to them vide order dated 20.10.2009 awaiting case diary till 07.12.2009. In pursuance thereof the petitioners surrendered before Chief Judicial Magistrate, Bhagalpur on 23.10.2009 and released on furnishing bail bonds. Since thereafter on the prayer the privilege of interim bail so granted, even after receipt of the case diary in the month of January, 2010, was extended from time to time and they continued to avail the bail already granted till it is rejected on final hearing vide order dated 5.7.2010 on merits, giving occasion to file Cr.Misc. no. 27726 of 2010 before this Court.
During hearing the mute question is raised 3 whether in face of the petitioners surrender and release on bail they have any right to move further for anticipatory bail? This question has very well been answered in Division Bench decision of this Court in Bishundeo Sahu Vrs. State of Bihar and Anr; reported in 2011 (1) PLJR 731 and it is held that once person surrendered and released on bail has no such right under Section 438 of the Code of Criminal Procedure.
Learned counsel representing the petitioners tried to escape from the rigors of this decision only on the ground that in the case before Hon'ble Division Bench the petitioners were granted privilege till conclusion of the investigation ; submission of charge sheet whereas in the instant case petitioners were granted ad-interim bail for a limited period which was subsequently not confirmed and their prayer was finally refused by the learned Sessions Judge, who was competent enough to grant the ad-interim anticipatory bail as prayed and placed relieance on a decision of this Court in the case of Rajendra Pd. Chaurasiya Vrs. State of Bihar; reported in 1995(2) PLJR 443.
Here it would be pertinent to go through Section 438 of the Code of Criminal Procedure reproduced 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 non-bailable offence, he may apply to the High 4 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 antecedent 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.
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an Officer in- charge of a Police Station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.
(I-A) Where the Court grants an interim order under Sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(I-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.
(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 thinks 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 5 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)."
It is crystal clear that the very concept of anticipatory bail is that a person who apprehends his arrest in a non-bailable case, can apply for grant of bail to the Court of Sessions or to the High Court before his arrest.
This also cannot be overlooked that the petitioners availed ad-interim bail, for much longer period by evading hearing on one or the other ground contrary to the spirit of decision of this Court in Rajendra Prasad Chaurasia (Supra) which mandates early hearing, but ultimately the privilege was cancelled since not found fit to be confirmed.
True it is that petitioners before Division Bench were granted anticipatory bail till conclusion of investigation but 6 in the instant case the petitioners sought and availed the privilege for a shorter period keeping their application pending hearing but in both the events persons availing the privilege had to surrender in the custody of Court and to be released only on furnishing bail bonds. Once it is done the mandatory requirement for any prayer apprehending arrest as contained above in Sub Clause (1) comes to an end. It is further elaborated in Paragraph 37 by the Hon'ble Bench in case of Bishundeo Sahu (Supra) which reads as follows:
"37. The word „custody‟ has not been defined in Cr.P.C. , though this has some vital importance as regards the chapter of bail. The Supreme court in Niranjan Singh and Another Vs. Prabhakar Rajaram Kharote and Others reported in A.I.R. 1980 S.C. 785 was considering and indicating its import. In that case the accused had been summoned for committing offences under Section 302, etc, of the Indian Penal Code and his prayer for bail had been refused by the Magistrate. The refusal was without surrender of the accused and the Magistrate also stayed the warrant of arrest which had been issued by him for appearance of the accused. The Sessions Judge was approached by the accused before whom later he surrendered too, and the Sessions Judge without satisfying that the accused was in custody of the Magistrate who refused his prayer, admitted the accused to bail which order was challenged before the High Court and the High Court also upheld the order of the Sessions Judge by putting certain conditions in its order of bail. Niranjan Singh, the complainant, challenged the order before the Apex Court. This is how the Apex Court was considering the issue as to when a person could be said to be in „custody‟ in the light of Section 439 Cr.P.C. It was held as follows:
„ when he is in duress either because he is held by 7 the investigating agency or other Police or allied authority or is under the control of the Court having been remanded by Judicial order, or having offered himself to the court‟s jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the Court or is in physical hold of an officer with coercive power is in custody for the purpose of S. 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubiotics are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose.
Custody, in the context of S.439, (we are not, be it noted, dealing with anticipatory bail under S.438) is physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court.
He can be in custody not merely when the Police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions.‟ Thus, if an accused puts himself in the control of the court even after surrendering himself or even, in my opinion, appearing before it for the purposes of fulfilling formalities of executing a bail bond directed to be executed by him by an order under Section 438 Cr.P.C. then he could be said to have offered himself to the courts‟ jurisdiction and have further submitted himself to its orders by his physical presence in court. Is not it even in case of an order under Section 438 Cr.P.C. that the accused has to execute a bond and as I have just noticed, only when he had executed a bond he is legally and truly released on 8 bail? Further, from where he is said to be released on bail as per the provision of Section 441 Cr.P.C.? He has definitely to be from the custody of the Court. When we consider the provision of Section 441 and Form no.45 which is the form created by the Legislature for executing a bond by the accused in pursuance to an order of bail in his favour then it may be more clear that as soon as he appears before a Court, he submits himself to its jurisdiction and custody and, thus, undertakes to it to remain present before it as and when the court requires him to. Thus, what appears from the above discussion is that as soon as an accused appears and goes into the custody of the court so as to observing the legal obligation cast upon him by Section 441 Cr.P.C., he is in custody of the court and that custody inspite of his release, is subject to the terms of the bond and those terms are further creating perennial and permanent constructive custody of the court in which the accused puts himself and could be said to be lying inspite of having got an order of bail. Thus, as soon as an accused appears before a court and executes a bond in terms of Section 441 Cr.P.C. and Form no.45 appended to its II Schedule, he could remain very well in the constructive custody of the court and, as such, there could not be any question of any statutory right being vested in him for filing yet another application for bail under Section 438 Cr.P.C."
In view of the above, it is immaterial whether any person is granted ad interim anticipatory bail till conclusion of investigation or submission of charge sheet or for any other limited period during pendency of original application the person seeking and availing the privilege of interim bail, specially during pendency of the application is doing so at the calculated risk of refusal to confirm the ad-interim bail in such a case any further right to proceed under Section 438 of the Code of 9 Criminal Procedure apprehending his arrest will not be available to him till any provision similar to the provisions as contemplated in Section 437 A of the Code recently inserted by the Code of Criminal Procedure (Amendment) Act 2008 (S. is 2009)is made, which reads as such.
"437-A. Bail to require accused to appear before next appellate Court - (1) Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months.
(2) If such accused fails to appear, the bond stand forfeited and the procedure under Section 446 shall apply."
Since, in the instant case, the petitioners have once surrendered to the custody of court below but released on bail has no further right to prefer any application under Setion 438 of the Code of Criminal Procedure and, accordingly, present application is not at all maintainable. However, petitioners are at liberty to surrender before the court below and seek regular bail where the prayer may be considered in accordance with law on its own merit.
(Akhilesh Chandra, J) A.Ahmad/-