Karnataka High Court
Dr. A. Ebenezer vs State By Station House Officer on 5 August, 2002
Equivalent citations: 2003CRILJ265, ILR2002KAR5003, 2003(6)KARLJ171
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
ORDER K. Sreedhar Rao, J.
1. The petitioner is an accused in C.C. No. 18070 of 2001. On a private complaint, a case is registered against the accused/petitioner for committing offences punishable under Sections 448, 506 and 313 of the IPC. The complainant/victim claims to be the wife of the petitioner, according to the complaint. After checkered rounds of litigation before this Court and Apex Court, ultimately the Trial Court, after recording sworn statements, issued process against the petitioner for his appearance. On the date of appearance, the Counsel appearing for petitioner made an application for exemption under Section 317 of the Cr.P.C. along with medical certificate to show that the petitioner is admitted in hospital and he is under treatment. The Trial Court by the impugned order rejects the application on the ground that the other side opposes the application and thus directs issuance of NBW.
2. The Counsel for the petitioner relied on the ruling of the Full Bench of Andhra Pradesh High Court in Smt. Sheik Khasim Bi v. State, 1986 Cri. L.J. 1303 (AP) to bring home the point that even after filing of a charge-sheet in respect of warrant issued by a Criminal Court, anticipatory bail could be granted under Section 438 of the Cr. P.C.
3. After carefully going through the said ruling, I respectfully disagree with the view taken by the Andhra Pradesh High Court, for the following reasons:
For convenient reference, the provisions of Section 438 of the Cr. P.C. is reproduced here 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 accusation 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)".
4. Sub-section (3) of Section 438 of the Cr. P.C. declares that when an anticipatory bail is granted, the Station House Officer could be directed to release the accused on bail in the event of arrest on taking necessary bail bonds and if a Magistrate taking cognizance of an offence, decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant irrespective of the provision contained in Section 204 of the Cr. P.C. The Magistrate issuing summons/warrant to accused would arise only after filing of the charge-sheet. During the stage of investigation, there is no scope for the Magistrate to issue warrant or summons to accused to appear before him. Therefore, the contingency of Magistrate issuing a bailable warrant instead of non-bailable warrant in the face of anticipatory bail would arise only at a stage after filing of a charge-sheet. Sub-section (1) of Section 438 of the Cr. P.C. empowers the Sessions Court and the High Court to grant the relief of anticipatory bail. The relief of anticipatory bail is a discretionary relief and should be exercised only when a person has reason to believe that he may be arrested on a accusation of having committed a non-bailable offence. Under Sub-section (2), the Court while granting anticipatory bail can stipulate conditions that a person should make himself available for interrogation as and when required and that he shall not tamper the witnesses by dissuading them from disclosing such facts to the Court or to any Police Officer. The other conditions which may be under Sub-section (3) of Section 437 can also be imposed. A condition on the restraint of movement from leaving India without the previous permission can also be imposed.
5. Section 436 of the Cr. P.C. deals with grant of bail in relation to bailable offence. Section 437 of the Cr. P.C. relates to grant of bail in non-bailable offences. Section 439 of the Cr. P.C. gives wide discretion to the Sessions Court and the High Court to grant bail notwithstanding the provisions contained in Sub-section (2) of Sections 436 and 437 of the Cr. P.C.
6. The Constitutional Bench of Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab, in para 4 refers to the recommendation report of the Law Commission about justifiable need of incorporating the provision for anticipatory bail in Criminal Procedure Code, which reads thus:
"4. The Cr. P.C., 1898 did not contain any specific provision corresponding to the present Section 438. Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether Courts had the inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did not have such power. The need for extensive amendments to the Cr. P.C. was felt for a long time and various suggestions were made in different quarters in order to make the Code more effective and comprehensive. The Law Commission of India, in its 41st report, dated September 24, 1969 pointed out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant "anticipatory bail".
It is observed in para 39.9 of its report (Vol. I):
"39.9. The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. Though, there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.
We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter".
(emphasis supplied) So also in para 7 deals with the purpose and object and consequences of anticipatory bail in contra distinction with the powers and consequences of regular bail. From the aforesaid observations, it becomes implicit that the object of empowering the Sessions Court and the High Court to grant anticipatory bail is to protect the innocent persons from harassment and high-handed tactics of the investigation agency. The conjunct reading of the provisions of Sub-section (1) with the provisions of Subsection (3) would indicate that the provision of anticipatory bail would be totally irrelevant after filing of the final report/charge-sheet. In the normal course of investigation of a non-bailable offence, the Police Officer is empowered with the powers of arrest without a warrant under Section 2(c). The experience has shown the abuse of powers by the investigation agency subjecting the innocent persons to harassment. The power of arrest exercised by the Police Officer during the course of investigation cannot be equated to an arrest by a Police Officer pursuant to the issuance of NBW by a Court of law in respect of a defaulted or an absconding accused. In the former case, the Police Officer exercises executive discretion as Investigation Officer. In the later case he only acts as an agent of a Court of law in enforcing the order of NBW. The risk and vulnerability found in the powers of the arrest by a Police Officer during investigation under Section 2(c) are totally absent when the Police Officer arrests a person pursuant to NBW issued by a Court of law.
7. The object and the purpose of the provisions of anticipatory bail could be better understood by combined reading of the provisions of Sub-section (1) with Sub-section (3) of Section 438 the contingencies postulated in Sub-section (3) will come into effect only after grant of anticipatory bail. The Police Officer concerned has to admit the accused on bail in the event of arrest. The Magistrate as aforesaid necessarily gets jurisdiction to issue a bailable warrant to the accused only after filing of a charge-sheet. Any attempt to enlarge the scope of Section 438 of the Cr. P.C. to make the provisions applicable to persons against whom a charge-sheet is filed before Court appears to be irrelevant and purposeless. No doubt, under Section 438 of the Cr. P.C. The Court has wide discretionary powers to admit the accused to bail and can also consider the reasonable and valid grounds made out by the accused in granting a complete relief of bail under Section 438. The discretionary powers of grant of anticipatory bail is made clear in Gurbaksh Singh Sibbia's case, supra, in paras 36, 37 and 38. The ratio laid down makes it clear that while granting anticipatory bail if there are no full facts and material available and the exigencies of case warrant granting a conditional relief under Section 438 of the Cr. P.C., the High Court or the Sessions Court can grant anticipatory bail limited in point of time and can also direct the petitioner to seek regular order of bail under Section 437 or Section 439 of the Cr. P.C. within reasonable time.
8. The close reading of Sub-section (3) of Section 438 of the Cr. P.C. discloses that a Magistrate taking cognizance of any non-bailable offence in respect of an accused who has the benefit of an anticipatory bail, the Magistrate in the first instance has to issue only a bailable warrant to secure the attendance before the Court for the purpose of Trial. The accused after so appears, has to make an application for grant of bail under Section 437 or Section 439 of the Cr. P.C. depending upon the nature of relief granted in the anticipatory bail. If the anticipatory bail order is conditional and limited leaving the discretion to be exercised by the Magistrate necessarily the Magistrate or the Trial Court has to dispose of the application under Section 437 or Section 439 of the Cr. P.C. as the case may be on merits. The Supreme Court in Gurbaksh Singh's, case has also laid down that no blanket order of bail can be granted under Section 438 of the Cr. P.C.
9. In the backdrop of the object and purpose of the provisions of anticipatory bail, it does not really warrant to make the provision of Section 438 of the Cr. P.C. applicable after filing of a final report and grant of anticipatory bail in such a situation is only a redundant effort. The accused who comes to know the issuance of NBW in a Court of law without the aid of Section 438 of the Cr. P.C. has a relief of seeking recall of the NBW under Sub-section (2) of Section 70 by showing proper reasons and simultaneously make a regular bail application. Sometimes it is cynically argued that the Trial Court would not be liberal in granting bail in non-bailable offences when NBW is issued and the voluntary surrender/appearance before the Court would only make the accused suffer detention for a day or two pending disposal of the bail application on merits. The provisions of anticipatory is not meant to curtail the lawful jurisdiction to the Magistrate or the Trial Court. A bail application under Section 437 or Section 439 of the Cr. P.C. has to be disposed of by the competent Court in accordance with law. In that context, granting anticipatory bail in respect of NBW issued by a Court of law would only serve to strengthen the cynical arguments. In that view of the matter, I find no merit in the contention of the Counsel for the petitioner that the provisions of Section 438 could be invoked in respect of NBW issued by a Court of law after filing of charge-sheet.
10. In the instant case, although the petitioner is not entitled to relief of anticipatory bail, I find from the impugned order that the Trial Court has not properly appreciated the material placed by the petitioner along with the application under Section 317 of the Cr. P.C. The Court without considering the facts and the documentary material, rejects the request only on the ground that the other side opposes the application and issues NBW. Although the present petition is not filed by invoking the revisional or inherent powers, I deem it is fit and proper in the circumstances to set aside the impugned order of issuance of warrant of arrest on merits. Accordingly, the order of issuance of NBW against the petitioner is set aside. The Counsel for the petitioner however undertakes that he would keep the petitioner present before the Court on 14th August, 2002 voluntarily. On such production, the Trial Court shall deal with the accused in accordance with law.
The petition is allowed in the above terms.