Karnataka High Court
Mahesh S/O. Pitambar, vs State Of Karnataka, on 23 February, 2012
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 23rd day of February 2012
Before
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
Criminal Petition No.10266/2012
BETWEEN:
Mahesh Sb. Pitam bar
Age: 51 years, Rio. Door No.
301, Fortune Banjara
Apartment, Banjara Hills,
Hyderabad.
Andra Pradesh.
2. Narasimha Murthy
Sb. Chdambaram,
Age: 46 years, Advocate
Rio. opposite Nama Lodge,
Sarojini Road, Anantpur,
Andra Pradesh.
3. C.H.Mohan Rao.
Sb. Sanjeevarayudu,
Age: 53 years, Rio. APHB Colony,
Anantpur District,
Andra Pradesh. . . .Petitioners
(By Sri.Hegde, Neeralgi & Patil Advocates)
,
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AND:
State of Kamataka
By the station Police Sub
Inspector, Hospet,
Dist:Bellary.
...Respondent
(By Sri Vinayak S. Kulkami, HCGP)
This criminal Petition is filed und
Cr.P.C. seeking to quash the order er Section 482 of
dated 11/0112012 issuing
non-bailable warrant against the
petitioner, in Cr1. M.P.
No.91812011 pending on the file
of Principal District &
Sessions Judge, Bellary.
This criminal petition coming on for
the Court made the following: admission, this day,
ORDER
In this petition filed under Sectio n 482 of Code of Criminal Procedure, the petitioner has sought for quashing the order dated 11.01.2012 passed by the Principal District & Sessions Judge, Bellary in Cr1. Mis c. No.91812011 directing issue of non-bailable warrant agains t the petitioners.
2. Apprehending their arrest by Rural Police, Hospet, in connection with the case in Crime No.12812011 registered for non-bailable offences, the pet itioners filed petition under Section 438 of Cr,P.C. in Crl.M isc. P.918/2011 After hearing both side, the learned Sessions Judge by considered order dated 26.10.2011. allowed the said petition, granted relief of anticipatory bail to the petitioner s subject to certain conditions. Thus, the said petition came to be disposed of on 26.10.2011. However, curiously, on 11.01.201 2, the said petition appears to have been taken on board by the learned Sessions Judge on the basis of an application file d by the investigation Officer stating that the accused have violated the conditions of the order of anticipatory bail by not co-operating with him in the investigation. After taking the petition on board, the learned Sessions Judge directed issue of non-bailable warrant against these petitioners. It is the said order which is impugned in this petition.
3. Having regard to the short point involved in this petition, I have heard both sides on merits of the petition.
:4:4 As noticed supra, by a considered ord er passed on 26.10.2011, Cr1. Misc. P.918/2011 cam e to be disposed of.
Thus, the learned Sessions Judge bec ame functus officio in respect of the said petition. It is wel l settled law that the criminal courts have no power of review . In addition to this, no case was pending before the learned Sessions Judge for issuing non-bailable warrant. The pur ported application filed by the Investigation Officer complainin g non-cooperation of these petitioners with the investigation and on that basis alleging violation of terms and conditi ons of the bail order, it may, at best, become a ground for cancellation of bail.
However, the learned Sessions Judge had no jurisdiction to issue non-bailable warrant against these petitioners in respect of a case which is pending before the juri sdictional Magistrate.
5. Issuance of non-bailable warrant entails serious consequences invading right of liberty of a person guaranteed under Article 21 of the Constitution of India. Therefore, before ordering issue of non-bailable warran t, courts must be very cautious and careful. In a case of this nature, the learned :5: Sessions Judge, before whom no case is pending, absolutely. had no jurisdiction to issue non-ba ilable warrant. Therefore, the order issuing non-bailable warrant against these petitioners passed by the learne d Sessions Judge in a disposed of petition filed under Sec tion 438 of Cr.RC. was without any jurisdiction or author ity of law. Therefore, it is liable to be set aside. In additio n to this, the power of cancellation of bail as provided under sub-section (2) of Section 439 can be exercised onl y in respect of a person who has been released on bail under Chapter XXXIII of the Code of Criminal Procedure as the sai d Sections empowers the High Court or the Court of Sessio ns to direct any person, who has been released on bail under that chapter by arresting and committing him to custody.
6. In the case on hand, even according to the Investigating Officer, the petitio ners have not been arrested and released on bail pursuant to the order of anticipatory bail granted by the learned Sessions Judge. Be that as it may. If, for any reason, the learned Sessio ns Judge is of the opinion :6: that the application filed by the Investigating Officer complaining non-cooperation of these petitioners with the investigation could be a ground for consideration of the said application as one for cancel lation of bail it has to be registered as a separate petition, notice of the same will have to be served on the petitioner and it should be dealt with in accordance with law.
In view of the above discussions, petition is allowed.
The order dated 11.01.2012 in CrI .Misc. P.91812011 taking the said petition on board and dir ecting issue of non-bailable warrant against these petitioners is hereby set aside.
RiDGE Kms