Madras High Court
Sennasi And Anr. vs State Rep. By Inspector Of Police And ... on 31 March, 1997
Equivalent citations: 1997(2)CTC665
ORDER V. Rangasamy, J.
1. All these petitions have been filed for anticipatory bail and these petitioners would state that they have been falsely implicated in the offences out of enmity and therefore, they might be released on anticipatory bail.
2. Mr. Shanmugasundaram, learned Public Prosecutor, appearing for the Respondents in these petitions, would submit that in all these case, the trial Magistrates have issued non-bailable warrants against these petitioners and therefore, these petitioners cannot be released on bail. As this Court in Sundaram and Ors. v. State, 1995 (2) LW (Crl.) 564 has held that when non-bailable warrant was issued by the Court before which the charge sheet has been filed, the procedure would be to approach that Court and file application for cancellation of the warrant and Section 438, Code of Criminal Procedure is not the remedy for seeking bail, in view of this decision, the learned Public Prosecutor contended that all these petitions are not maintainable before the High Court seeking anticipatory bail when non-bailable warrant is pending against these petitioners and the petitions are liable to be dismissed.
3. However, the learned counsels appearing for these petitioners, submitted that the views of the other High Courts and the latest view of the Supreme Court are different from that of this Court and therefore, the petitioners are entitled to seek anticipatory bail Under Section 438 Code of Criminal Procedure. As the common question arise in all these petitions, they were listed as a batch and were heard in common.
4. The learned Public Prosecutor contended that the framers of the Code of Criminal Procedure never intended to interfere with the process of the Court, that in these cases as the final reports have been filed, the Courts have taken cognizance of the offences alleged against these petitioners and when the cognizance has been taken by the Magistrates, invoking Section 438, Code of Criminal Procedure would amount to intereference in the process of the Court, which is not the scope of the provision and the only way available to the petitioners is to surrender before the concerned courts seeking bail and all these petitions deserve to be dismissed. The learned Public Prosecutor further submitted that as already this court has taken the view in Sundaram v. State, 1995 (2) LW (Crl) 564 that the High Court cannot entertain the petition Under Section 438, Code of Criminal Procedure when non-bailable warrant is pending, this Court cannot go against that view.
5. Section 438(1) of the code of Criminal Procedure deals with the power of the Sessions Court and the High court when a person apprehended anrestired for the non-bailable offence. Sub- section (2) with the conditions that might be imposed in the event of grant of bail under the above subsection. Sub-Section (3) is in the nature of direction to the. Police Officer and the Magistrate after the order granting bail under Sub-Section (1). Other High Courts have considered the object of Section 438, Code of Criminal Procedure and they have taken the view that there is no distinction in Section 438(1) of the Code of Criminal Procedure as to whether the arrest is apprehended at the hands of Police or at the instance of the Magistrate and therefore, when there is no curtailment of the powers for any such eventualities, the powers of the Court Under Section 438 of the Code are not ousted to grant anticipatory bail by the Sessions Court and the High Court. It is true that this court in Sundaram v. State, 1995 (2) LW (Crl) 564 has taken the view that once non-bailable warrant was issued by the Magistrate, the accused person has to move before that Court for regular bail. But the learned counsel appearing for the petitioners submitted that in the above decision of this court, the powers of the Sessions Court and the High Court, while dealing with Section 438 Code of Criminal Procedure, have not been specifically considered and no reason is given for non-applicability of Section 438 of the code when the non-bailable warrant is pending and therefore that view is not the correct view. I may also add that the Bombay High Court also in Ambalal Punamchand Rashamwala v. State of Maharashtra, 1992 Crl. L.J. 2373 has held that when nonbailable warrant was issued by the Magistrate, no anticipatory bail can be granted by the Sessions Court or the High Court. But, most of the High courts have differed from this view. The Full Bench of the Andhra Pradesh High Court in Sheik Khasim Bi v. State (1986 Crl.L.J. 1303) has held that Section 438, Code of Criminal Procedure makes no distinction whether the arrest was apprehended either from the police or from magistrate and the issuance of a warrant by the Magistrate against the person entitles him to move the court for anticipatory bail and Section 438 of the Code of Criminal Procedure does not in any manner restrict the powers of the Court to grant anticipatory bail irrespective of the pendency of the non-bailable warrant. The Full Bench of the Madhya Pradesh High Court also in Nirbhay Singh v. State of M.P., 1995 Crl.L.J. 3317 would hold that, there is no limitation in the language employed by the Legislature indicating that the arrest contemplated is an arrest by police of their own accord or that the arrest by police on a warrant issued by the court will not attract Section 438, Code of Criminal Procedure and therefore, the scope of Section 438, Code of Criminal Procedure should not be restricted by reading into it words to the effect that when any person has reason to believe that he may be arrested solely at the instance of the police and not as per warrant issued by a competent Magistrate. The Division Bench of the Punjab & Haryana High Court in Puran Singh v. Ajit Singh, 1985 Crl.L.J. 897 has expressed the view in the following manner:
"7... The main governing factor for the exercise of jurisdiction Under Section 438, Code of Criminal Procedure is the apprehensions of arrest by a person accused of the commission of a non bailable offence. The section makes no distinction whether the arrest as 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 Section 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 Section 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 Section 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..."
The Delhi High Court also in P. V. Narasimha Rao v. State (C.B.I.), 1996 (4) Crimes 218 following the Full Bench Judgment of the Andhra Pradesh High Court has held that the Courts empowered to exercise the powers Under Section 438(1) code of Criminal Procedure are entitled to grant anticipatory bail when the accused apprehends arrest and the issuance of a warrant by the Magistrate against that person will not take away the powers of the Court. However, the Delhi High Court has held that though such power is available to the Sessions Court and the High Court, when non bailable warrant was issued by the Competent Court, the Court which has the full details, could not be by passed and therefore, it granted interim anticipatory bail for a limited period enabling the accused to move that court which issued the non bailable warrant, to consider the prayer for regular bail. Apart from the consistent views of these High Courts, recently, the Supreme court also has expressed its view for granting only interim anticipatory bail in such occasions when the charge sheet was filed or non-bailable warrant was issued against the accused person. When the Bombay High court granted only interim bail upto a particular period enabling the accused to move the court, which issued the warrant, for seeking the regular bail, the aggrieved accused Salauddin Abdul Samad Sheikh took the matter to the Apex Court as he could not move before the concerned Magistrate within the time granted to move bail. The Apex Court considered the interim anticipatory bail for a limited period in Salauddin abdulsamad Sheikh v. State of Maharashtra, , The Apex Court has observed that when the charge sheet is filed, the regular court, which has all the materials before it, cannot be by passed for granting the anticipatory bail Under Section 438, Code of Criminal Procedure and therefore, the anticipatory bail granted for a duration of time enabling the accused person to move the regular Court for bail, is the correct procedure to be followed.
I am reproducing the expression of the Supreme Court, which is as follows:-
'...Under Section 438 of the Code of Criminal Procedure when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, the High Court or the Court of Session may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and in passing that order, it may include such conditions having regard to the facts of the particular case, as it may deem appropriate. Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular Court, which is to try the offender is sought to be by- passed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular court for bail. That is the correct procedure to follow because it must be realised that when the court of session Court or the High court is granting. anticipatory bail it is granted at a stage when the investigation is incomplete and therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bails should leave it to the regular court to deal with the matter on an appreciation of evident placed before it after the investigation has made progress or the charge sheet is submitted. It should be realised that an order of anticipatory bail could even be obtained in cases of serious nature as for example murder and therefore, it is essential that the duration of that order should be limited and Ordi-narily the Court granting anticipatory bail original court, which is expected to deal with the offence. It is that court which has then to consider whether, having regard to the material placed before it, the accused person is entitled to bail, In the instant case, therefore, the High Court had following the correct procedure and we see no reason to interfere..." (Italics provided by me) The Apex Court has expressed that the Courts granting anticipatory bail should not substitute itself for the original court and therefore, the correct procedure is only to grant anticipatory bail to a limited duration. This view has been further clarified by the Apex Court in K.L. Verma v. State and Anr. 1996 (7) SCALE (SP) 20.
This case arose from the order of the Delhi High Court, which granted only the interim anticipatory bail to a limited duration following the guidelines given by the Apex Court in Salauddin Abdulsamed Shaikh v. State of Maharashtra, . When this matte was taken before the Supreme Court by the accused, the Apex Court has further emphasized that the anticipatory bail sought for by the accused when the investigation had made the progress cannot ensure till the end of the trial and it must be of limited duration as the regular court cannot be by passed and the anticipatory bail can be granted for a duration. In the words of the Apex Court, "3... This Court further observed that anticipatory bail is granted in anticipation of arrest in non-bailable cases but that does not mean that the regular court, which is to try the offender, is sought to be by passed. It was, therefore, pointed out that it was necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration, the court granting anticipatory bail should leave it to the regular court to deal with the matte on an appreciation of evidence placed before it after the investigation has made progress or the charge sheet is submitted. By this, what the Court desired to convey was that an order of anticipatory bail does not ensure till the end of trial but it must be of limited duration as the regular court cannot be by passed. The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular court for bail and to give the regular court sufficient time to determine the bail application. In other words, till the bail application is disposed of one way or the other, the court may allow the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher court, if they so desire..."
6. Therefore, the Apex Court has further confirmed that when the investigation had made progress or charge sheet was filed, the Court exercising the powers Under Section 438, Code of Criminal Procedure, cannot grant anticipatory bail to ensure till the end of the trial but it must be of a limited period only, this procedure has been contemplated by the Apex Court to enable the regular court to assess the materials before it to consider the question whether the accused before it deserves to be granted bail or not. It is not the view of the Apex Court that for the reason that the charge sheet that been filed or the non-bailable warrant was pending, the Courts mentioned in Section 438 of the Code, have become defunct to exercise the powers under the said provision. If that was the view of the Apex Court, it would not have approved the granting of the interim anticipatory bail for a limited period. When the High Court and the Sessions Court have been empowered to grant interim anticipatory bail for a limited period, where is the restriction to grant anticipatory bail for the entire period till the trial was over?
Therefore, it is made clear that even if the non-bailable warrant is pending against an accused person, the High Court or the Sessions Court has absolute powers to exercise its decoration to grant anticipatory bail. But the Apex Court has viewed that though such power is available to the abovesaid courts, for the reason that all the evidence are placed before the regular court, which has the facility to look into it, that court should not be by-passed by granting anticipatory bail to the entire period till the end of trial but in appropriate cases, to safeguard the liberty of the accused person, the interim bail for a limited period can be granted, to enable him to move to the regular court before which the charge sheet is pending. Therefore, even though the powers of the High Court and the sessions court are not restricted to grant anticipatory bail even after the issue of the non-bailable warrant, to deal with the accused person properly with the evidence available against him, as per the view of the Apex Court, he has to be directed to approach the regular court for bail, but granting interim anticipatory bail to the limited period for his appearance before the regular court.
7. In the light of the above discussion, when these petitions placed before me are considered for granting anticipatory bail, Crl.O.P.Nos. 10658 of 1996, 2307, 2324 to 2327 of 1997 are all offences falling Under Section 302 Indian Penal code and various other offences. Even though the charge sheets have been filed already, the investigating agency is entitled to interrogate these accused persons in custody and additional charge she also can be filed from the information that might come out from these petitioners. Similarly, in Crl.O.P.No. 1898 of 1997, the accused is facing the charge for the Offence Under Sections 376, 451, 323, 324, 448 and 34, Indian Penal Code. This petitioner is facing a very serious charge and he may also give valuable information during the custodial interrogation. In Crl.O.P.No. 2351 of 1997, sandalwood worth Rs. 91,408 is said to have been transported by the petitioner. Therefore, in all these petitions, as the petitioners are facing very serious charges, i feel that they cannot be granted anticipatory bail. Therefore, Crl.O.Ps. 10658 of 1996, 2307, 2324 to 2327, 1898 and 2351 of 1997 are dismissed.
8. In so far as Crl. O.P.Nos. 969, 1289, 1897, 2006, 2349. 2386 and 2438 of 1997, the charges against these petitioners fall Under Section 420, 427, 306, 506(2) Indian Penal Code, Section 21(a) of the Forest Act and Section 2 and 3 of Tamil Nadu Public Property (Presentation of Damage and Loss) Act, individually. Therefore, it is proper that these persons are to be dealt with by the regular courts, which issued the non-bailable warrants. Hence, the petitioners in these petitions can be granted anticipatory bail for 10 days.
9. Petitioners in Crl.O.P.Nos. 969, 1289, 1897, 2006, 2349, 2386 and 2438 of 1997, in the event of arrest, shall be enlarged on bail for 10 days from today, i.e. upto 10.4.1997, on each of them executing bond for a sum of Rs. 2,000 with two sureties each for a like sum to the satisfaction of Judicial Magistrate No. 1, Kancheepuram (Crl.O.P.No. 969 of 1997), Judicial Magistrate, Shencottah (Crl.O.P.No. 1289 of 1997), Judicial Magistrate No. 1, Chidambaram (Crl.O.P.No. 1897 of 1997) Judicial Magistrate, Thirukoilur (Crl.O.P.No. 2006 of 1997) Special Magistrate, Thirupathur (Crl.O.P.No. 2349 of 1997) Judicial Magistrate, Sankarankovil (Crl.O.P.No. 2386 of 1997) and Judicial Magistrate, II, Sriviliputhur. The bonds shall be executed within one week. The petitions are ordered accordingly.