Kerala High Court
T. Madhusoodan vs The Superintendent Of Police And Anr. on 23 June, 1992
Equivalent citations: 1992CRILJ3442
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT P.A. Mohammed, J.
1. This is an application filed under Section 438 of the Criminal P.C., 1973 (for short 'the Code'). It came before us on a reference made by a learned single Judge. The point involved is whether this High Court has jurisdiction to grant an order of "anticipatory bail" under Section 438 of the Code on the ground that the petitioner apprehends his arrest here, though the alleged offence was committed at a place situate within the territorial limits of Madhya Pradesh High Court. Bhaskaran Nambiar, J. has held in C.I. Mathew v. Govt. of India, 1984 KLT 942 : (1985 Cri LJ 1316), that the court within whose limits the arrest is apprehended has also jurisdiction to grant the order under Section 438 of the Code. Pareed Pillay, J. who referred this matter to a larger Bench expressed that "an authoritative decision by a Division Bench of this court" is required in view of the different opinion pronounced by Punjab and Haryana High Court in Ravinder Mohan v. State of Punjab, 1984 Cri LJ 714.
2. Facts of this case can be briefly stated thus : The petitioner is residing at Palakkad in Kerala State. He placed an order for supply of certain goods with the second respondent, who is a trader at Mandasaur (Indore District in Madhya Pradesh), through a commission agent. The goods were found badly damaged when they reached Palakkad. Though the damage was reported to the second respondent, he requested the petitioner to take delivery of the goods and secured necessary endorsement from the Bank at Mandasaur. Pursuant thereto, delivery was effected after incurring an expense of Rs. 15,000/-. But second respondent issued a notice to the petitioner claiming a sum of Rs. 1,50,000/-towards value of goods and damages. He sent a reply thereto repudiating the claim and at the same time narrating the facts which are true, according to him. But second respondent filed a complaint before Chief Judicial Magistrate, Mandasaur for offence under Sections 406 and 420 of the Penal Code with the petitioner as accused. Chief Judicial Magistrate, Mandasaur, took cognizance of the offences and issued warrant of arrest against the petitioner. This application is filed by the petitioner as he apprehends that he would be arrested here.
3. Section 438 of the Code consists of three sub-sections. First sub-section reads thus :
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.
Sub-section (2) says that the High Court or the Court of Session may include such conditions as it thinks fit including four conditions suggested in the sub-section. Sub-section (3) provide for the contingency when the person, in whose favour an order has been passed, is thereafter arrested without warrant by an officer in charge of a police station.
4. In order to decide the question referred to us for decision, an understanding of the legislative object behind Section 438 of the Code would be useful.
5. The liberty of individual with due observance of law and order is protected in Article 21 of the Constitution. It mandates that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Article 22(2) guarantees protection against arrest and detention subject to the conditions mentioned therein. Every person, who is arrested and detained in custody, shall be produced before the nearest Magistrate within a period of 24 hours of such arrest (excluding the time necessary for the journey from the place of arrest to the court of the Magistrate) and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Chapter XXXIX of the Criminal P. C., 1898 (for short 'the old Code') dealt with the provisions regarding grant of bail by the courts. It must be remembered that there was no specific provision in the old Code for the grant of anticipatory bail. However, there were conflicting judicial opinions on the question whether a person can apply for release on bail in anticipation of arrest and detention.
6. The Law Commission of India in its 41st Report took note of the conflicting judicial opinions and recommended in favour of making a provision for anticipatory bail on the statute book. Law Commission felt the necessity for granting anticipatory bail as sometimes influential persons would 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. The Commission also noted that apart from such false cases, 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. It was actually in the light of the aforesaid strong recommendations made by the Law Commission that Section 438 was included in the Code.
7. The expression "anticipatory bail" is not found in the Section 438 of the Code. Perhaps that expression may be a misnomer. What the section authorises is only to issue a direction to the effect that, in the event of arrest, the applicant shall be released on bail. In that way the direction is in anticipation of arrest. It is only a pre-arrest legal process. There is no question of release on bail unless a person is arrested and that being so, the order of granting anticipatory bail becomes operative only when the person concerned is arrested.
8. In deciding the question before us it is useful to consider how legislature used the definite article "the" before the words High Court and Court of Session. The usage of the said definite article is not without implication. It indicates that application for grant of a direction cannot be made to all High Courts or all Courts of Session in all cases. "The" High Court or "the" Court of Session postulates that such court has some special significance apart from generality of courts.
9. Application under Section 438 of the Code is actually made on apprehension of arrest. In other words, it is only the apprehension of arrest which invites exercise of power under Section 438. The direction that may be given on such application is that in the even of his arrest, the applicant shall be released on bail (vide Balchand Jain v. State of M.P., 1976(4) SCC 572 : (1977 Cri LJ 225).
10. Chapter V of the Code deals with arrest of persons. Section 41 enumerates the situations in which a police officer can arrest a person without the order of court. Section 47 mentions about arrest under a warrant. Section 48 empowers a police officer to pursue any person into any place in India for the purpose of arresting him even without warrant. Thus a person can be arrested at any place, whether that place is within or outside the place where the offence has been committed. If release from arrest is necessary, the place where arrest is made has some significance for such release. In our view the place where a person apprehends arrest is a sure test for determining jurisdiction of "the" High Court or "the" Court of Session as the case may be. If the applicant can satisfy the court that his apprehension (that he would be arrested at a place within the territorial limits of a particular court) is based on reasonable grounds, we would say that the High Court or the Sessions Court having jurisdiction over that place has authority to exercise powers under Section 438 of the Code. We do not propose to decide whether any other High Court has also jurisdiction, in addition to the court within whose territorial limits arrest is apprehended because such question does not fall for consideration in this case.
11. A Division Bench of the Calcutta High Court in B.R. Sinha v. The State, 1982 Cri LJ 61, took the view that in an application for anticipatory bail the court is concerned with the petitioner and in that view if the petitioner resides within the jurisdiction of a particular court, his application is entertain-able by that court. Residence became important as the petitioner in that case could satisfy the court of the reasonableness of his apprehension that he would be arrested at the place where he resides. The aforesaid view has not fully accepted by a learned single Judge of the Punjab and Haryana High Court in Ravinder Mohan Bakshi v. State of Punjab and Haryana, 1984 Cri LJ 714. Learned single Judge was of the view that if any court other than the court within whose jurisdiction the offence was committed is called upon to grant an order under Section 438 of the Code, it would be practically very difficult to collect necessary materials in order to make an effective decision. It is such practical difficulties which weighed with the single Judge in casting jurisdiction of such courts. We must bear in mind that power envisaged under Section 438 is only discretionary power. The mere fact that it is invoked does not mean that court is bound to grant an order in favour of the applicant. The Supreme Court has observed in Gurbaksh Singh v. State of Punjab, AIR 1980 SC 1632 : (1980 Cri LJ 1125), that the High Court or the Court of Session concerned has very wide discretion in the matter. "The power should not be exercised in a vacuum."
12. A learned single Judge of the Delhi High Court in Pritam Singh v. State of Punjab, 1980 Cri LJ 1174, and a learned single Judge of the Karnataka High Court in L.R. Naidu v. State of Karnataka, 1984 Cri LJ 757, have followed the Calcutta High Court view in preference to the view of the learned single Judge of the Punjab & Haryana High Court in Ravinder Mohan Bakshi's case, 1984 Cri LJ 714. A Division Bench of the Bombay High Court in N.K. Nayar v. State of Maharashtra, 1985 Cri LJ 1887, has also agreed with the Calcutta High Court view in B.R. Sinha's case, 1982 Cri LJ 61.
13. We are, therefore, broadly in agreement with the reasoning of Bhaskaran Nambiar, J. in C. I. Mathew v. Govt. of India, 1984 KLT 942 : (1985 Cri LJ 1316), that the court within whose jurisdiction the person apprehends arrest has power to grant the order under Section 438 of the Code.
14. In the present case, we have absolutely no doubt that petitioner's apprehension that he would be arrested at his local place is well founded. Learned Public Prosecutor submitted that the warrant of arrest issued by the Chief Judicial Magistrate, Mandasaur, has reached the Circle Inspector of Police, Palakkad. We, therefore, direct that petitioner, if arrested in connection with the aforesaid case, shall be released on bail on his executing a bond for Rs. 5,000/- with two solvent sureties for the like sum. We impose a further condition that petitioner shall appear before the Chief Judicial Magistrate, Mandasaur, within two months from the date of his arrest and release.
Cri. M.C. is disposed of in the above terms.