Punjab-Haryana High Court
Harjit Singh vs Union Of India (Uoi) And Ors. on 16 May, 1994
Equivalent citations: 1994CRILJ3134
ORDER H.S. Brar, J.
1. The allegations against Harjit Singh petitioner who seeks pre-arrest bail from this Court under Section. 438 of the Code of Criminal Procedure (for short, the Code) are that Crime No. RC/ 1/90(A)ACU(VI) under Section 120B read with Sections 420, 467, 468 and 474, Indian Penal Code, Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and under Sections. 132, 135 and 136 of the Customs Act, 1962, was regisrtered on April 30, 1990, against Messrs Continental Carriers Pvt. Ltd., Messrs Dolman Commercial India Pvt. Ltd., Messrs Satya Enterprises Pvt. Ltd., Prem Kumar, Ramesh Kumar and certain unnamed officers of the Customs Department and certain other unknown persons, wherein the accused persons are alleged to have hatched a criminal conspiracy for illegal import of silver from Singapore to India and that in furtherance of said criminal conspiracy, Messrs Continental Carriers Pvt. Ltd. imported six consignments of silver bars weighing 15600 kgs. valued at Rs. 10,92,00,000/- approximately from June 1989 to October, 1989. The said consignments were imported as Diplomatic Cargo of the Embassy of the Germany People and Republic, New Delhi. The delivery of the abovesaid consignments was taken from Air Cargo Complex I.G.I. Airport, New Delhi by fraudulently submitting forged documents purported to have been issued by the Embassy of the Hungarian People Republic, New Delhi and forged exemption certificate purported to have been issued by the Ministry of External Affairs.
2. Another consignment weighing 3699 kgs. of silver bars arrived by KLM Flight No. KL-836, dated January 8, 1989 from Singapore valued at Rs. 2,58,93,000/- approximately which was also falsely declared as Diplomatic Cargo, on the basis of similar forged documents purported to have been issued by the Embassy of Hungarian People's Republic, New Delhi and forged exemption certificate, was imported by Messrs Continental Carriers Pvt. Ltd., Connaught Circus, New Delhi. The said consignment was seized by the Directorate of Revenue Intelligence, New Delhi, because this consignment did not belong to the Embassy of Hungarian People's Republic, New Delhi, as they did not import any Diplomatic Cargo on that date. Eight more consignment were imported illegally from Singapore in the name of Embassy of Federal Republic of Germany (7 consignments) and Embassy of Hungarian Peoples Republic (1 consignment) during the period June 1989 to July 1990 and delivery was obtained from Air Cargo Complex, IGI Airport, New Delhi (in case of 6 consignments) and from container Freight Station, Patparaganj (one consignment) in the name of the Embassies as the goods were declared to be diplomatic cargo. The delivery was obtained on the basis of forged bill of entries, exemption certificates of Ministry of External Affairs and other forged documents.
3. Another consignment which was being illegally imported from Singapore as diplomatic cargo in the name of Embassy of Federal Republic of Germany was seized by Inland Container Depott., unit of Customs at Pragati Maidan, New Delhi on July 11, 1990 which was found containing car a/ c compressors of the market value of Rs. 57,72,000/- and 4000 kgs. of silver of the market, value of Rs. 2,66,00,000/-. An attempt was made to obtain delivery of this consignment by using forged bill of entry, exemption certificate and other forged documents but before the delivery could be obtained, the goods were seized.
4. The Embassies had not imported any of the consignments mentioned above and the name of their Embassies had been used by declaring the consignments as diplomatic consignments which are exempted from duty.
5. The investigation disclosed that Harjit Singh petitioner and others were involved in the smuggling of silver and other contraband goods from Singapore to India, the subject-matter of investigation in this case, by using forged documents, i.e. bill of entries, exemption certificates purported to have been issued by Ministry of External Affairs, documents of the Embassy of Hungarian Peoples Republic and Embassy of Federal Republic of Germany, New Delhi, etc. By using the forged documents, the delivery of the consignments was obtained, thereby causing loss of crores of rupees of customs duty to the Government Exchequer.
6. The learned counsel for the petitioner states that the case was registered on April 30, 1990 against Messrs Continental Carriers Pvt. Ltd., Messrs Dolman Commercial India Pvt. Ltd., Messrs Satya Enterprises Pvt. Ltd., Prem Kumar, Ramesh Kumar and certain un-named officers of the Customs Department and certain other un-known persons. The petitioner, according to him, is not named in the First Information Report and he had nothing to do with the abovesaid companies. He is, thus, entitled to pre-arrest bail
7. The learned counsel for the respondents have opposed the pre-arrest bail, firstly on the ground that the present petition on behalf of the petitioner is not maintainable in this Court, because the crime, the subject-matter of the investigation, was committed in Delhi and the case against the petitioner was also registered in Delhi. Thus, this Court has no jurisdiction to entertain this application.
8. The pre-arrest bail is further opposed on the ground that the special Judge, Delhi, issued non-bailable warrants against the petitioner on November 17, 1993 and December 10, 1993 and thereafter issued proclamation/ process under Sections 82 and 83 of the Code on March 17, 1994.
9. It is further submitted that proclamation under Section 82 and order of attachment under Section 83 of the Code have already been executed against the petitioner. The petitioner, according to the counsel for the respondents, was absconding and was intentionally not subjecting himself to the jurisdiction of the criminal Court in Delhi. The learned counsel further argued that the petitioner was involved in a serious offence of smuggling of silver and other contraband goods and being an absconder, he did not deserve to be granted the concession of pre-arrest bail.
10. Admittedly, the crime was committed in Delhi and the case against the petitioner along with other co-accused was also registered in Delhi. The prime question to be answered at the outset is, as to whether this Court has got the jurisdiction to entertain the pre-arrest bail application of the petitioner, or not. For that purpose, it is to be resolved as to whether Section 438 of the Code of Criminal Procedure, 1973 envisages the grant of anticipatory bail by any High Court or any Court of Session within the country irrespective of the locale of the commission of the offence. This question is not res Integra. There are pronbuncements of different High Courts on the matter and divergent view have been expressed therein.
11. The learned counsel for the respondents opposing the pre-arrest bail of the petitioner has cited Ravinder Mohan Bakshi v. State of Punjab, (1983) 2 Rec Cri R 410 : (1984 Cri LJ 714) (P & H), Mohan Singh Parihar v. Commr. of Police, New Delhi, (1983) 1 Rec Cri R 414 (2): (1983 Cri LJ 1182) (J & K), Dr. Pradeep Kumar Soni v. State of Madhya Pradesh, 1990 Cri LJ 2055 (Madh Pra) and Syed Zafrul Hassan v. State, (1986) 2 Rec Cri R 60 : (1986 Cri LJ 605) (Patna) (FB), in favour of the proposition and their contention that Section 438 of the Code does not permit the grant of anticipatory bail by this Court to the petitioner, as he has committed the offence under the jurisdiction of Delhi High Court, and the case was also registered against him in Delhi. Mere residence of the petitioner outside Delhi did not permit this Court to entertain and grant anticipatory bail to the petitioner in a crime committed by him in Deihi.
12. On the other hand, the learned counsel for the petitioner has cited Capt. Satish Kumar Sharma v. Delhi Administration, 1991 (1) CC Cases 39 : (1991 Cri LJ 950) (Delhi), N.K. Nayar v. State of Maharashtra, 1985 Cri LJ 1887 (Bom), B.R. Sinha v. The State, 198" Cri LJ 61 (Cal) and Criminal Miscellaneous No. 2166-M of 1994 (Shri Subhash Chander Kher v. Union of India decided by a learned single Judge of this Court on April 8, 1994) for the proposition that even if the crime has been committed in Delhi, that is, under the jurisdiction of the Delhi High Court, this Court has also jurisdiction to entertain the anticipatory bail application of the petitioner if he apprehends arrest in Punjab, Haryana or Chandigarh. The learned counsel for the petitioner submits that the ruling cited by him fully support the view that this Court has got jurisdiction to grant anticipatory bail to the petitioner even if he has committed the crime in Delhi and the case has been registered against him in Delhi, but he apprehends his arrest in Haryana within the jurisdiction of this Court. He has further stated that in Shri Subhash Chander Kher's case (supra), the learned Judge of this Court has allowed pre-arrest bail to the coaccused of the petitioner.
13. On the other hand, the learned counsel for the respondents stated that the question of jurisdiction has already been decided by this Court in Ravinder Mohan Bakhshi's case (1984 Cri LJ 714) (supra), ruling that mere apprehension of the petitioner for arrest under the jurisdiction of this Court does not vest this Court of the jurisdiction to decide the anticipatory bail when the crime has been committed and the criminal case has been registered against him in any other State. The learned counsel further submitted that the learned single Judge of this Court did not discuss and distinguish the authorities of this Court as well as those of the other Courts including the Full i Bench of Patna High Court while arriving at a conclusion that this Court had got the jurisdiction to entertain the anticipatory bail application of the petitioner when actually the; case was registered against him in Delhi and the crime was also committed by him in Delhi.
14. After hearing the learned counsel for both the parties, I find force in the arguments of the learned counsel for the respondents that when the crime has been committed in Delhi and the case has been registered against the petitioned in Delhi, this Court has got no jurisdiction to grant anticipatory bail to the petitioner merely because he apprehends his arrest in Haryana or any other territory under the jurisdiction of this Court. In N.K. Nayar's case (1985 Cri UJ 1887) (Bom) (Supra), though discretion was exercised under Section 438 of the Code in granting anticipatory bail to the petitioners, but the bail was' granted for a limited period of one month, that is till end of April 12, 1985 so as to enable the applicants therein to move appropriate Courts for seeking appropriate orders. It was made specifically clear that the anticipatory bail shall stand automatically vacated and cancelled on April 13, 1985 if in the intervening period no orders about the grant of bail from the appropriate Courts (i.e. the Courts where cases are likely to be filed) are obtained.
15. In B.R. Sinha's case (1982 Cri LJ 61) (Cal) (supra), orders of similar nature were passed. '
16. In Capt. Satish Kumar Sharma's case (1991 Cri LJ 1950) (supra), it was held that the Delhi High Court had jurisdiction to grant pre-arrest bail to Captain Satish Kumar Sharrna though an offence was alleged to have been committed by him in the State of Uttar Pradesh. It was held that the mere apprehension of arrest by the petitioner in that case in Delhi at the instance of a case instituted against him in Delhi by his political adversaries gave jurisdiction to Delhi High Court to grant him anticipatory bail. A reference was also made to Gurbax Singh Sibia's case (supra) by the learned single Judge of this Court and it was stated in the judgment that in Gurbax Singh Sibia's case (supra), the question of territorial jurisdiction of a particular High Court to grant bail to an offender who was required to be arrested in some case registered in some other State did not arise for determination.
17. It has been consistently held by this Court since 1980,, that is, in Pritam Singh v. State of Punjab, 1980 Cri LJ 1174 (by Sidhu, J., as his Lordship then was) (sic) and later in Ravinder Mohan Bakhshi's case (1984 Cri LJ 714) (supra) (by Yadav, J., as his Lordship then was) that this Court cannot entertain or| grant anticipatory bail to an accused if the criminal case has been registered against him under the jurisdiction of other High Court, though he may be apprehending arrest under the jurisdiction of this Court. This consistent view of this Court has been noticed with Approval by other High Courts. Reference may be made to Mohan Singh Parihar's case (1983 Cri LJ 1182) (J & K) (supra), Dr.: Pradeep Kumar Soni's case (1990 Cri LJ 2055) (MP) (supra) and Syed Zafrul Hassan's case (1986 Cri LJ 605) (supra). The Full Bench of the Patna High Court in the lastmentioned case has discussed the issue as to whether Section 438 of the Code of Criminal Procedure, 1973 envisages the grant of antircipatqry bail by any High Court or any Court of Session Within the country irrespective of locale of the commission of the offence, at length. After discussing the whole question threadbare and referring to some of the authoritative pronouncements of the Supreme Court including Gurbax Singh Sibia's case (1980 Cri LJ 1125) (supra), the Full Bench arrived at a conclusion that Section 438 of the Code of Criminal Procedure, 1973 does not (permit the grant of anticipatory bail by any High Court or any Court of Session within the country where the accused may choose to apprehend arrest. Such a power yests only in the Court of Session or the High Court having jurisdiction over the locale of the commission of the offence of which the person is accused.
18. I respectfully agree with the conclusion arrived at by the Full Bench of the Patna High Court in Syed Zafrul Hassan's .case (1986 Cri LJ 605) (supra) as well as with the observations made by this Court in Pritam Singh's case (1980 Cri LJ 1174) (supra) and Ravinder Mohan Bakhshi's case (1984 Cri LJ 714) (supra). I, however, with respect disagree with the authorities cited by the counsel for the petitioner, and am of the view that this Court has got no jurisdiction to entertain the application of the petitioner for pre-arrest bail. The anguage of Section 438 of the Code, relevant portion of which is reproduced here under.
(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 the Court rnay, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) x x x x x x (3) If such person is thereafter "arrested without warrant by an officef-in-charge of a police station of 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 decided 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).
is clear and un-ambiguous. A reference made to the High Court of the Court of Session of that of a Magistrate in the statute is clear that it is inherent in such language that it is a Court having territorial jurisdiction over the offence. This issue, as stated above, has been dealt with elaborately by a Full Bench of the Patna High Court in Syed Zafrul Hassan case, (1986 Cri LJ 605) (supra).
19. In this view of the matter, I dismiss this petition as incompetent.
20. I did not want to advert to the merits of the case but still I cannot resist myself in noticing that it has been specifically alleged by the respondents in reply filed on their behalf by Deputy Superintendent of Police, CBI SPE SPE ACU(VI), New Delhi that the Court of learned Special Judge, Delhi had issued non-bailable warrants of arrest against the petitioner on November 7,1993 and on December 10,1993 and thereafter, issued proclamation/process under sections 82 and 83 of the Code on March 17, 1994 and he was declared proclaimed offender by the Court of Shri V.B. Gupta, Special Judge, Delhi on April 11,1994. Even on merits, such a person who is evading the process of law to that extent, normally does not deserve the concession of anticipatory bail, which concession is given in rare cases of political vendetta, malice or other extraneous considerations.