Sikkim High Court
Rama Shankar Prasad And Ors. vs The State And Ors. on 29 May, 1997
Equivalent citations: 1998CRILJ1926
Author: Malay Sengupta
Bench: Malay Sengupta
ORDER
Malay Sengupta, Actg. C.J.
1. This is an application for anticipatory bail under Section 438, Cr.P.C.
2. The fact of the case is that the petitioners are members of a joint Hindu Family. Petitioner Nos. 1,4 and 5 are brothers. The petitioner No. 3 . is the wife of petitioner No. 1 and petitioner No. 2 is the mother of petitioner Nos. 1, 4 and 5. Petitioner Nos. 1 and 5 have their own family business in Gangtok. Petitioner No. 4 is minor and a school student. The other two petitioners are housewives. Petitioner No. 5 married one Smt. Murat Devi of Chapra District (Bihar). The said Murat Devi filed a complaint with the police station nearest to her place of present stay within the Chapra District on the allegation that these petitioners together with one Ram Ekbal Prasad, father of petitioners Nos. 1,4 and 5, treated her with cruelty. A case was accordingly registered as Eckma P. S. Case No. 5597 dated 14-5-1997 under Section 323/379/498A read with Section 34, I.P.C.
3. The police of Eckma P. S. (Bihar) already arrested Ram Ekbal Prasad on 15-5-1997 and he is still in police custody. The present petitioners apprehend arrest at any moment as police parties from Eckma P. S. have been roaming around the place of residence of the petitioners.
4. The contention of the petitioners is that the allegations are false. Moreover, no part of cause of action as alleged arose within the State of Bihar. The case has been started there only to cause harassment of the entire family of the petitioners. It has also been contended that Rarn Ekbal Prasad and petitioner No. 2 are very old couple aged about 70 and 60 years respectively. The petitioners Nos. 2 and 3 are housewives. Petitioner No. 4 is a minor school student. Petitioners Nos. 1 and 5 are engaged in business. There is neither any scope for absconding of any of the accused persons nor any reason for tampering with the evidence.
4A. When the matter was initially heard on 21-5-1997 some doubt cropped up as to the jurisdiction of this Court. Save a Full Bench decision of Patna High Court as reported in 1986 Cri LJ 605 : AIR 1986 Pat 194 none of the decision of most of the High Court hold the view that petitions for anticipatory bail should be entertained only by the High Court of the State in which the case originated and not the High Court where the petitioners stay or apprehend arrest. It will be a futile exercise to go on quoting the decisions of several High Courts of India which hold that the place where the arrest is threatened is relevant for the purpose of fixing jurisdiction for entertainment of petitions for anticipatory bail. Instances are numerous. The only distinction is that all such decisions are either of single Bench or of Division Benches but the Patna High Court decision is of a Full Bench comprising three Judges.
5. On careful reading of the decision of the Patna High Court it appears that the Bench did not consider the provisions of Sections 78 to 81, Cr.P.C. When the warrant is forwarded for execution outside the jurisdiction of a Court and an arrest is made in pursuance of that warrant, the Court in whose jurisdiction the arrest is made may order for release of such persons on bail. If that is permissible, why not an order for anticipatory bail ! This is a very vital aspect which did not receive consideration by the Patna Bench in the above noted case. Question of Article 21 of the Constitution was not taken into consideration by the Patna Bench. This aspect was taken into consideration by a Division Bench of Delhi High Court in a decision reported in 1991 Cri LJ 950 and the Division Bench dissented from the Patna High Court decision.
6. We are of the view that the place where the arrest is threatened should also confer jurisdiction for entertainment of a matter under Section 438, Cr.P.C. Hence, the application is quite in order so far as the jurisdiction is concerned.
7. In consideration of the facts and circumstances of the case I think it to be a just and proper case to invoke the provisions of Section 438, Cr.P.C. The prayer is, therefore, allowed. In the event of arrest by the police, the petitioners should be released on a bail of Rs. 1000/- each on condition that they should make their appearance before the Court where the case is pending, within a month from this date. The petitioners should also make themselves available for interrogation by the police as and when necessary. They would not directly or indirectly make any endeavor to cause harm to the investigation in any manner. They would also not abscond or leave India without prior permission of the Court. They would make themselves available before the Court on the dates fixed by the Court.