Patna High Court - Orders
Zahid Eqbal & Ors vs The State Of Bihar on 25 September, 2014
Author: Akhilesh Chandra
Bench: Akhilesh Chandra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.19124 of 2014
Arising out of Complaint Case No. 966(C) of 2012, Thana - Saharsa, District -
Saharsa for the offences under Sections 420, 467, 468, 471, 404 of the Indian
Penal Code.
======================================================
Anil Kumar @ Anil Kumar Yadav @ Anil Yadav, son of Bindeshwari Yadav,
resident of village - Baijnathpur, P.S. - Sour Bazar, District - Saharsa.
----------Petitioner
Versus
The State of Bihar
-----------Opposite Party
======================================================
With
Criminal Miscellaneous No.20616 of 2014
Arising out of Complaint Case No. 542(C) of 2013, Thana - Patna, District -
Patna, for the offences under Sections 403, 406, 409, 418, 420, 120(B) of the
Indian Penal Code.
======================================================
1. Zahid Eqbal, son of Md. Nazimuddin, resident of 301, B- Block, Shivam
Heritage, Magistrate Colony, Police Station Rajeev Nagar, Ashiana Nagar,
Patna.
2. Santosh Kumar Jha, son of Md. Prakash Chandra Jha, resident of
At+P.O.+P.S. - Bousi, District - Banka.
3. Sanjay Kumar Jha, son of Ramesh Nandan Jha, resident of At Dadani Chak,
P.O. Beldiha, P.S. - Belhar, District - Banka.
4. Vimal Kumar Jha, son of Sureshwar Jha, resident At+P.O.+P.S. - Bounsi,
District - Banka.
5. Pritam Kumar Jha, son of Chandrakant Jha, resident of At+P.O.+P.S.- Bounsi,
Panda Tola, District - Banka.
6. Deepak Sharan Singh, son of Bikrama Singh, resident of At 403, F Block,
Mundeshwary Enclave, Akashwani Road, Khajpura, District - Patna.
----------Petitioners
Versus
The State of Bihar
-----------Opposite Party
======================================================
With
Criminal Miscellaneous No.21866 of 2014
Arising out of Complaint Case No. 1317(C) of 2012, Thana - Madhepura,
District - Madhepura, for the offences under Sections 406, 420, 468, 323, 504 of
the Indian Penal Code.
======================================================
Ajeet Kumar Bhagat, son of Late Parash Bhagat, resident of village - Murliganj,
Nagar Panchayat Ward No. 07, P.S. - Muffasil, District - Madhepura.
----------Petitioner
Versus
The State of Bihar
-----------Opposite Party
======================================================
Appearance:
Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 2
(In Cr. Misc. No. 19124 of 2014)
For the petitioner : Sri Suman Kumar Jha, Advocate
Sri Krishranjan, Advocate
For the Opposite Party : Sri M. Haque, APP
(In Cr. Misc. No. 20616 of 2014)
For the petitioners : Sri N.K. Agrawal, Sr. Advocate
Sri Sanjeev Ranjan, Advocate
For the Complainant : Sri Patanjali Rishi, Advocate
For the Opposite Party : Sri Damodar Prasad Tiwary, APP
(In Cr. Misc. No. 21866 of 2014)
For the petitioner : Sri N.K. Agrawal, Sr. Advocate
Sri Dhananjay Nath Tiwary, Advocate
For the Opposite Party : Sri Ram Chandra Singh, APP
For the Amicus Curiae : Sri S.N.P. Sinha (Sr. Advocate and Ex.
Chairman of Bar Council of India)
Sri Bindhyakeshri Singh, Sr. Advocate
Sri Bimlesh Kr. Pandey, Advocate
Sri Vikaram Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA
C.A.V. ORAL ORDER
13. 25.09.20141. Heard learned counsel for the petitioners and learned Additional Public Prosecutor for the State.
2. All the applicants of all the three cases apprehending their arrest have preferred respective applications under Section 438 of the Code of Criminal Procedure (hereinafter referred to as „Code‟) and since common law point is involved they are taken together and being disposed of by this composite order.
3. It is not required to refer factual aspects in detail but for convenience and appreciation only relevant short facts are being placed.
4. The solitary applicant in 1st case is an accused in Complaint Case No. 966/2012 filed before Chief Judicial Magistrate, Saharsa, for the offences under Sections 420, 467, 468, 471, 404 of the Indian Penal Code (vide Annexure - 1) wherein (vide para 1 of the petition) cognizance after inquiry was taken only Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 3 for the offences under Section 420/34 of the Indian Penal Code.
5. In second application, all the six petitioners are named accused in Complaint Case No. 542(C) of 2013 instituted before Chief Judicial Magistrate, Patna, for the offences under Sections 403, 406, 409, 418, 420, 120(B) of the Indian Penal Code (Vide Annexure - 1) wherein (as per para - 1 of the petition) cognizance after inquiry was taken only for the offences under Section 403, 420, 120(B) of the Indian Penal Code.
6. In third case, the solitary petitioner is an accused in Complaint Case No. 1317(C) of 2012 filed before Chief Judicial Magistrate, Madhepura, for the offences under Sections 420, 406, 468, 323, 504 of the Indian Penal Code (vide Annexure - 1).
7. It is also to be noted that the application under Section 438 of the Code initially preferred by the petitioners above- named have already been turned down by respective learned Sessions Judge, thereafter by way of second attempt these applications have been preferred.
8. Undisputedly, in all such complaint cases after inquiry conducted by the Court, cognizance for the offences have been taken by the respective Magistrates who simply issued summons under Section 204 Cr.P.C. against the accused persons including the petitioners who instead of paying respect to the summons issued by the Court opted to proceed under Section 438 of the Code, but in none of the applications they have assigned any specific reason causing apprehension in their mind of their being arrested as is a mandatory requirement before opting to exercise Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 4 their rights, if any, under Section 438 of the Code.
9. The Apex Court in a case of "Shri Gurbaksh Singh Sibbia and Others Versus State of Punjab", reported in (1980) 2 Supreme Court Cases 565 in Paragraph No. 35 has clearly held as such:-
"35. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe" that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere „fear‟ is not „belief‟ for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 5 arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual‟s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely."
(emphasis bold and underlined by me) The principle enunciated above has also been relied upon and discussed by the Law Commission of India in its 154th report.
10. Initially (I) a question was raised as to validity of exercise of the rights if any and their entitlement of privilege under Section 438 of the Code by an accused in complaint cases wherein after inquiry the Court simply issue summons but during hearing it largely expanded and two other relevant questions also came for consideration, they are:-
(II.) Whether Additional Sessions Judges of any Sessions Division acting as a Special Court exercising powers as of a Magistrate only can also be treated as Court of Session for the purposes of Section 438 of the Code?
(III.) Whether an application under Section 438 of the Code is filed before the Court of Session second application before the High Court can also be preferred?
11. Before further proceeding, it would here be Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 6 necessary to reproduce Section 438 of the Code which reads as such:
"438. Direction for grant of bail to person apprehending arrest - (1) Where any person has reason to believe that he may be arrested on 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 that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:-
(i) the nature and gravity of the
accusation;
(ii) the antecedents of the
applicant including the fact as to
whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 7 Court of Session, has not passed any interim order under this sub-
section or has rejected the
application for grant of
anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.
(1-A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.] (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 8 such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including -
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in-charge of a police station on 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 decides 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 Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 9 Court under sub-section (1)."
12. From the plain reading of Section 438 of the Code initially proposed in the year 2005 by Act no. 25 of 2005 (emphasis underlined and bold) but yet to be made effective or existing even from the date of its introduction for the first time in new Code of 1974. As well from the various decisions of the High Courts‟ as well Hon‟ble Supreme Court it is undisputed that it is a pre-arrest safeguard granted to the person apprehending his arrest without warrant in a matter of non-bailable offences pre or post lodging of the complaint.
13. The law is clear that on getting any information about commission of some crime even before institution of the case police has power, as prescribed within its limit, to exercise and arrest the culprit. Such right continues during investigation and even after submission of charge-sheet in the case further investigation is required. It is needless to reproduce here the relevant provisions as contemplated under the Code relating to investigation and submission of final form.
14. The court in the cases instituted as complaint before police on submission of final form has either to (i) refuse (ii) direct further investigation as the case may be, or accept the same and consequently issue processes etc. for appearance of the accused and proceed for trial or commit the case to the courts competent, as the case may be, and in between the period right from receipt of the police complaint, in the event any accused arrested by the police, is produced, or surrenders, to pass appropriate orders in strict Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 10 compliance of the provisions as contemplated in the Code.
15. It goes to show that since beginning a person involved/required in a police complaint may have apprehension of his being arrested by the police even in false cases initiated at the instance of their enemies just for their detention/humiliation and to safeguard their personal liberty, the legislature after due deliberation has introduced Section 438 of the Code.
16. Contrary to the procedures prescribed for the cases being dealt with by the police since beginning. In the complaint lodged strictly before the Magistrate by a person no accused in such complaint is even required to attend the proceeding (though permitted to watch) or any summon or warrant is issued for their appearance till conclusion of the inquiry conducted by such Magistrate and cognizance for the offences is taken.
17. As a further safeguard, in the event, a complaint is lodged before Magistrate, he also has an option available under law to send it for institution/investigation by the police U/s 156(3) of the Code. If such right is exercised by the Magistrate, such matter is to proceed as of a complaint case lodged before the police, commonly known as police case.
18. The Legislature has not restricted the right of the Magistrate conducting inquiry on the complaint received rather provision has also been made the moment during such inquiry any information is received about ongoing simultaneous police investigation. The Magistrate is to stay the inquiry and do the needful as contemplated under Section 210 of the Code which for Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 11 better appreciation is reproduced here:
"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence - (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 12 the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."
19. Only in the event of conclusion of the inquiry being conducted by the Magistrate, finding prima facie case cognizance in such cases may be taken, and only thereafter any process may be issued as contemplated under Section 204 of the Code reproduced here:
204. Issue of process - (1) if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be -
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-
section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 13(4) When by any law for the time being in force any process fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.
20. In view of the contents made in sub-section (5) of Section 204 of the Code above-mentioned for better appreciation it seems essential to reproduce the provisions as contemplated U/s 87 of the Code which reads as such: -
"87. Issue of warrant in lieu of, or in addition to, summons - A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest -
(a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or
(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 14 and no reasonable excuse is offered for such failure."
21. Here we are mainly concern with the provisions as contemplated U/s 204(1)(b) stated above, the Magistrate taking cognizance is competent enough to issue a warrant, but only in the event he thinks fit, and after compliance of requisition as contemplated under Section 3 and 4 of Section 204 of the Code, may issue summon, obviously in complaint case wherein the Magistrate after conducting inquiry considering the entire material collected takes cognizance, but finding nothing incriminating instead of issuance of warrant, decides to issue a summon against the accused. There appears no reason to cause any apprehension of being arrested in the mind of the person against whom such a lenient view has already been taken on the materials only summons have been issued.
22. The law makers have also inserted Section 205 in the Code which reads as such:
"205. Magistrate may dispense with personal attendance of accused - (1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided."Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 15
23. The above provisions are made only to help the accused against whom a summon has been issued, who in appropriate case can also exercise an additional right to appear through a counsel and avoid his personal appearance with due permission of and condition imposed by the Court.
24. In the event, the required person on such service of summons avoids appearance compelling the court to resort other processes like bailable warrant followed by non-bailable warrant and later on process of attachment etc. How far his conduct entitles him for the privilege of anticipatory bail is a matter having serious concern, which cannot be easily brushed aside.
25. Mr. N.K. Agarwal, learned Senior Counsel, leading the batch of lawyers for the petitioner placed his reliance upon decision of this Court dated 1st October 1980 in a case "Bajranglal Agrawal and others Vs. The State of Bihar" but reported nine years thereafter in the year 1989 PLJR 767. In a complaint case under the section of Bihar Essential Commodities Act, wherein it is held that after taking cognizance an application under Section 438 can be entertained and allowed. He further relied upon the decision of this court in a case "Md. Alam @ Abdul Alam & Ors. vs. The State of Bihar" reported in 1998 (1) PLJR 94, wherein in a family dispute after taking cognizance warrant was also issued and benefit U/s 438 Cr.P.C. was granted. Besides another decision of this Court in a case of "Sri Krishna Gupta vs. The State of Bihar" reported in 2007(4) PLJR 157, wherein also in a complaint case the application under Section 438 Cr.P.C. was held Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 16 maintainable and allowed.
26. Last but not the least, Mr. Agrawal has also placed his reliance on a decision of Hon‟ble Apex Court in a case "Bharat Chaudhary Vs. State of Bihar", reported in 2003(8) SCC 77, wherein in paragraph - 7 it is held:-
"7. .............. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, in our opinion, prevent the courts concerned from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. In our opinion, the courts, i.e. the Court of Session, High Court of this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of CrPC Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 17 even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the court to do so."
27. There cannot be any doubt in the cases wherein on submission of charge-sheet etc. cognizance is taken that itself as the law stands cannot be a bar against entertaining an application U/s 438 Cr.P.C. which is undoubtedly brought into existence to safeguard personal liberty of an individual against any undue wrong committed by their influential enemies just with evil intention. But the moot question here before me is that whether a person against whom the Court after taking cognizance of the offences on the material available decides not to issue warrant of arrest in spite of his competency simply issues summon which in normal course in the event of no respect paid may be followed by bailable warrant and so and so forth.
28. In this context, it may also be noticed that even when a favourable direction U/s 438(1) Cr.P.C. is issued and communicated sub-section (3) provides that in the event the Magistrate subsequently taking cognizance of such offence if decides to issue warrant, he is required to issue initially a bailable warrant only. This goes to show that despite a bailable warrant is issued against alleged offender of a non-bailable offence he has no reason to be apprehensive or fearful of being taken into custody, by the Magistrate issuing summon or bailable warrant.
29. In a police case after completion of investigation and Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 18 submission of final form Magistrate takes cognizance and decides to issue process as per requirement. Here as stated above, if the Magistrate feels requirement of straightway issuance of non- bailable warrant which he can do, but of a direction under Section 438 (1) of the Code he cannot do except issuing a bailable warrant. Whereas in the complaint case only after conclusion of the inquiry and cognizance is taken the Magistrate is required to issue process under section 204 of the Code. In such case before arriving at such stage there is no scope of any apprehension in the mind of the accused, consequently, no direction under Section 438 (1) of the Code can be or is accepted to be received by such Magistrate who despite his competence to issue non-bailable warrant decides to issue summon or bailable warrant. There cannot be any reason for belief of apprehension as required under Section 438 of the Code.
30. The person having/explaining no reason for his disrespect shown to a summon issued by the Court of competent jurisdiction after consideration of the materials, whether can be permitted to misuse the provisions as contemplated under the Code and unnecessarily without any valid reason by seeking recourse under the provisions made especially providing protection to the real aggrieved apprehending the wrongs committed with them and thus obstructing the way of justice to them by Court on due delay and hindrance in administration of justice.
31. Mr. Bimlesh Kumar Pandey, learned Advocate, appearing as Amicus curiae submitted that what would happen in the event of (issuance of summons) after taking cognizance in a Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 19 complaint case for the offences triable by the Sessions Court or he is a convict, since they cannot grant bail to such accused as it is prohibited under the provisions contemplated U/s 437 of the Code which reads as such:-
437. When bail may be taken in case of non-
bailable offence. (1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a [a cognizable offence punishable with imprisonment for three years or more but not less than seven years]:
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 20
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.] [Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub- section without giving an opportunity of hearing to the Public Prosecutor.] (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, [the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail], or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3)When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 21 [the Court shall impose the conditions, -
(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of which he is accused or suspected, of the commission of which he is suspected, and
(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary.] (4) An officer or a Court releasing any person on bail under sub- section (1) or sub-section (2), shall record in writing his or its [reasons or special seasons] for so doing.
(5) Any Court which has released a person on bail under sub- section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 22
(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of the opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
32. The doubt raised by Sri Pandey losses its significance, as rightly contended by Mr. Tiwary, in face of the factors for consideration before granting the privilege U/s 438 Cr.P.C. as prescribed by the Apex Court in a decision reported in "Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312 : (2011) 1 SCC 694", wherein, it is observed:-
"(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused‟s likelihood to repeat similar or other offences;
(v) Where the accusations have been Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 23 made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case.
The cases in which the accused is implicated with the help of sections 34 and 149 of the Penal Code, 1860, the court should consider with even greater care and caution because over-
implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 24 the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
It has been accordingly clarified by the Supreme Court that arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record, and particularly, the allegations which have been directly attributed to the accused, and these allegations are corroborated by other material and circumstances on record.
The Court has termed these factors and parameters as not exhaustive but only illustrative in nature since it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail."
33. Here it would again be relevant to reproduce existing S.41 and 41A after the Code of Criminal Procedure, (Amendment) Act, 2008 (5 of 2009) w.e.f. 01.11.2010 and Code of Criminal Procedure (Amendment) Act, 2010 (41 of 2010), w.e.f. 02.11.2010 which were not available before the Bench in near past considering Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 25 the case of "Sri Krishna Gupta" (supra), reads as such:
"41. When police may arrest without warrant - (1) Any police officer may without any order from a Magistrate and without a warrant, arrest any person-
(a) who commits, in the presence
of a police officer, a cognizable
offence;
(b) against whom a reasonable
complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary -
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 26 evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured;
and the police officer shall record while making such arrest, his reasons in writing:
[Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest;] (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;]
(c) who has been proclaimed as an offender either under this Code or by Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 27 order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356;
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 28 specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.] 41-A. Notice of appearance before police officer - (1) [The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice;Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 29
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officers is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.
41-B -----
41-C -----
41-D -----"
34. From the plain reading of the above provisions recently amended/inserted. It is crystal clear that before or after apprehending anyone the police officer is required to mention specific reasons and even in the event of not intending to arrest anyone required in a matter, he is to be noticed. The law makers have made the provisions stringent to safeguard personal liberty of an individual has granted under the constitution and the Hon‟ble Apex Court in a case Arnesh Kumar Versus The State of Bihar and another reported in 2014(3) BBCJ 282 in paragraph - 11 of the judgment have observed as such:
"11. We are of the opinion that if the provisions of Section 41, Cr.PC which authorizes the police officer to arrest an Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 30 accused without an order from a Magistrate and without an warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce; we would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued." (underlined by me) And issued certain directions as detailed in paragraph -
12 of the judgment which reads as such: -
"12. Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorizes detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:-
(1) All the State Government to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
(2) All the police officers be provided with a check list containing specified sub-clauses under Section 41(1(b)(ii);
(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 31
(4) The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;
(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by Superintendent of police of the district for the reasons to be recorded in writing; (6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of police of the District for the reasons to be recorded in writing;
(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court."
35. The „Code‟ has also given power of arrest to the Magistrate and the procedure etc. has been prescribed in Section 44 of the Code, which reads as such:
"44. Arrest by Magistrate.- (1) When any offence is committed in the presence of a Magistrate, whether Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 32 Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.
(2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant."
36. It is to be taken into consideration the provision under Section 438 of the Code is meant against apprehending arrest. The word „arrest‟ has not even defined anywhere in the Code but in various decisions on basis of the dictionary and other relevant provisions, the Apex Court in a case of "Directorate of Enforcement Versus Deepak Mhajan & Another", reported in (1994) 3 Supreme Court Cases 440, in paragraph nos.- 46 and 47 of the judgment has held:-
"46. The word „arrest‟ is derived from the French word „Arreter‟ meaning "to stop or stay" and signifies a restraint of the person. Lexicologically, the meaning of the word „arrest‟ is given in various dictionaries depending upon the circumstances in which the said expression is used. One of us, (S. Ratnavel Pandian, J. as he then was being Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 33 the Judge of the High Court of Madras) in Roshan Beevi v. Joint Secretary, Government of T.N.17 had an occasion to go into the gamut of the meaning of the word „arrest‟ with reference to various textbooks and dictionaries, the New Encyclopaedia Britannica, Halsbury's Laws of England, A Dictionary of Law by L.B. Curzon, Black's Law Dictionary and Words and Phrases. On the basis of the meaning given in those textbooks and lexicons, it has been held that :
"[T]he word „arrest‟ when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one‟s personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 34 understood by the person arrested."
"47. There are various sections in Chapter V of the Code titled "Arrest of Persons" of which Sections 41, 42, 43 and 44 empower different authorities and even private persons to arrest a person in given situation. Section 41 deals with the power of a police officer to arrest any person without an order from a Magistrate and without a warrant. Section 42 deals with the power of a police officer to arrest any person who in the presence of a police officer has committed or has been accused of committing a non-cognizable offence and who refuses on demand "to give his name and residence or gives a name or residence which such officer has reason to believe to be false". Section 43 empowers any private person to arrest any person who in his presence commits a non-cognizable offence, or any proclaimed offender. Section 44 states that when any offence is committed in the presence of a Magistrate whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender and may thereupon subject to the provisions contained in the Code as to bail commit the offender to custody."
And in paragraph - 48 of the same it is also held:-
"48. ........... It will be appropriate, at this stage, to note that in Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 35 every arrest, there is custody but not vice versa and that both the words „custody‟ and „arrest‟ are not synonymous terms. Though „custody‟ may amount to an arrest in certain circumstances but not under all the circumstances."
37. The aforesaid decision of the Apex Court has recently been discussed and relied upon by the Apex Court in a case of "Sundeep Kumar Bafna Vs. State of Maharashtra & Anr.", reported in 2014(2) BBCJ 466.
38. That apart the law makers have already provided Section 156(3), 202 and 210 in the Code, to avoid such exigency. Normally the Magistrate receiving the complaint is expected to examine the contents and taking into consideration the gravity of the offence, the materials required to be collected, investigation by the police as well their limitation in collecting the necessary materials during inquiry conducted by them exercise their jurisdiction properly and if requires the provisions referred to above are properly appreciated and strictly implemented besides other relevant one prescribed in the Code which they have to do not only at the initial stage but also at the stage of such situation normally will never arise.
39. The Law Commission of India in its 203rd Report dated 26th December 2007 has discussed the apparent misuse of the provisions of law including Section 438 of the Code and finding the local amendments by different State Governments under Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 36 compelling circumstances in the Code of Criminal Procedure and it finds mentioned:
"The working of Section 438 has been criticized in that it hampers effective investigation of serious crimes, the accused misuse their freedom to criminally intimidate and even assault the witnesses and tamper with valuable evidence and that whereas the rich, influential and powerful accused resort to it and the poor do not, owing to their indigent circumstances thus giving rise to the feeling that some are "more equal than others" in the legal process."
40. The proposed amendments in Section 438 of the Code since was subject to criticism, the matter was referred before the Law Commission of India for reconsideration and in its 203rd report towards the end of the year 2007, new recommendations have also been made after considering various decisions including the decision made in the case of "Shri Gurbaksh Singh Sibbia"
(supra) and to avoid misuse of the provision, fresh recommendations have been made and proviso to sub-section 1 besides sub-section 1-B (emphasis bold in preceding paragraph) is recommended to be omitted. A new sub-section on the lines of Section 397(3) is to be inserted clarifying the order passed under Section 438 Cr. P. C. is not an interlocutory order and the text of Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 37 proposed Section 438 Cr. P. C. reads as such:-
"438. Direction for grant of bail to person apprehending arrest.-(1) where any person has reason to believe that he may be arrested on 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 that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:-
(i) the nature and gravity of the
accusation;
(ii) the antecedents of the applicant
including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrest, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.
2. Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 38 with a view to give the Public Prosecutor a reasonable opportunity of being hear when the application shall be finally heard by the Court.
Explanation:-The final order made on an application for direction under sub-
section (1) shall not be construed as an interlocutory order for the purposes of this Code.
3. When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including:
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
4. If such person is thereafter arrested Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 39 without warrant by an officer in charge of a police station on 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 decides 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).
5. If an application under this section has been made by any person either to the High Court or the Court of Session, no further application by the same person shall be entertained by the other of them."
41. And the time will decide in what shape Section 438 of the Code shall come before us after passing different tests but at least this much is crystal clear that whatever the existing provision is that should be strictly interpreted and implemented. No one can rather shall be permitted to take undue advantage of the such provision introduced by the law makers after due deliberations avoiding several conditions etc. to be examined and imposed by the senior courts such as High Court and Court of Session, not below.
42. It is crystal clear that when the Magistrate decides to issue non-bailable warrant against any accused, one may or may not, in the event of production by police after arrest with or without warrant or in the event of suo motu surrender to be taken into custody after notional arrest but, at the same time, in the event of Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 40 issuance of summons or bailable warrant after it is given due respect by the person against whom it is issued. There appears no reason of apprehension of being arrested or taken into custody by the Magistrate, who took such steps.
43. At the end, I cannot restrain myself from citing order dated 16th September, 2014 in a case "Arun Kumar Singh Versus The State of Bihar & Another", which is one of the recent blatant examples of misuse of Section 438 of the Code, wherein, the petitioner in spite of knowing fully well about cognizance taken against him after conclusion of inquiry in a complaint case, for the offence under Section 406 of the Indian Penal Code and Section 138 of Negotiable Instrument Act, and despite competence of Court to issue non-bailable warrant of arrest under Section 204 of the Code only issuance of summons followed by bailable warrant, but instead of responding to such requisition he opted for an application under Section 438 of the Code before learned Sessions Judge and subsequently on refusal before this Court, which of course has been taken by the Bench presided over by me and ultimately noticing such utter misuse and disrespect shown, turned down the prayer.
44. In the above background, with reference to 1st question above-mentioned, it can be said that law makers have made provision of section 438 of the Code only against the reasonable believe of apprehension in the mind of the person against anticipated wrong committed by the police during investigation/inquiry faced on substantial reasons on receipt of the Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 41 complaint, whereon, the F.I.R. may be instituted, but at no point of time, it is said or it can be said that the accused in a complaint case can have any apprehension to be apprehended till inquiry initiated after filing of the complaint before a Magistrate either under section 192 of 200 of the Code. Thus, extending the discretion under Section 438 Cr.P.C. in such a situation if arises may be an exception not a rule. Thus, on overall consideration of the facts and circumstances it may be said that in a complaint case on issuance of summons no person should get the advantage as provided under Section 438 of the Code.
Reference to Question No. 2:-
45. Needless to say that Section 438 of the Code has given a right to apply for a direction before the High Court or the Court of Session. The term "Court of Session", apart from others, as brought in my notice by learned members of the Bar has been discussed by a Full Bench Court in a case of "Kamleshwar Singh v. Dharmdeo Singh", reported in AIR 1957 Patna 375, where in paragraph - 6 this is the unanimous view that:
"6. ............. the words "Court of Session" occurring in Section 408 refers only to the Court of Session presided over by the Sessions Judge and that an Additional Sessions Judge or an Assistant Sessions Judge, as a judge of the Court of Session, has no powers to receive such appeals is well-founded."
And in paragraph - 12 also it is stated:-
Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 42
"12. .............. it was not the intention of the Legislature that the power given to Assistant Sessions Judges and Additional Sessions Judges to hear appeals under Section 409 should include also the power to receive and admit such appeals."
46. Relying over the decision of this Court aforesaid, beside others, a Bench of Rajasthan High Court in a case of "Rajesh Choudhary v. State of Rajasthan", reported in 1987 Criminal Law Journal 411, has held in paragraph - 38 as such:-
"38. ............ legislature has invested special powers on the High Court and on the Court of Session and the Court of Session is equated with the High Court in respect of the powers under S. 439, Cr. P.C. On examining the question from other angles as well the position is clear that the expression "Court of Session"
occurring in S. 439, Cr. P.C. means the "Court of Session" presided over by the Sessions Judge. ........... ."
There appears no difference as stated in Section 438 or 439 of the „Code‟.
47. There is no difference as regard to definition of Courts‟ in the old Code of 1988 or in the present one. The issue with respect to provisions under Section 438 of the new Code was considered by another Full Bench of this Court in a case of "Syed Zafrul Hassan and Another Versus The State", reported in 1986 Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 43 PLJR 274, where in paragraph - 8 it is held:-
"8. .......... The locale of such a crime is thus inextricably linked to the Court of Session or the High Court which exercises jurisdiction with regard thereto. Therefore, "the High Court" or "the Court of Session" in Section 438 means such a Court within whose territorial jurisdiction the accusation of having committed a non-bailable offence arises or is made. ......... ."
48. The Apex Court in a case Balchand Jain Vs. State of Madhya Pradesh reported in 1977 SC 366 in para - 2 while referring the report of Law Commission of India introducing provision of anticipatory bail which reads as such:
"2. ........... And this power being rather of an unusual nature. It is entrusted only to the higher echelons of judicial service, namely, a Court of Session and the High Court. It is a power exercisable in case of an anticipated accusation of non-bailable offence and there is no limitation as to the category of non-bailable offence in respect of which the power can be exercised by the appropriate court."
The above decision has also been subsequently considered by Apex Court in Shri Gurbaksh Singh Sibbia case (supra) and in para - 25 it is stated as such:
"25. .................. We agree, with respect, that the power conferred by Section 438 is of an extraordinary character in the sense indicated above, namely, that it is not ordinarily resorted Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 44 to like the power conferred by Sections 437 and
439. We also agree that the power to grant anticipatory bail should be exercised with due care and circumspection but beyond that, it is not possible to agree with the observations made in Balchand Jain in an altogether different context on an altogether different point."
49. The Guwahati High Court in a case of "State of Meghalaya Vs. District Council Court, Shillong and others"
reported in 1994 (1) East Cr. C. 179(Gau), in para - 9 it is held:
9. ........... That apart, as already stated, under sub-paragraph (3) of paragraph 5 the Code of Criminal Procedure shall not apply to the trial of the offences mentioned in sub-paragraph (1) of paragraph 5. However, for the purpose of „fair trial‟, we are of the opinion that the spirit of Code may be applied, though exact requirements or form of words of law, rule, etc., that is, the latter of law shall not apply. In other words, technicalities of the Code shall not apply but the Court may be guided by the spirit of the Code and shall not be bound by the letter of the Code."
50. Relying upon full Bench decision in Kameshwar Singh‟s case (supra), the Hon‟ble Bench of this Court in a case "Sidheshwar Yadav Vs. State of Bihar" reported in 2004(4) PLJR 418; in paragraph - 12 it is held which reads as such:-
12. From the conspectus of the discussions aforesaid, I am of the opinion that for the purpose of Section 438 of the Code of expression "Court of Session" shall mean the Court of Session presided over by the Sessions Judge and Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 45 Additional Sessions Judge or an Assistant Sessions Judge shall have no power to entertain anticipatory bail application directly but at the same time it cannot be said that they cannot exercise the power of the Sessions Judge in respect of the anticipatory bail application assigned to them either by the Sessions Judge by general or special order or by the High Court by special order."
51. Mr. Agrawal, the learned Senior Counsel, has placed reliance upon a decision of another Full Bench of this Court in the matter of reference made by Shri Ravi Nandan Sahay, Sessions Judge, Patna, as His Lordship then was, reported in 1991 (2) PLJR 519, wherein, the majority view is that the Special Judges having capability of being appointed as Additional Sessions Judges has right to entertain the application under Section 438 Cr. P. C. as regard to the offences for which they are the original courts and exercising the powers conferred upon the Magistrate. However, one of the Hon‟ble Judges has taken a different view but undoubtedly majority view is to prevail but, at the same time, with all due respect it can be said that perhaps decision of Apex Court as well the two earlier decisions of the Full Bench of this Court, referred to above, could not be placed for consideration before the Bench.
52. That apart here it is also to be noticed and considered that there appears no doubt in the proposition that right under Section 438 Cr. P. C. in normal courts can be exercised only Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 46 by the Sessions Judge of a particular Division, not by any other Additional Sessions Judge unless there are any special circumstances.
53. It is undisputed, at least so far this State is concerned, that the senior most Additional Sessions Judge is to be designated as 1st Additional Sessions Judge and has given powers to try the cases under S.C./S.T. (Prevention of Atrocities) Act as Special Judge and Section 18 of the said „Act‟ debars application of Section 438 of the Code. In spite of being senior most Additional Sessions Judge of the Division, he/she can neither exercise powers under Section 438 Cr.P.C. as a general court or as a Special Judge. No doubt, in the said „Act‟ he/she is not to act as a court of original jurisdiction but the cases under the said „Act‟ is to come before him/her only after commitment.
54. Now a day, there are good number of Acts wherein the person having requisite qualification being appointed as Additional Sessions Judge is required to act as Special Judge under particular Act but exercise the powers as of an original court of Magistrate. In practice other Additional Sessions Judges of particular Division have been exercising such powers on being vested with by special orders of this Court.
55. Under the facts and circumstances can it not be said, in one Sessions Division it is only the Session Judge, who has right to exercise the powers under Section 438 Cr. P. C. and other Additional Sessions Judges including those having exercising powers as a Special Judge either as of original court or as a trial Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 47 court after commitment of the cases under particular Act, ordinarily, cannot exercise the powers under Section 438 Cr. P. C. rather the powers under Section 438 of the Code with respect to said Act may be exercised by this Court as a first instance. If it is done, the embarrassing position of senior most Additional Sessions Judge may also be avoided besides wastage of time and energy of different courts, who may exercise their powers under Sections 436, 437 and 439 of the Code, as the case may be.
56. Here it is also taken into notice that Section 37 of the N.D.P.S. Act, which reads as such: -
"[37. Offences to be cognizable and non-bailable
- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27-A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless -
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 48 1973 ( 2 of 1974) or any other law by the time being in force, on granting of bail.] and provides some extra limitations upon exercise of powers of bail under Section 437 of the Code.
57. Simultaneously Section 18 of the S.C./S.T. (Prevention of Atrocities) Act, which reads as such:-
"18. Section 438 of the Code not to apply to persons committing an offence under the Act.- Nothing in Sec. 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act."
also cannot remain unnoticed, which clearly bars the applications of Section 438 of the Code. But there has been rising trend of filing applications under Section 438 Cr. P. C. for the offences under both the Acts initially before the Sessions Judge (who is to exercise the original jurisdiction under N.D.P.S. Act) and, thereafter to this Court.
58. Thus in view of a clear cut provision under Section 18 of the Act. Any application under section 438 of the Code can only be entertained either by the High Court or the Session Court if it is found and hold that offence under any of the provision of the Act is not made out. But law is clear on the point any finding which affects merit of the case should be avoided at the stage of bail, otherwise, it may put the Court proceeding with such case in embarrassing position when he starts deciding what sort of offence is made out.
59. To avoid such situation, the High Court in Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 49 appropriate case exercises its jurisdiction under Article 226 of the Constitution to protect personal liberty of the individual, if it is in danger, at the hands of his enemies with evil intention as taking into consideration in the state of Uttar Pradesh there is no application of Section 438 of the Code has been done prescribed by the Apex Court in "Hema Mishra Vs. State of Uttar Pradesh and others" reported in (2014) 4 SCC 453, where in paragraph 13 earlier decision of Apex Court in a case of "Kartar Singh Versus State of Punjab" reported in (1994) 3 SCC 569 : 1994 SCC (Cri.) 899 is relied upon and sub-paragraph 17 of paragraph 368 is quoted which reads as such:-
"368. (17) Though it cannot be said that the High Court has no jurisdiction to entertain an application for bail under Article 226 of the Constitution and pass orders either way, relating to the cases under the 1987 Act, that power should be exercised sparingly, that too only in rare and appropriate cases in extreme circumstances. But the judicial discipline and comity of courts require that the High Courts should refrain from exercising the extraordinary jurisdiction in such matters."
60. And finally Hema Mishra‟s case is concluded with the following observations made in paragraph 36:-
"36. Thus, such a power has to be exercised very cautiously keeping in view, at the same time, that the Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 50 provisions of Article 226 are a device to advance justice and not to frustrate it.
The powers are, therefore, to be exercised to prevent miscarriage of justice and to prevent abuse of process of law by the authorities indiscriminately making pre-arrest of the accused persons. In entertaining such a petition under Article 226, the High Court is supposed to balance the two interests. On the one hand, the Court is to ensure that such a power under Article 226 is not to be exercised liberally so as to convert it into Section 438 CrPC proceedings, keeping in mind that when this provision is specifically omitted in the State of Uttar Pradesh, it cannot be resorted to as back door entry via Article
226. On the other hand, wherever the High Court finds that in a given case if the protection against pre-arrest is not given, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending trial, the High Court would be free to grant the relief in the nature of anticipatory bail in exercise of its power under Article 226 of the Constitution. It is again clarified that this power has to be exercised sparingly in those cases where it is absolutely warranted and justified."
61. We are required not only to protect the interest of the accused or their personal liberty but as a court of justice, we Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 51 need to maintain a balance and protect the rights of the victims either dead or alive and their family members to get the justice against the wrongs done to them at the earliest and in the event we proceed in the manner aforesaid, it cannot be said anything doing contrary to the intention of legislature or the decisions earlier taken by the various Hon‟ble Courts.
62. In such cases, specially, wherein the Sessions Judge or Additional Sessions Judge has to exercise original jurisdiction either as a general court or as a Special Judge, the applications under Section 438 Cr. P. C. if filed and entertained directly by this Court and only such applications for the offences, other than barred under the Act, may be preferred as first instance before Sessions Judge, may have some balance upon, not only wastage of time but also misuse of the privilege by the accused, causing hindrance in early disposal of the case, wherein, he is involved.
63. The legislature has chosen the High Court and Court of Sessions, not Courts of Sessions to entertain and decide application under Section 438 of the Code. Both the Courts have concurrent jurisdiction. One thing is also common that appeal and revision against the orders of the subordinate courts are also to be preferred before them.
64. In this light it can very well be said, the intention of legislature is to provide jurisdiction to entertain application under Section 438 of the Code to the courts having appellate jurisdiction against the matters arising out of the courts having jurisdiction.
65. It is undisputed that against any order of Additional Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 52 Sessions Judges, no appeal can be preferred before the Sessions Judge. Taking into consideration this aspect, the legislature while deciding to give power of exercising original jurisdiction on a bit different and graver offences upon the persons having fit to be appointed as Sessions Judge, designated them as Special Judge under particular Act and they are to discharge the functions what in general law the Magistrate is to do, but appeal is to be preferred against such Special Judges only before the High Court, not before the Sessions Judge of the Division. Here such precaution appears taken only because, in fact, Additional Sessions Judges are designated as Special Judge but since for the purpose of appeal or revision etc., they are not subordinate to the Sessions Judge, like other Magistrate including those also functions as Assistant Sessions Judges.
66. Thus, the intention of the legislature appears very much clear while introducing Section 438 in the Code empowers High Court and Court of Session instead of Courts of Session that only the authority having power to entertain and admit appeals can entertain such application arising out of the particular matter.
67. Thus, in my opinion, before Sessions Judge, the application under Section 438 of the Code can be filed only in connection with the matters where the Magistrate having original jurisdiction are subordinate to him but such application in connection with any other matter or in connection with the Special Courts, it is the High Court before which such application can directly be filed, but in no case, the courts having original Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 53 jurisdiction including the Special Judge can entertain or decide the application under Section 438 of the Code.
Reference to Question No. 3:-
68. As pointed out by Bar, this issue was placed before a Division Bench of this Corut in "Kusheshwar Prasad Singh Vs. State of Bihar" reported in 1985 PLJR 247 and in paragraph - 7 it is held which reads as such:
"7. ............. That a person whose application for anticipatory bail has been rejected by the Court of Session has the liberty to move the High Court for the same relief."
69. There cannot be any doubt about the right of a person aggrieved by any order of Sessions court has a right (under limitation as prescribed in Court) knocked the doors of this Court but at the same time question arises for consideration whether such rights can be exercised or permitted to be exercised to abuse the process of law and the noble object behind introducing the provision of pre-arrest bail probably known as anticipatory bail.
70. In preceding paragraphs I have already discussed different provisions and arrive at a conclusion that in some of the cases the Court of Session may be held the original court entertaining application under section 438 of the Code, but at the same time for the offences under special acts wherein persons having powers alike Sessions Judge is to exercise original jurisdiction as of a Magistrate for particular offence, the original court for the purposes of Section 438 of the Cr.P.C. is none else Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 54 than this Court.
71. Anyone being aggrieved by the order of Sessions Court in Section 438 Cr.P.C. if opts to knock the doors of this court he will have to not only assign reasons for continuing reasonable people of being apprehended and that too prefer his application at the earliest not beyond maximum period of limitation prescribed for the appeals or revision against the orders/judgment of the courts below against which appeal/revision lie before this Court.
72. I know my constraints as a Judge presiding over a Single Bench, while considering the decisions of concurrent Bench, Division Bench and Full Bench of this Court and for the reasons discussed, my opinion may apparently be a bit different than the decisions taken earlier, but at the same time, in my considered opinion, in view of regular misuse of process of law at the hands of wrong doers, it is the demand of the day.
73. However, the judicial proprietary needs that this matter be referred and decided by an appropriate larger Bench duly constituted by Hon‟ble the Chief Justice on the issues so that issues raised and involved be finally set at rest.
74. Here at this stage, I must consider the time may be consumed in the final decision of the Bench to be constituted by Hon‟ble the Chief Justice, hence, despite in my opinion, none of the petition is maintainable but subject to decision of the Bench, so constituted, the applicants here are, in the event of their arrest or surrender before the court below within four weeks directed to be provisionally released on bail on furnishing bail bond of Rs. Patna High Court Cr.Misc. No.19124 of 2014 (13) dt.25-09-2014 55 10,000/- (ten thousand only) each with two sureties of the like amount each to the satisfaction of respective courts in connection with the cases referred to above, subject to the condition laid down under Section 438(2) of the Code of Criminal Procedure, with additional condition to remain physically present before the court below on each and every date till disposal of the case and in case of failure of two consecutive dates, the liberty granted shall be deemed to be cancelled.
75. With the above direction and reference before Hon‟ble the Chief Justice for further needful; all the three applications stand disposed off.
(Akhilesh Chandra, J.) Rajeev/ Praveen/ (A.F.R.)