Kailashpati Kedia vs State Of Maharashtra And Ors. on 27 March, 1996
Equivalent citations: 1996 (0) MPLJ 847
Author: R Shukla
Bench: R Shukla, S Sakrikar
ORDER
R.D. Shukla, J.
1. This order shall dispose of the reference made by learned Single Judge in this case.
2. The brief history of the case is that applicant who is a resident of Saket Nagar, Indore filed an application under Section 438 of Code of Criminal Procedure (hereinafter referred to as 'the Code') seeking a direction for being enlarged on bail if arrested, popularly known as anticipatory bail.
3. Applicant is engaged in liquor business-distillation and export thereof. It is asserted that a case under Sections 65(a), 65(b), 66(l)(b), 80, 81 and 108 of the Bombay Prohibition Act, 1949 has been registered in Maharashtra against some persons including the present applicant. Some of the accused persons have been arrested. Accused-applicant is also apprehending his arrest at Indore. He has further stated about the details of the ailment of his father and his own ill-health.
4. Learned Single Judge issued notice to the State and after hearing the arguments as there was difference of opinion between two learned Single Judges of this High Court; Justice K. L. Shrivastava (as he then was) and Justice B. M. Lai (presently Judge in State of U. P.), referred following question of law to Hon'ble the Chief Justice for being placed before a larger Bench. It is in this background that the reference has been placed before this Division Bench.
"Whether any person, residing in local jurisdiction of this Court and having reason to believe that he may be arrested on accusation of having committed a non-bailable offence, outside the local jurisdiction of this Court, can apply to this Court under Section 438, Criminal Procedure Code for his release, in the event of his arrest?"
5. Justice Shri K. L. Shrivastava, in the case of Narendra Kumar v. State of M. P. and Anr., reported in 1989 C.Cr. J. 126, held as follows :-
"On a careful consideration I am of opinion that this Court has jurisdiction to entertain the application for anticipatory bail filed by the petitioner who resides within the jurisdiction of this Court though he apprehends arrest in connection with a case which has arisen and is registered against him outside the jurisdiction of this Court."
6. Justice Shri B. M. Lal, in the case of Prakash Chandra Soni v. State of M. P., 1990 JLJ 513 has held that the place of the residence of applicant does not give power to the Court to invoke jurisdiction under Section 438, Criminal Procedure Code i.e. to say the person apprehending his arrest is required to file application before the Sessions Court or the Court having jurisdiction over the case.
7. Learned counsel for applicant Shri A. M. Mathur submitted that looking to the scheme of the Code a citizen is entitled to approach the Court where he apprehends his arrest. It is not necessary for the person to rush to the place where the case has been registered or is being investigated upon under certain complaint/or First Information Report, as the case may be. He has placed reliance on the following decisions :-
1. AIR 1977 SC 366 With spl. ref. to Paras 4, 17 and 18. 2. AIR 1980 SC 1632 = 1980 Cri.LJ 1125. Paras 4, 6, 11, 1-2 with spl. ref. to Paras 4, 6, 11, 12, 16, 35, 38 and 39. 3. 1994 Cri.LJ 1962 (SB) (Rajasthan) 4. 1992 Cri.LJ 3442 (DB) (Kerala) 5. 1991 Cri.LJ 950 (DB) (Delhi) 6. 1985 Cri.LJ 1887 (DB) (Bombay) 7. 1982 Cri.LJ 61 (DB) (Calcutta) 8.1984 Cr. LJ 757 (SB) (Karnataka)
8. Learned counsel for State Shri G. Desai on the other hand has submitted that since there is initial lack of territorial jurisdiction the Court has no power to issue directions for admitting the applicant to bail. It has also been submitted that in certain Provinces like Uttar Pradesh by the State amendment, the provisions of Section 438, Criminal Procedure Code has been withdrawn and, therefore, if jurisdiction under Section 438 of the Code is exercised by the Courts having no jurisdiction over the matter anomalous position would be created and there may be conflict of jurisdiction leading to contradictory decisions.
9. Shri Desai has placed reliance on cases reported in : (i) 1983 Cri.LJ 1182 (S.B.) (J &K), Mohansingh v. Commissioner of Police; (ii) 1984 Cri.LJ 714 (S.B.) (P & H), Ravinder Mohan Bakshi and anr. v. State of Punjab and ors.; (iii) 1986 Cri.LJ 605 (FB) (Patna), Sayed Zafrul Hassan and anr. v. State and (iv) 1996 (1) SCC 667, Salauddin Abdulsamad Shaikh v. State of Maharashtra (KB.).
10. Before dealing with the powers of the Court under Sections 437, 438 and 439 of the Code, we would like to examine the scheme of the Act as to the warrant of arrest and the execution thereof. Section 70 of the Code deals with the form of warrant of arrest and duration of the same. Section 71 deals with the power to direct security to be taken. Section 72 deals with to whom the warrant is to be directed. Section 73 authorises the Courts to direct any person for execution of warrant. Sections 74 to 77 deal with the warrant directed to be executed by Police Officer and for bringing the offender to the Court. Section 77 authorises the officer to execute the warrant at any place in India.
Sections 78 and 79 of the Code deal with the warrant forwarded for execution or directed to the police officer for execution outside the jurisdiction. Sections 80 and 81 deal with the procedure to be followed after arrest of the person.
11. Section 81 of the Code reads as follows : -
"81. Procedure by Magistrate before whom such person arrested is brought. -
(1)........Proviso (i).. ..
(ii) Provided further that if the offence is a non-bailable one, it shall be lawful for the Chief Judicial Magistrate (subject to the provisions of Section 437), or the Sessions Judge, of the district in which the arrest is made on consideration of the information and the documents referred to in sub-section (2) of Section 78, to release such person on bail.
(2)........"
This second proviso to Section 81 of the Code has been added in the Code of Criminal Procedure, 1973.
12. Section 86 of the Code of 1898 (Old Code) does not contain provisions like second proviso to Section 81 of the new Code. This goes to show that the scheme of the Code is to give respite and relief to the person arrested in pursuance of the warrant executed outside the jurisdiction of the Court.
13. Section 438 of the Code provides :
"When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. Sub-section (2)(i), (ii), (iii), (iv) and sub- section (3) of Section 438 of the Code deals with the directions to be issued and conditions to be imposed by the Court granting bail."
14. Looking to the scheme of the Code it is evident that the legislature intended to extend the benefit of bail to a person arrested outside the jurisdiction of the Court which issued the warrant and thereby the Courts have been authorised to exercise jurisdiction for release of the accused in cases not arising within their jurisdiction.
15. The only difference that would arise in exercise of jurisdiction under Sections 81 and 438 of Code would be that in the former case a person has been arrested in a case registered beyond the local jurisdiction of the Court and in a later case the person is apprehending his arrest in a case registered beyond the jurisdiction of the Court.
16. If the same analogy as per second proviso to Section 81 of the Code is taken for exercising powers under Section 438 what comes out is that the Court may issue a direction for admitting the person apprehending his arrest to bail. Of course, this power is to be exercised with caution and in, appropriate cases only the possible conflict and contradictory decision ought to be avoided. But that would be a matter of propriety and the manner of discretion to be exercised but that does not mean that Section 438 of the Code in any way prohibits or inhibits exercise of jurisdiction in cases arising beyond the jurisdiction of the Court.
17. It is clear that in enshrining the salutary provision in Section 438 which applies only to non-bailable offences was to see that the liberty of the subject is not put in jeopardy on frivolous grounds at the instance of unscrupulous or irresponsible persons or officers who may some times be in charge of prosecution. Reference may be had to AIR 1977 SC 366 (Para 15).
18. The facility which Section 438 of the Code affords is generally referred to as Anticipatory Bail, an expression which was used by the Law Commission in its 41st report. Neither the section nor its marginal note so describes it but, the expression 'anticipatory bail' is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest.
The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore, effective at the very moment of arrest. Reference may be had to AIR 1980 SC 1632.
19. The High Courts of Rajasthan, Kerala, Delhi, Bombay, Calcutta and Karnataka have taken a view that the anticipatory bail can be granted in a case registered beyond the jurisdiction of the Court concerned. However, the High Courts at Jammu & Kashmir, Punjab & Haryana and Patna have taken a contra view.
20. We are inclined to accept the view taken by majority of High Courts.
21. We would, therefore, answer the reference in the affirmative and hold that anticipatory bail can be granted even in cases where the offence has been registered at a place beyond the jurisdiction of the High Court but within the territory of India.
22. As observed in earlier paragraphs the Court while issuing a direction should try to avoid conflict of jurisdiction and contradictory decisions and therefore, anticipatory bail should be of a limited duration and on expiry of that duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter :
"When the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration, the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted." .... (1996) 1 SCC 667.
23. In our considered opinion, therefore, while granting bail in such cases (cases arising beyond jurisdiction), the bail should be granted for a limited period with specific direction that the person so released shall approach the Court having jurisdiction over the matter within the period specified therein.
24. Learned counsel for applicant then submitted that learned Single Judge has refused to grant interim bail and, therefore, the same be granted by this Court (Division Bench). Only a question of law has been referred to this Court. It would, therefore, be inappropriate to pass an order on merit. Even otherwise we have not heard the arguments on merit and, therefore, propriety and judicial discipline demands that the matter should be left to the discretion of learned Single Judge, seized with the matter.
25. As a result we answer the question in affirmative and hold that the anticipatory bail can be granted in cases arising beyond the jurisdiction of the Court having invested with the powers of grant of anticipatory bail.
26. Such anticipatory bail should normally be granted only for a limited duration and the person so released be directed to approach the Court within the period specified therein if he so desires and thereby the Court granting anticipatory bail should leave it to the regular Court to deal with the matter after expiry of the duration.
Now the case shall be listed before the learned Single Judge for disposal of the case on merit.
