Oppose anticipatory bail

2005 (2) KLT  685 

Hon'ble Mrs.Justice K. Hema

Kunhiraman v. State of Kerala 

Dear Dhawal , I hope this ruling may help you

Bail App. Nos.778 & 779 of 2005.

Decided on 9th March, 2005.

Criminal P.C. 1973, S.438 -- Power vested in the Court under the section can be exercised by hearing the petitioner as well as such other party as the Court may deem fit and proper, depending up in the facts and circumstances of each case.

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No Court dispenses with a notice to the Prosecutor in an application under S.438 of the Code of Criminal Procedure, though the Section does not distinctively contemplate issuance of notice to Prosecutor or hearing of either the Prosecutor or the petitioner. There is nothing in the section to indicate that the said power can be exercised by hearing the petitioner and the Public Prosecutor alone. So, if the Court feels that one more person viz, the injured or the aggrieved must also be heard, no provision in the code prohibits the Court from doing so. Anyway, prohibition and restrictions in S.301 and other related provisions apply not to an application under S.438 Cr.P.C. The power vested in the Court under S.438 Cr.P.C. can be exercised by hearing the petitioner as well as such other party as the Court may deem fit and proper, depending on the facts and circumstances of each case. Learned counsel appearing for the Bank/complainant was permitted to be heard in the matter and the applications filed by him are allowed to that extent. On hearing him and both sides and on considering the facts of the case, I find that the allegations made against the petitioner are serious in nature. Several aspects have to be investigated into by the police in the light of the allegations made in the complaint. For an effective investigation even custodial interrogation may be necessary. In the above circumstances, if anticipatory bail is granted it will adversely affect the investigation. The objection made by learned public Prosecutor and learned counsel appearing for the de facto complainant is not without merit and I do not think fit to grant anticipatory bail to the petitioner. (paras.12 & 18)

1980 Crl.L.J. 1159; 1991 Crl.L.J. 1774;

2001 SCC (Crl.) 1124 & AIR 2002 SC 395 Relied on

Babu S.Nair For Petitioner

Public Prosecutor (T.K. Kunhabdulla) For Respondent

ORDER

K. Hema, J.

The main question posed in these cases is this: Can the de facto complainant or the aggrieved be heard or be impleaded in an application for anticipatory bail?

2. Petitioner filed application for anticipatory bail under S.438 Cr.P.C.as B.A.No.778/2005 and B.A.No.779/2005 on the allegation that he apprehends arrest in a non-bailable offence in view of the complaint filed by the Federal Bank against him under S.420 I.P.C. According to the prosecution, the petitioner pledged with the bank certain spurious gold ornaments in the Bank over a period of few years and playing deception on the Bank obtained lakhs of rupees from the three branches of Federal Bank on different dates. On noting the cheating, the Bank lodged a complaint before the respondent/police.

3. Petitions were filed by the Federal Bank to implead the Bank as respondent No.2 in the bail applications as Crl.M.A.Nos.2103 and 1864 of 2005 respectively. These were opposed by the petitioner.

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4. Since the parties are same and the dispute is also similar in both applications, these cases are being disposed of by this common order.

5. Heard both sides and also the learned counsel appearing for the Federal Bank.

6.   Learned counsel appearing for the petitioner placed reliance upon the various decisions and strongly contended that the Bank/de facto complainant has no right to get itself impleaded in the application for anticipatory bail and that it has no right even to be heard in these applications. No provision in the Code permits this. Further, in view of S.301 Cr.P.C. only a Public Prosecutor can appear before this Court and contest the case, but a private individual or a complainant has no right to be heard in an anticipatory bail application. Reliance was placed upon Kuldip Singh v. State of Haryana, 1980 Crl.L.J. 1159 and Indu Bala v. Delhi Administration, 1991 Crl.L.J. 1774.  In the latter decision, it was held as hereunder:

"S.438 of the Code of Criminal Procedure does not contemplate by itself any hearing to be given to the complainant party in a police case........   The various provisions in the Code of the Criminal Procedure, particularly Ss.417, 422, 493 & 494 bring out the importance of functions and duties of a Public Prosecutor, who is the sole authority to conduct the cases instituted by the police on behalf of the State. He is supposed to act independently and exercise his own discretion to see that justice is done in such cases."

7. Referring to the scope of S.301 of Cr.P.C. it was also held in Indu Bala's case (supra) as hereunder:

"So, it is evident that a complainant can only assist the Public Prosecutor when the proceedings are being conducted at the stage of inquiry, trial or appeal.  Such a complainant can submit written arguments after the evidence is closed in the case but as far as application for grant of bail is concerned there is no provision made in the Code of Criminal Procedure that a complainant or a third party can intervene and make any submissions independently in opposing the application for grant of bail or anticipatory bail............... In view of the above discussion, I hold that counsel for the complainant has no right to be heard in these petitions. He can brief the State counsel and it is only the State counsel who can be heard in opposition to these applications seeking anticipatory bail."

8. Learned Counsel appearing for the petitioner also cited P.S.Saravanabhavanandam v. S.Murugaiyyan, 1986 Crl.L.J. 1540, wherein a Single Judge of the Madras High Court considered the question whether a third party could pray for being impleaded in the proceedings before the Criminal Court. By making reference to S.301 of the Code of Criminal Procedure, the Court found that the same enables the private parties to assist the prosecution and also submit written arguments with the leave of the Court. It was held that there is no provision for a third party to intervene in the anticipatory bail application with a view to represent the matter before the Court. The learned Single

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Judge laid down that when a party cannot be impleaded in a criminal proceeding, he cannot be permitted to come in under the guise of an intervener. It was held thus:

"The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case."

9. From a reading of the above decisions it is clear in all those decisions, reference was made to the scope of S.301 of Cr.P.C. So, to appreciate the contention raised based on the said decisions, I will consider scope of S.301 Cr.P.C. itself. The said section reads as follows:

"S.301.-- Appearance by Public Prosecutors.-- 

(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case."

A reading of S.301 Cr.P.C. would go to show that this section relates to mainly the role of Prosecutors and their right to appear etc., in an "inquiry, trial or appeal" before a Court. It also lays down the limited role of private persons in such matters. But, the said section has no application to the present case because the present proceedings is neither an "inquiry, trial or appeal". The cases at hand are applications for anticipatory bail. Those are not appeals, and no enquiry or trial is involved in these cases. S.301 applies only in cases where there is "inquiry, trial or appeal" and hence it has no application to an application for anticipatory bail. The restrictions and bar under S.301 Cr.P.C. cannot be applied to a proceedings under S.438 Cr.P.C.

10. Therefore, with due respect, I hold that I cannot place reliance upon the above decisions in the present context. S.438 Cr.P.C. refers to an application for anticipatory bail. No "inquiry, trial or appeal" as contemplated by the Code is involved in the matter. S.438 Cr.P.C. can be invoked by the Court on an application made by a person who is

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apprehending arrest in a non-bailable offence. On such application being made, if the Court "thinks fit" direct that the accused be released on bail in the event of his arrest. It is clear from the said section that it is only the satisfaction of the Court that is relevant and crucial for giving a direction under S.438 Cr.P.C. The relief under S.438 can be granted provided the Court "thinks fit".

11. When can the Court "think it fit" to grant anticipatory bail? The Court will have to consider the relevant facts relating to the case to arrive at such satisfaction. Details of the case have to be obtained from the case diary which will be available with the Prosecutor. The Court may look into the case diary produced by the Prosecutor, though the section does not provide for perusal of documents. Though the section does not specify that a notice should be given to the Public Prosecutor, the Court normally gives notice to the Public Prosecutor. The Court hears petitioner and the Prosecutor though the section does not state that they should be heard. But, all these are done with a view to ascertain the relevant facts which will help the Court to take a right decision in the matter. All these will be essential for the Court to 'think it fit' to invoke S.438 and exercise the powers under the said section.

12. Therefore, no Court dispenses with a notice to the Prosecutor in an application under S.438 of the Code of Criminal Procedure, though the section does not distinctively contemplate issuance of notice to Prosecutor or hearing of either the Prosecutor or the petitioner. There is nothing in the section to indicate that the said power can be exercised by hearing the petitioner and the Public Prosecutor alone. So, if the Court feels that one more person viz., the injured or the aggrieved must also be heard, no provision in the code prohibits the Court from doing so. Anyway, prohibition and restrictions in S.301 and other related provisions apply not to an application under S.438 Cr.P.C. The power vested in the Court under S.438 Cr.P.C. can be exercised by hearing the petitioner as well as such other party as the Court may deem fit and proper, depending on the facts and circumstances of each case.

13. Learned counsel appearing for the petitioner submitted that by hearing the de facto complainant, it is likely that the Court will be prejudiced since a private complainant will be swayed with emotions to get an order in his favour and therefore, the complainant cannot be given a right of hearing. I cannot disagree with the counsel to the limited extent that an aggrieved person will be interested in his own cause and hence he will be moved by emotions. But, the Court will be in a position to understand his emotions and even his over-anxiety if any, in opposing the bail application. Tears of aggrieved, whether genuine or not, cannot mystify the judicial vision and none of such matters can outweigh the court's decision to hear a party to exercise the jurisdiction in a fit and proper manner under S.438 Cr.P.C. By allowing a complainant or an aggrieved to be heard, it cannot be said that the Court will be influenced by the emotions of the aggrieved or get prejudiced against a deserving accused. The courts can act balanced

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even if all the parties concerned are heard. In fact hearing of all parties concerned can only aid the Court in taking a right decision and not otherwise. Looking at the issue from any angle therefore, I find that there is no bar for hearing the complainant or the aggrieved also in an application for anticipatory bail.

14. In this connection it is relevant to note that Honourable Supreme Court considered the right of aggrieved person in applying for cancellation of bail under S.439(2) Cr.P.C., though the provision does not apparently enables this. It was held that such a person will be entitled to move the Court for cancellation of bail. Learned counsel appearing for the Bank/complainant placed reliance upon Puran v. Rambilas & Anr., 2001 SCC (Cri.) 1124, wherein Supreme Court said thus:

"The framework of S.439(2) Cr.P.C indicates that it is a power conferred on the Courts mentioned therein. There is nothing to indicate that the said power can be exercised only if the State or investigating agency or a Public Prosecutor moves a petition. The power so vested in the High Court can be invoked either by the state or by an aggrieved party. The said power could also be exercised suo motu by the High Court. Therefore, any member of the public, whether he belongs to any particular profession or otherwise can move the High Court to remind it of the need to exercise its power suo motu. There is no barrier either in S.439 of the Criminal Procedure Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. If the High Court considers that there is no need to cancel the bail then it can dismiss the petition. It is always open to the High Court to cancel the bail if it feels that there are sufficient reasons for doing so."

15. In this context it is also relevant to note another decision cited by the Learned Counsel appearing for the Bank/complainant. In Dharmendra Chandulal Patel v. State of Gujarat, AIR 2002 SC 395, Supreme Court heard and considered the apprehensions of the widow of the deceased in a murder case that the accused in that case hurls threats to her and her children. Her objection was considered and acted upon. The Supreme Court, after giving due weight to the objection of the widow, imposed a condition while granting bail to the accused directing  him to incorporate an averment in the affidavit that he should not cause anything by which the widow or her children or her kith and kin will have any room for such fear. Though the Supreme Court has not considered specifically the right of a de facto complainant or the aggrieved in raising objection in a bail application, there is a clear indication that the Supreme Court heard the grievances of the widow, in a bail application.

16. All these give sufficient assurance to me to hold that an aggrieved can be heard. The right of hearing of an aggrieved person by the court appears to be well-recognised. What guides the various courts in such issues is the absence of any barrier in the relevant section or in any other law which inhibits a person from moving the court to exercise the powers under the relevant section. In the above circumstances, I hold that in the

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absence of specific provisions barring the de facto complainant or the aggrieved to be heard in an anticipatory application, the de facto complainant can be heard in the matter.

17. Summing up my discussions I hold that there is no legal bar for hearing the de facto complainant in an application for anticipatory bail. Theoretically of course, there is no provision in the Code for impleading a party, but nothing prevents the Court from hearing the de facto complainant or aggrieved in an application for anticipatory bail. In fit cases, the Court can afford to the aggrieved or the de facto complainant an opportunity of hearing. Technicalities shall not baffle the judicial mind. It cannot hinder course of justice, either. Principles of natural justice shall not remain a mere paper-philosophy. If adhered to, it can never spill over and tend to spoil justice delivery system. Court can hear the aggrieved and not bang its doors to the one who knocks. The Court exists to redress the grievance that of the accused or the aggrieved. After all, it is all for the purpose of taking a right decision in the case.

18. Learned Counsel appearing for the Bank/complainant was permitted to be heard in the matter and the applications filed by him are allowed to that extent. On hearing him and both sides and on considering the facts of the case, I find that the allegations made against the petitioner are serious in nature. Several aspects have to be investigated into by the police in the light of the allegations made in the complaint. For an effective investigation even custodial interrogation may be necessary. In the above circumstances, if anticipatory bail is granted it will adversely affect the investigation. The objection made by learned Public Prosecutor and learned counsel appearing for the de facto complainant is not without merit and I do not think fit to grant anticipatory bail to the petitioner.

Crl.M.A.No.2103/05 in B.A.No.778 of 2005 & Crl.M.A. No.1864/05 in B.A.No.779 of 2005 are disposed of accordingly.

B.A.Nos.778 & 779 of 2005 are dismissed.