2003 ALL MR (Cri) JOURNAL 47
(KARNATAKA HIGH COURT)

K. SREEDHAR RAO, J.

Dr. A. Ebenezer Vs. State Of Karnataka

Cri. Petition No.2806 of 2002

5th August, 2002

Petitioner Counsel: C.V. NAGESH
Respondent Counsel: M. MARI GOWDA

Criminal P.C. (1973), S.438 - Anticipatory bail - Grant of - Is discretionary - Relief cannot be granted once charge sheet is filed.

The relief of anticipatory bail is a discretionary relief and should be exercised only when a person has reason to believe that he may be arrested on a accusation of having committed a non-bailable offence. Under sub-section (2) the Court while granting anticipatory bail can stipulate conditions that a person should make himself available for interrogation as and when required and that he shall not tamper the witnesses by dissuading them from disclosing such facts to the Court or to any Police Officer. The other conditions which may be under sub-section (3) of Section 437 can also be imposed . A condition on the restraint of movement from leaving India without the previous permission can also be imposed. [Para 4]

In the back drop of the object and purpose of the provisions of anticipatory bail, it does not really warrant to make the provision of S.438, Cr.P.C. applicable after filing of a final report and grant of anticipatory bail in such a situation is only a redundant effort. The accused who comes to know the issuance of NBW in a Court of law without the aid of S.438, Cr.P.C. has a relief of seeking recall of the N.B.W. under sub-sec.(2) of S.70 by showing proper reasons and simultaneously make a regular bail application. Sometimes it is cynically argued that the trial Court would not be liberal in granting bail in non-bailable offences when N.B.W. is issued and the voluntary surrender/appearance before the Court would only make the accused suffer detention for a day or two pending disposal of the bail application on merits. The provisions of anticipatory bail is not meant to curtail the lawful jurisdiction to the Magistrate or the trial Court. A bail application u/S.437/439, Cr.P.C. has to be disposed of by the competent Court in accordance with law. In that context, granting anticipatory bail in respect of N.B.W. issued by a Court of law would only serve to strengthen the cynical arguments. In that view of the matter, I find no merit in the contention of the Counsel for the petitioner that the provisions of S.438 could be invoked in respect of NBW issued by a Court of law after filing of charge sheet. [Para 9]

Cases Cited:
Sheik Khasim Bi Vs. State, (FB) 1986 Cri.L.J. 1303 [Para PARA2]
Gurubaksh Singh Sibbia Vs. The State of Punjab, AIR 1980 SC 1632 [Para PARA6]


JUDGMENT

-The petitioner is an accused in C.C. No.18070/2001. On a private complaint, a case is registered against the accused/petitioner for committing offences punishable under Sections 448, 506 and 313, IPC. The complainant/victim claims to be the wife of the petitioner, according to the complaint. After checkered rounds of litigation before this Court and Apex Court, ultimately the trial Court, after recording sworn statements, issued process against the petitioner for his appearance. On the date of appearance, the Counsel appearing for petitioner made an application for exemption under Section 317, Cr.P.C. along with medical certificate to show that the petitioner is admitted in hospital and he is under treatment. The trial Court by the impugned order rejects the application on the ground that the other side opposes the application and thus directs issuance of N.B.W.

2. The Counsel for the petitioner relied on the Ruling of the Full Bench of Andhra Pradesh High Court reported in Sheik Khasim Bi Vs. State (FB) 1986 Cri LJ 1303 to bring home the point that even after filing of a charge sheet in respect of warrant issued by a criminal Court, anticipatory bail could be granted under Section 438, Cr.P.C.

3. After carefully going through the said ruling, I respectfully disagree with the view taken by the Andhra Pradesh High Court, for the following reasons :

For convenient reference, the provisions of Section 438, Cr.P.C. is reproduced hereunder:

"438. Direction for grant of bail to person apprehending arrest:-

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions 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.

(2) 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.

(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 Court under sub-section (1)."

4. Sub-section (3) of Section 438, Cr.P.C. declares that when an anticipatory bail is granted, the S.H.O. could be directed to release the accused on bail in the event of arrest on taking necessary bail bond and if a Magistrate taking cognizance of an offence, decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant irrespective of the provision contained in S.204 of Cr.P.C. The Magistrate issuing summons/warrant to accused would arise only after filing of the charge sheet. During the stage of investigation, there is no scope for the Magistrate to issue warrant or summons to accused to appear before him. Therefore the contingency of Magistrate issuing a bailable warrant instead of non-bailable warrant in the face of anticipatory bail would arise only at a stage after filing of a charge sheet. Sub-section (1) of Section 438, Cr.P.C. empowers the Sessions Court and the High Court to grant the relief of anticipatory bail. The relief of anticipatory bail is a discretionary relief and should be exercised only when a person has reason to believe that he may be arrested on a accusation of having committed a non-bailable offence. Under sub-section (2) the Court while granting anticipatory bail can stipulate conditions that a person should make himself available for interrogation as and when required and that he shall not tamper the witnesses by dissuading them from disclosing such facts to the Court or to any Police Officer. The other conditions which may be under sub-section (3) of Section 437 can also be imposed . A condition on the restraint of movement from leaving India without the previous permission can also be imposed.

5. Section 436 of Cr.P.C. deals with grant of bail in relation to bailable offence. Section 437, Cr.P.C. relates to grant of bail in non-bailable offences. Section 439, Cr.P.C. gives wide discretion to the Sessions Court and the High Court to grant bail notwithstanding the provisions contained in subsection (2) of Sections 436 and 437, Cr.P.C.

6. The constitutional Bench of Supreme Court in Gurubaksh Singh Sibbia Vs. The State of Punjab, AIR 1980 SC 1632 in para 4 refers to the recommendation report of the Law Commission about justified need of incorporating the provision for anticipatory bail in Cr.P.C. which reads thus (at page 1636; of AIR) :

"4. The Cr.P.C. 1898 did not contain any specific provision corresponding to the present S.438. Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether Courts had the inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did not have such power. The need for extensive amendments to the Cr.P.C. was felt for a long time and various suggestions were made in different quarters in order to make the Code more effective and comprehensive. The Law Commission of India in its 41st Report dated Sept.24, 1969 pointed out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant "anticipatory bail".

It is observed in para 39.9 of its report (Vol.I):

"39.9. The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometime as influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter ......." (Underlining supplied by me)

So also in para 7 deals with the purpose and object and consequences of anticipatory bail in contra distinction with the powers and consequences of regular bail. From the aforesaid observations, it becomes implicit that the object of empowering the Sessions Court and the High Court to grant anticipatory bail is to protect the innocent persons from harassment and high-handed tactics of the investigation agency. The conjunct reading of the provisions of sub-sec. (1) with the provisions of sub-sec. (3) would indicate that the provision of anticipatory bail would be totally irrelevant after filing of the final report/charge sheet. In the normal course of investigation of a non-bailable offence, the Police Officer is empowered with the powers of arrest without a warrant under Sec.2(c). The experience has shown the abuse of powers by the investigation agency subjecting the innocent persons to harassment. The power of arrest exercised by the Police Officer during the course of investigation cannot be equated to an arrest by a Police Officer pursuant to the issuance of N.B.W. by a Court of law in respect of a defaulted or an absconding accused. In the former case, the Police Officer exercises executive discretion as Investigation Officer. In the latter case he only acts as an agent of a Court of law in enforcing the order of N.B.W. The risk and vulnerability found in the powers of the arrest by a Police Officer during investigation u/s. 2(c) are totally absent when the Police Officer arrests a person pursuant to N.B.W. issued by a Court of law.

7. The object and the purpose of the provisions of anticipatory bail could be better understood by combined reading the provisions of sub-sec. (1) with sub-sec. (3) of S.438 the contingencies postulated in sub-sec. 3) will come into effect only after grant of anticipatory bail. The Police Officer concerned has to admit the accused on bail in the event of arrest. The Magistrate as aforesaid necessarily gets jurisdiction to issue a bailable warrant to the accused only after filing of a charge sheet. Any attempt to enlarge the scope of S.438. Cr.P.C. to make the provisions applicable to persons against whom a charge sheet is filed before court appears to be irrelevant and purposeless. No doubt under S.438, Cr.P.C. the Court has wide discretionary powers to admit the accused to bail and can also consider the reasonable and valid grounds made out by the accused in granting a complete relief of bail u/S.438. The discretionary powers of grant of anticipatory bail is made clear in Gurubhaksh Singh's case in paras 36, 37, 38. The ratio laid down makes it clear that while granting anticipatory bail if there are no full facts and material available and the exigencies of case warrant granting a conditional relief u/S.438, Cr.P.C. the High Court or the Sessions Court can grant anticipatory bail limited in point of time and can also direct the petitioner to seek regular order of bail u/S. 437/439, Cr.P.C. within reasonable time.

8. The close reading of sub-sec. (3) of S.438, Cr.P.C. discloses that a Magistrate taking cognizance of any non-bailable offence in respect of an accused who has the benefit of an anticipatory bail, the Magistrate in the first instance has to issue only a bailable warrant to secure the attendance before the Court for the purpose of trial. The accused after so appears, has to make an application for grant of bail u/S.437 or 439 Cr.P.C. depending upon the nature of relief granted in the anticipatory bail. If the anticipatory bail order is conditional and limited leaving the discretion to be exercised by the Magistrate necessarily the Magistrate or the trial Court has to dispose of the application u/S.437/439, Cr.P.C. as the case may be on merits. The Supreme Court in Gurubaksh Singh's case has also laid down that no blanket order of bail can be granted u/S.438, Cr.P.C.

9. In the back drop of the object and purpose of the provisions of anticipatory bail, it does not really warrant to make the provision of S.438, Cr.P.C. applicable after filing of a final report and grant of anticipatory bail in such a situation is only a redundant effort. The accused who comes to know the issuance of NBW in a Court of law without the aid of S.438, Cr.P.C. has a relief of seeking recall of the N.B.W. under sub-sec.(2) of S.70 by showing proper reasons and simultaneously make a regular bail application. Sometimes it is cynically argued that the trial Court would not be liberal in granting bail in non-bailable offences when N.B.W. is issued and the voluntary surrender/appearance before the Court would only make the accused suffer detention for a day or two pending disposal of the bail application on merits. The provisions of anticipatory bail is not meant to curtail the lawful jurisdiction to the Magistrate or the trial Court. A bail application u/S.437/439, Cr.P.C. has to be disposed of by the competent Court in accordance with law. In that context, granting anticipatory bail in respect of N.B.W. issued by a Court of law would only serve to strengthen the cynical arguments. In that view of the matter, I find no merit in the contention of the Counsel for the petitioner that the provisions of S.438 could be invoked in respect of NBW issued by a Court of law after filing of charge sheet.

10. In the instant case, although the petitioner is not entitled to relief of anticipatory bail, I find from the impugned order that the trial Court has not properly appreciated the material placed by the petitioner along with the application u/S.317 of the Cr.P.C. The Court without considering the facts and the documentary material, rejected the request only on the ground that the other side opposes the application and issues N.B.W. Although the present petition is not filed by invoking the revisional or inherent powers, I deem it fit and proper in the circumstances to set aside the impugned order of issuance of warrant of arrest on merits. Accordingly, the order of issuance of N.B.W. against the petitioner is set aside. The Counsel for the petitioner however undertakes that he would keep the petitioner present before the Court on 14th August, 2002 voluntarily. On such production, the trial Court shall deal with the accused in accordance with law.

The petition is allowed in the above terms.

Petition allowed.