Misc. Crl. Case No.1387 of 2004

14th May, 2004

Petitioner Counsel: A. S. RATHORE
Respondent Counsel: Miss. SUDHA SHRIVASTAVA

Cases Cited:
Gudikanti Narasimhulu Vs. Public Prosecutor, High Court of A.P., AIR 1978 SC 429 [Para PARA8]
Baboo Singh, AIR 1978 SC 527 [Para PARA9]
Imratlal Vishwakarma Vs. State of M.P., 1996 JLJ 642 [Para PARA9]
Gurbaksh Singh Sibbia Vs. State of Punjab, AIR 1980 SC 1632 [Para PARA10]

JUDGMENT

-Applicant is seeking anticipatory bail under S.438 of the Code of Criminal Procedure, 1973, in a private complaint case No.40/2003, pending in the Court of Judicial Magistrate First Class, Vijaypur, district Sheopure, for the offences under Ss.420, 467, 468, 471 and 120-B of Indian Penal Code. Earlier M.Cr.C. No.2795/03 was disposed of with a direction to the applicant to appear before the trial Court and to furnish bail, as he was summoned through bailable warrant.

2. The submission of the learned counsel for the applicant is that the offence under S.467, I.P.C. though is triable by Magistrate First Class but is a non-cognizable and non-bailable offence and punishment of imprisonment of life or imprisonment of ten years and fine has been prescribed, therefore, the Magistrate First Class is not having jurisdiction to grant the bail in cases where sentence of imprisonment for life has been prescribed for a particular offence and if the applicant will appear even after issue of bailable warrant, he shall be arrested and shall be committed to prison. Additional Sessions Judge, Sabalgarh has already rejected his anticipatory bail application.

3. It is further contended that the applicant is a Patwari and respondent No.2-complainant has filed a private complaint against this applicant along with two others on the ground that the land bearing Survey No.104, admeasuring 5 bighas and 14 biswas, situated at Patwari Halka No.20, village Barakalan, Tehsil Vijaypur, District Sheopure has been recorded as a Government land reserved for Government pond. Every year Government is auctioning this land and from 1997 complainant is taking the land in auction and cultivating but in the meantime the applicant and Naib Tehsildar in connivance have granted Patta over this land to Adjuddibai w/o Ramratan. The Naib Tehsildar was not having any right to allot the Patta of the said land, as he was functioning as In-charge Tehsildar on that day. He has allotted this land with the connivance of the applicant who is Patwari and the applicant has not supplied copy of the Patta or the allotment letter or the entries made in the revenue record to respondent No.2, therefore, they have committed offence of cheating and dishonestly inducing delivery of property causing wrongful loss to the State and it is a case of forgery of valuable security for the purpose of cheating.

4. Learned Judicial Magistrate has registered a private complaint and firstly directed issuance of bailable warrant and thereafter directed to issue warrant of arrest against the applicant. It was further submitted that this Court has already granted anticipatory bail to Yashendra Singh Chouhan, who is the Naib Tehsildar and Smt. Ajuddi Bai, who is the allottee of the land. It is further contended that prima facie no offence under Sections 420, 467, 468 and 471 with 120-B, I.P.C. for cheating or dishonestly inducing the delivery of property or causing wrongful loss to the complainant or regarding forgery of valuable security or will or forgery for the purpose of cheating or criminal conspiracy is made out against the applicant. He has not granted any Patta. If he has made some entries in the revenue record, they have been made on the basis of the order passed by Naib Tehslidar. It is the Government land and complainant is not having any interest and is also not having any locus standi to file the criminal complaint, as no offence is committed against the complainant.

5. Miss Sudha Shrivastava, learned panel lawyer, appearing for the respondent State opposed this application on the ground that this is second application for anticipatory bail, therefore, it is not maintainable and liable to be dismissed.

6. Copy of the criminal complaint has been produced on record. In the complaint, allegation of criminal conspiracy in granting Patta has been levied against the applicant and it has been stated that the Naib Tehslidar with the connivance of the applicant has granted Patta in favour of Ajuddibai and applicant made entries in the revenue record and has not supplied copy of the said record to the complainant.

7. The legislative mandate of S.438, Cr. P.C. for grant of anticipatory bail for a person, who is apprehending his arrest, has already been mentioned in the section itself. In proper cases on judicial scrutiny and after exercising judicial discretion the Court may grant anticipatory bail and impose appropriate conditions as laid down under S.438 of the Code of Criminal Procedure.

8. Though at the stage of pre-arrest and pre-trial bail the matter may be of judicial discretion but in view of the decision in the case of Gudikanti Narasimhulu Vs. Public Prosecutor, High Court of A.P. (AIR 1978 SC 429), the Court is required to consider the nature of charge, nature of prima facie evidence and material collected during investigation or enquiry and punishment to which the party may be liable if convicted. Nature of charge is vital factor and evidence is pertinent. The Court may also consider whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. The legal principle and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the complainant or otherwise polluting the process of Justice. Though it is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad and criminal record, particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, criminological history may also be considered and the criminal record of applicant is, therefore, not an exercise in irrelevance. The deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice, to the individual involved and society affected. The Judge is also required to consider that mechanical detention should be demoted and public justice is to be promoted. The period already spent in prison is to be kept in mind and the bail is not to be withheld as a punishment, but the requirements as to bail are to secure the attendance of the prisoner at trial.

9. As regards the objection raised by learned Panel Lawyer for the State that second application for grant of anticipatory bail is not maintainable under the law, in fact this contention has already been negatived by the Supreme Court in the case of Baboo Singh (AIR 1978 SC 527) and Division Bench of this High Court in the case of Imratlal Vishwakarma Vs. State of M.P., reported in 1996 JLJ 642. This Court after considering the various decisions has held that the second application for anticipatory bail under S.438, Cr. P.C. is maintainable. The second application filed under S.438, Cr. P.C. has to be decided on its merits even if earlier application was also dismissed on merits. No such fetters can be put or applied on the second petition that it can only be considered when it was withdrawn or was rejected having been not pressed. It shall, however, be open for the Court to reject it even summarily on the ground that the said second petition is nothing but a repetition of the earlier petition and no new ground has been disclosed in the second petition. It was considered that in Baboo Singh's case (supra), the Supreme Court was considering a second application after one such application was earlier rejected. It was then ruled that an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, and further development. It was also held that the Court is not barred from its second consideration at a later stage and that an interim direction is not a conclusive adjudication and that an updated reconsideration is not overturning an earlier negation. Second application was entertained. It was considered that in view of the aforesaid dictum the second application for grant of anticipatory bail under S.438 was maintainable and it was held that the earlier rejection is not conclusive. The Court may consider the second bail application on account of subsequent events and developments.

10. In the case of Gurbaksh Singh Sibbia Vs. State of Punjab, reported in AIR 1980 SC 1632. Constitution Bench of the Apex Court has considered the distinction between the ordinary order of bail and order of anticipatory bail. The Apex Court has held that a blanket order of anticipatory bail should not generally be passed. A belief can be said to be founded on reasonable ground only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. It is necessary that specific events and facts must be disclosed by the applicant in order to enable the Court to Judge the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section. The Court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective and the power should not be exercised in a vacuum. The order should be limited to a short period until after filing of the F.I.R. In respect of the matter covered by the order and necessary conditions should be satisfied. The applicant must show that he has reason to believe that he may be arrested for a non-bailable offence. Supreme Court has clearly observed that anticipatory bail is a device to scure 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. The Court must apply its own mind to the question and decide whether a case has been made out for granting such relief or not.

11. From the aforesaid discussion and in view of the aforesaid decisions of the Apex Court as well as of the Division Bench of this High Court, it is clear that second application under S.438, Cr. P.C. is not barred and is tenable but the same has to be considered on the parameters laid down by the Apex Court as well as by the Division Bench of this Court.

12. Thus, considering the totality of the facts and circumstances of the case that the applicant was summoned initially through bailable warrant in a private complaint case and subsequently by a warrant of arrest and that the applicant is a Government servant and looking to the allegations in the private complaint and considering the aforesaid discussions without commenting on the merits of the case at this stage of pre-arrest bail, this application for grant of anticipatory bail under S.438, Cr. P.C. is allowed on the following conditions:-

"(I) that, the applicant shall appear before the Magistrate First Class, before whom the private complaint is pending, within a period of fifteen days and shall furnish bail for the amount as may be fixed by the Magistrate;

(ii) that, the applicant shall regularly appear before the Magistrate and co-operate in the quick disposal of the private complaint;

(iii) that, the applicant 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 on enquiry.

Petition allowed.