2009 ALL MR (Cri) 2263
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.P. SONDURBALDOTA, J.
State Of Maharashtra Vs. Swaraj Shrikant Thackrey @ Raj Thackrey
Criminal Writ Petition No.2385 of 2008
16th June, 2009
Petitioner Counsel: Mr. ANIL DESAI,Ms. ROHINI SALIAN,Mr. U. B. KONDE-DESHMUKH
Respondent Counsel: Mr. ASHOK P. MUNDARGI,Mr. SAYAJI D. NANGRE,Mr. RANJIT M. PAWAR
(A) Criminal P.C. (1973), S.362 - Review or recalling of order - Bar under S.362 - Magistrate not empowered to review or recall his own earlier order. (Para 14)
(B) Criminal P.C. (1973), Ss.267, 276 - Transfer warrant - Can be addressed by one Magistrate to another Magistrate - If the transfer warrant is to be taken only to the concerned Jailor even though the accused is being produced before Court under whose custody he is, the same would lead to time consuming and cumbersome, procedure - Held, the procedural law is meant to further the ends of justice and not to delay or frustrate the same. 2000 Cri.L.J. 959 and 1995 Cri.L.J. 3505 - Rel. on. (Para 17)
(C) Criminal P.C. (1973), Ss.267, 276, 436 - Test of arrest - Held, the test of arrest is whether the person is under the control of the investigating agency or the Court or whether he is a free man to walk out of the Court at his free will - If the person is under the control of either the Court or investigating agency, he must be considered to have been under arrest. (Para 19)
State of Maharashtra Vs. Yadav Kohachade, 2000 Cri.L.J. 959 [Para 17]
Ranjeet Singh Vs. State of Uttar Pradesh, 1995 Cri.L.J. 3505 [Para 17]
C. Natesan Vs. State of Tamil Nadu, 1999 Cri.L.J. 1382 [Para 17]
Roshan Beevi Vs. Joint Secretary of Tamil Nadu, 1984 Cri.L.J. 13418
State of Haryana Vs. Dinesh Kumar, (2008)3 SCC 222 [Para 18]
Niranjan Singh Vs. Prabhakar Rajaram Kharote, (1980)2 SCC 559 : AIR 1980 SC 785 [Para 18]
JUDGMENT:- This petition is filed by the State under Article 227 of the Constitution of India and under Section 482, Cr.P.C. to challenge correctness and legality of the order dated 22nd October, 2008 passed by the learned Additional Sessions Judge, Kalyan in Criminal Anticipatory Bail Application No.640 of 2008 filed by the respondent and the order dated 22nd October, 2008 passed by the Judicial Magistrate First Class, 3rd Court, Kalyan on the application by the petitioner for transfer warrant in respect of the respondent.
On 19th October, 2008 the Railway Recruitment Board was conducting examination for the post of Assistant Station Master and Clerk at 67 examination centres in the State of Maharashtra. In all, 16,000 candidates from all over the country were to appear for the examination. Tilak Vidyamandir, Dombivli (East), District-Thane was one of the examination centres. The members of Maharashtra Nav Nirman Sena, a political party, gathered outside the school agitating against the participation in the examination by non-Maharashtrians. They shouted slogans against non-Maharashtrian candidates, restrained them from entering the premises of the school and started beating them. They tore the hall-tickets and certificates of the candidates thereby scuttling the process of recruitment examination. After the incident, Dombivli Police Station registered a crime vide C.R.No.-I-257/2008 (Dombivli case for short) under Sections 109, 143, 147, 149, 188, 183, 153(a), 153(b) and 343, IPC read with Section 37(iii) and 135 of Bombay Police Act and Section 7 of Criminal Law Amendment initially against the miscreants and later against the respondent contending that the respondent being the President of Maharashtra Nav Nirman Sena had instigated and provoked the members of his party to create a law and order problem at the examination center. There are two more cases registered against the respondent, they being C.R.No.I-264 of 2008 with Kherwadi Police Station and C.R.No.164 of 2008 registered with Kalyan Railway Police (Kalyan Railway case for short). Both the complaints are for identical offences as in the complaint registered with Dombivli Police station.
3. The respondent was arrested at Ratnagiri and produced before the court of 32nd Metropolitan Magistrate, Bandra on 21st October, 2008 in C.R.No.-I-264/2008 registered with Kherwadi Police Station. The court ordered him to be released on bail in that case. However, pursuant to the transfer warrant issued by the learned Judicial Magistrate First Class, 3rd Court, Kalyan his custody was transferred to Dombivli Police Station in connection with Dombivli case. On the same day, Kalyan Railway Police had also obtained a transfer warrant from Judicial Magistrate First Class, Railway Court Kalyan against the respondent as he was required in the Kalyan Railway case.
4. On 22nd October, 2008 at about 2.30 p.m. the respondent was produced before the learned Judicial Magistrate First Class, 3rd Court, Kalyan when the Investigating Officer, filed an application requesting for grant of police custody of the respondent. The application was rejected and the respondent was remanded to judicial custody. Immediately, thereafter the Investigating Officer in Kalyan Railway case presented the transfer warrant issued by the Judicial Magistrate First Class, Railway Court, Kalyan. The Court passed a handwritten order on the application Issue transfer warrant and signed the same. Thereafter, the Judicial Clerk of the Court endorsed on the application that the custody of the respondent had been received by the Investigating Officer from Kalyan Railway Court and obtained his signature below the endorsement.
5. Since, the respondent was remanded to judicial custody in the Dombivli case, an application for bail was moved on his behalf immediately. In the midst of his submissions, the learned counsel for the respondent sought permission of the court to obtain signature of the respondent on a document. The court ascertained from the respondent about correctness of the contents of the document signed by him and countersigned it in verification. The contents however were not revealed to the State. It later turned out that the document was an affidavit in the application for anticipatory bail presented to the Additional Sessions Judge, Kalyan presiding over his court in the adjoining building. The application for bail moved on behalf of the respondent was then heard and allowed. Thereafter, the learned Advocate for the respondent requested the court that the matter be kept back for some time as he was trying for an interim order in the application for anticipatory bail. He assured that copy of the interim order would be placed on record within a short time. The learned APP objected submitting that an oral statement as regards passing of an interim order of bail was not proper. However, the learned Magistrate was pleased to keep the matter back. After some time, the learned Advocate for the respondent simply filed a purshis stating that an interim anticipatory bail was granted to the respondent till 24th October, 2008 on furnishing surety in the sum of Rs.15,000/-. On seeing the purshis, the learned Magistrate endorsed further order on the transfer warrant rejecting the same in view of the interim anticipatory bail granted to the respondent. He held that though order for handing over custody was passed, custody was not yet handed over to the Railway Police and that the order was passed due to mistake of concerned clerk.
6. The application for anticipatory bail bearing No.640 of 2008 was served upon the State on 24th October, 2008 at about 11.30 a.m. Therefore, on that day the State sought an adjournment to file reply. It also requested that the respondent be directed to attend Kalyan Railway Police Station as and when required by the Investigating Officer as required under Section 438(2)(i), Cr.P.C.and that the respondent be directed to remain present in the court on the date of hearing of the application for anticipatory bail as required by Section 438(4), Cr.P.C. (Maharashtra Amendment Act, 1993). The application for the two directions was opposed by the respondent on the ground of the possibility of law and order problem and inconvenience to the other litigants. The learned Additional Sessions Judge granted the first direction. As regards the second direction, he passed an order that decision in respect thereof will be taken after going through the reply of the State and posted the application to 11th November, 2008.
7. Being aggrieved by the order on the transfer warrant and the interim anticipatory bail, on 10th November 2008, the State filed the present petition contending inter-alia that the second order passed by the learned Magistrate on the transfer warrant is illegal as it is without authority and jurisdiction. It amounts to reviewing the earlier order and recalling the same. As regards the interim order of anticipatory bail, it is contended that it is an ex-parte order without notice to the State. Further, the directions contained in the order are contradictory to each other. On the one hand, the order grants interim anticipatory bail and on the other, stays the transfer warrant. The effect of the order is that the police have no means to arrest the respondent and release him on bail.
8. The above averments of facts made in the petition are not disputed by the respondent except for the point of time at which the Investigating Officer in Kalyan Railway Case entered the witness box and presented the transfer warrant. According, to the respondent he had presented the transfer warrant after the respondent was ordered to be released on bail in Dombivli case at about 4.45 p.m. At that time, the advocate for the respondent requested that the matter be kept back. Whereas, according to the State, it was presented at about 3.40 p.m. after the respondent was remanded to judicial custody.
9. There is one more controversy raised in the petition which needs to be mentioned here. It is alleged in the petition, that on 24th October, 2008 the respondent got served a copy of typed application for interim bail in Criminal Bail Application No.640 of 2008. A zerox copy of the same is annexed at Exhibit 'D' to the petition. The State then applied for certified copies of the proceeding and found that apart from the typed copy, one more handwritten application was on record. No copy of the handwritten application was served upon the State. Zerox of certified copy of the handwritten application is annexed at Exhibit-I to the petition. Mr. Amit Desai, the learned Senior Counsel appearing for the State submits that it is strange that there are two interim applications on file without there being any explanation for the same. Mr. A. P. Mundargi, the learned Senior Counsel for the respondent seeks to explain that on the relevant date because of the high profile of the respondent, the court was flooded with people. There was also apprehension of law and order problem. Since, there were more than one proceeding filed against the respondent, separate teams of lawyers were working simultaneously to bail him out. In that melee, there was no time to get the application for bail typed. Therefore the application was written in hand and filed urgently. Mr. Mundargi states that the handwritten application is the main application and the typed application is the interim application. In view of the controversy raised, the records and proceedings in Criminal Bail Application No.640 of 2008 from the court of Additional District and Sessions Judge, Kalyan were called. The record reveals that Exhibit '1' in the main application for bail which is a typed application and Exhibit '3' is the typed application for interim bail, both having been signed by Advocate Shirodkar. Exhibit '4' is the affidavit of the respondent which is also typed. This affidavit was affirmed in the court. Exhibit '5' is another application for interim bail which is handwritten and signed by Advocate Modak. The application at Exhibit '5' is not titled as an interim application but the unnumbered para (3) for prayers specifies that it is an interim application. In the circumstances, I find no substance in the explanation offered by Mr. Mundargi. There is no other explanation forthcoming for the second application. Apparently, the learned Sessions Judge was also aware of filing of two applications as the impugned order passed by him is a common order to Exhibit '3' and Exhibit '5'. Perusal of these applications shows that though the language and contents of the two are different, there is no change in the material contents including omission of material facts. Therefore, in my opinion, no significance need to be attached to it. Apparently, it is nothing but overzealousness on the part of the advocates engaged by the respondent in getting him released on bail. Nonetheless, it must be observed that the learned Sessions Judge failed in his duty of being vigilant as regards the records of the proceedings and passing appropriate order on the second application. The conduct on the part of the respondent in not serving all the applications upon the State, must also be deprecated.
10. This brings us to the main controversy in the petition. Before touching upon the legal submissions, it is necessary to sort out the single disputed fact, as it would have some bearing on the legal submissions. The State claims that the Investigating Officer in Kalyan Railway case presented the transfer warrant to the learned Magistrate during the interegnum of grant of judicial custody in Dombivli case and the application for bail in that case. The respondent, on the other hand contends that the transfer warrant was presented after the order of grant of bail when the court was requested to keep the matter back to await for the order of interim anticipatory bail in Kalyan Railway case.
“Issued transfer warrant”
“Vide pursis filed by accused, it is submitted that anticipatory bail application of accused is allowed and interim bail is granted. The custody was not handed over to railway police but only order was passed. Hence, the above order is passed due to mistake of concerned clerk and due to interim anticipatory bail, this application is rejected.
At the bottom of the application is an endorsement in Marathi language to the effect that "Today on 22nd October, 2008 custody of accused by name Swaraj Shrikant Thakare was received from Dombivli Police Station C.R.No.I-257/2008 by us directly through the court." This endorsement is signed by Senior P.I. Mr. A. M. Jadhav from Kalyan Railway Police Station.
12. It is obvious from the above two orders and the endorsement of receipt of custody by the Investigating Officer that the transfer warrant was presented at the time as contended by the State. Had the warrant been presented after the order of bail in the Dombivli case as contended by the respondent, the first order and the endorsement of receipt of custody would not have been made, because immediately after the order of bail the court was requested to keep the matter back to await the order of interim anticipatory bail. Therefore, the court would have simply kept the application back without passing any order thereon. However, the fact is that there is an order passed allowing the transfer warrant and there is an endorsement of handing over of custody. It cannot even be said that the endorsement may have been made subsequently as is sought to be suggested by the second order. If that was so, the learned Magistrate would have so recorded in the second order. Instead, he has merely treated it as mistake of the clerk without specifying the nature of mistake. It appears that after the first order was passed the court clerk completed the further formalities, while the application for bail was being heard. Ironically, efficiency of the clerk is treated as his mistake. Considering the facts of the case, I have no doubt in my mind that the application for transfer warrant was presented at the time as contended by the State, the same was allowed and the endorsement of handing over custody was made. The effect of endorsement will be considered later while dealing with the legal submissions advanced by both the sides.
(i) Whether the second order passed by the learned Magistrate is bad for want of authority/jurisdiction.
(ii) Whether with the endorsement of receipt of custody, execution of transfer warrant can be said to be complete.
(iii) In case of execution of the transfer warrant, whether there could be an order of anticipatory bail for the respondent.
(iv) Whether the Sessions Court while granting the order of anticipatory bail could pass order of stay of the transfer warrant.
14. Mr. Desai submits that the learned Magistrate initially granted the application for transfer warrant but subsequently reversed it by the second order. Criminal Procedure Cod e does not provide for power of review. Further, its Section 362 specifically bars the court from altering its judgment or final order with exception of two circumstances. The second order being in the nature of review was clearly without authority and jurisdiction. Section 362, Cr.P.C. reads as follows :
"S.362. Court not to alter judgment - Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall after or review the same except to correct a clerical or arithmetical error."
Mr. Mundargi, submits per contra that the restriction under Section 362 is not attracted in the instant case as the order in question is only an order of movement. In the considered opinion of this court, it will be difficult to draw any such distinction. Because, the only application before the learned Magistrate was the application of transfer warrant. That came to be disposed off finally by the first order. With that, the court became functus-officio as far as that application is concerned and the bar under Section 362, Cr.P.C. came in force. There is no other provision in the Criminal Procedure Code empowering a Magistrate to review or recall his own earlier order. Further, there was not even any application before him to reconsider the order. The court altered the order on its own. The learned Magistrate was obviously aware of the restriction on his powers as he has tried to fit the order within the parameters of Section 362, Cr.P.C. by saying that order was passed due to clerical mistake. There is no elaboration of the nature of the clerical mistake. In the circumstances, it must be held that the second order passed by the learned Magistrate is illegal and liable to be set aside.
15. There is one more reason why the second order cannot be sustained. It is in contravention of the interim order passed by the higher court i.e. Court of Sessions. The interim order passed by the Court of Sessions was not limited to the order of interim anticipatory bail. It also stayed the transfer warrant. The learned Magistrate passed his second order solely based on the precipe filed by the advocates for the respondent, which precipe was not accompanied by copy of the interim order. As a consequence, the learned Magistrate by his second order rejected the transfer warrant despite stay. Actually, judicial discipline required that he insisted for, if not certified, atleast an ordinary copy of the order. Whatever be the profile of the litigant before the court or howmuchsoever be the pressure of the situation the court should not have slackened its judicial discipline. Unfortunately, the advocates for the respondent also did not inform him about the order of stay of transfer warrant. This resulted into passing of an order in defiance of the order of the higher court.
16. Mr. Desai, next submits that after passing of the first order on the application for custody of the respondent pursuant to the transfer warrant once there was an endorsement of receipt of custody made by the Investigating Officer, the execution of the transfer warrant was complete. The respondent was no more free to walk out of the court room. He was in custody of Kalyan Railway Police. As against this, Mr. Mundargi has two submissions to make. According to him, the transfer warrant is not legal. It is no warrant at all and is non-est. Mr. Mundargi draws attention to Chapter XXII of Cr.P.C. which relates to attendance of persons confined or detained in prisons and Section 276 therein which empowers the court to require attendance of prisoners. Mr. Mundargi submits that on plain reading of Section 267 it can be seen that an order thereunder can be made only if a person confined or detained in any prison is required by a court for answering a charge to an offence. His attendance cannot be required for the purposes of either remand or investigation. Mr. Mundargi refers to Form-36 under Schedule-II to Cr.P.C. for the warrant under Section 362 and submits that the warrant is addressed only to a Jailor. There cannot be a request from one Magistrate to another Magistrate as the prisoner is supposed to be in custody of Jailor.
17. The contentions raised by Mr. Mundargi need not be dilated upon at length as the same have been directly dealt with and decided by our High Court in State of Maharashtra Vs. Yadav Kohachade reported in 2000 Cri.L.J. page 959. In that case, the transfer warrant was served directly upon the Superintendent Central Prison, Nagpur who was the officer-incharge of the prison where the accused was held in judicial custody pending investigation. Our High Court held that it is always better for the prosecution after obtaining an order under Section 267, Cr.P.C. to approach the court under whose orders a convict or accused is confined or detained in prison for seeking permission of the concerned court on the basis, that custody of the accused is required for the purposes of proceedings pending before a court of competent jurisdiction.This is precisely the procedure followed by the Investigating Officer in the instant case. With the transfer warrant issued by Kalyan Railway court, he approached the Kalyan court for its permission for custody of the respondent. Therefore, it cannot be said that the transfer warrant could not have been addressed by one Magistrate to another Magistrate. In any case, as has been rightly submitted by Mr. Desai, if the transfer warrant is to be taken only to the concerned Jailor even though the accused is being produced before court under whose custody he is, the same would lead to time consuming and cumbersome procedure. He submits that if at the time of presentation of the transfer warrant, the accused is in prison, the warrant would be presented to the Jailor. However, if he is in court, the warrant can be presented to the court, so that further steps are taken without any loss of time. It is to be remembered here that the procedural law is meant to further the ends of justice and not to delay or frustrate the same. The submission advanced by Mr. Mundargi is hyper-technical and will not advance the ends of justice. The submission of Mr.Mundargi that an order under Section 267, Cr.P.C. could not have been passed by the learned Magistrate unless the respondent was required for answering to a charge of an offence or for the purpose of any proceedings against him or if he is required to be examined as a witness, also cannot be accepted. Identical submission was made before our High Court in the above cited case and negatived by it. As per the provision, production of the prisoner can be required for two purposes (i) for answering to the charge of an offence and (ii) for the purpose of any proceedings against him. Our High Court has held that the term proceedings in the second purpose would mean and include an action or prosecution and sometimes as meaning a step in an action and therefore, it includes all steps taken in furtherance of prosecution i.e. arrest, remand, interrogation and investigation. Similar view has been taken by Allahabad High Court in the case of Ranjeet Singh Vs. State of Uttar Pradesh reported in 1995 Cri.L.J. page 3505 wherein it is held that The first contention of the learned counsel for the applicant meets with rejection without much difficulty. The words, or for the purpose of any proceedings against him occurring in Section 267 (1)(a) are compendious and include proceedings encompassing all stages and have in their fold remand proceedings and even proceedings of an investigation. In the present case, the presence of the applicant is required for the purposes of remand which may even include police remand or for their purposes of the investigation. I am in respectful agreement with the view held by our High Court and Allahabad High Court. It may also be mentioned here that similar view has been expressed also by Madras High Court in its decision in the case of C. Natesan Vs. State of Tamil Nadu & Ors. reported in 1999 Cri.L.J. page 1382.
18. The second contention of Mr. Mundargi is that even if the transfer warrant is held to be legal, it cannot be said that on mere passing of the order on the requisition and the endorsement thereon of receipt of custody by the Investigating Officer, custody of the respondent can be said to have been transferred to another court when the respondent was yet to be produced in remand before that court and an order of remand passed. He further submits that event if pursuant to the transfer warrant a person is taken in custody, he cannot be said to have been arrested until he is produced before the competent court. Mr.Mundargi relies upon a decision of Full Bench of Madras High Court in the case of Roshan Beevi Vs. Joint Secretary of Tamil Nadu reported in 1984 Cri.L.J. page 134 to draw distinction between the terms "custody" and "arrest. The proceedings before the Madras High Court arose out of the detention orders passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The court was required to consider whether a person who is taken by the Customs Officer either for the purpose of enquiry or interrogation or investigation can be held to have come in custody of the Customs Officer and can be deemed to have been arrested from the moment he was taken in custody. The court answered the question in negative for number of reasons, one of them being that the primary job of the customs officer was due realisation of the customs duties and not with detection and punishment to crimes committed by persons evading customs duty. As regards the meaning of the term arrest Madras High Court held as under :
"The 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. The essential elements to constitute an arrest 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 understood by the person arrested".
It further observed that the terms "custody" and "arrest" are not synonymous and that in every arrest there is custody but not vice-versa. Relying on this decision, Mr. Mundargi submits that even if it is to be considered that the custody stood handed over to the Kalyan Railway police, the respondent cannot be said to have been arrested. Mr. Desai points out that the above decision cited by Mr. Mundargi has been considered and explained by the Apex Court in its latest decision in State of Haryana & Others Vs. Dinesh Kumar reported in (2008)3 S.C.C. page 222. In the proceedings before the Apex Court, one of the appellants had been granted bail without having been actually arrested and the High Court had held that though the appellant had obtained bail in connection with the criminal case against him, he had never been arrested. The other appellant before the Apex Court had not surrendered to the police but had appeared before the Magistrate with his lawyer of his own volition and was immediately granted bail. Therefore, it was contended by him that at no point of time, he was taken into custody or arrested. The above decision of Madras High Court in Roshan Beevi's case was cited before the Apex Court to distinguish the terms "arrest" and "custody". The Apex Court held that the interpretation of "arrest" and "custody" referred to in Roshan Beevi's case may be relevant in the context of Sections 106 and 107 of the Customs Act where summons in respect of an enquiry may amount to custody but not to arrest. Such custody could subsequently materialise into arrest. However, the position is different, so far as proceedings in the court are concerned in relation to an enquiry into offences under the penal code and other criminal enactments. The Apex Court then reiterated its decision of Full Bench in the case of Niranjan Singh & Another Vs. Prabhakar Rajaram Kharote reported in (1980)2 S.C.C. page 559 (AIR 1980 Supreme Court page 785) and held that in its view the law relating to concept of arrest or custody has been correctly stated in that decision. The relevant paras of the decision of Full Bench reproduced in the decision read as follows :
7. When a person is in custody, within the meaning of Section 439, Cr.P.C.? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the courts jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of a an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose.
8. Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court.
9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions." (emphasis in original)
19. It is thus seen that the test of arrest is whether the person is under the control of the investigating agency or the court or whether he is a free man to walk out of the court at his free will. If the person is under the control of either the court or the investigating agency, he must be considered to have been under arrest. In the instant case, the first order on the transfer warrant having been passed before the respondent was released on bail, he continued to be under the duress of the investigating agency. He was not a free man to walk out of the court at his free will. Therefore, he must be held to be under arrest. Thereafter, however if the Investigating Officer needed his custody for investigation, he must be produced before the concerned court with an application for custody. Actually, this was the very procedure adopted by the Investigating Officer in Dombivli case. Apparently, the respondent wanted to avoid the third remand proceedings and therefore the whole acrobatics.
20. This brings us to the third question. In view of the discussion hereinabove, the answer to the third question is straight and obvious. Since, the respondent is held to have been under arrest before the application for anticipatory bail, he could not have invoked the provision of Section 438 which is for grant of bail to a person apprehending arrest. The application for anticipatory bail not being maintainable, the order of interim anticipatory bail cannot be sustained. The same is required to be set aside and the application for anticipatory bail rejected.
21. There is one more objection raised by Mr. Desai to the order of interim anticipatory bail. He submits that the order is passed ex-parte without notice to the State. Mr. Mundargi, submits in reply that there is no provision or mandate of law that an order of anticipatory bail cannot be granted without notice to the prosecution. Therefore, the order cannot be said to be an illegal order, according to him, at the highest it would be a question of fair play, a question more of propriety than legality. He also submits that if issuance of notice is not a legal requirement than the question of sending prior notice to the prosecution would be a part of strategy, whatever adopted by the lawyer and no fault can be found with the same. Undoubtedly, there is no provision under Criminal Procedure Code making it mandatory upon the applicant to serve notice of the application for anticipatory bail upon the State. However, at the same time as has been put by Mr. Mundargi it is a question of propriety and fair play. In the instant case, it must be said that there was failure of maintenance of propriety and fair play. As has been pointed out by Mr.Desai, the application for anticipatory bail was moved simultaneous to the application for bail in the Dombivli case. Infact, the arguments on the bail application were interrupted by the advocate for the respondent for getting his affidavit affirmed for the purpose of filing it alongwith the application for anticipatory bail. The court to which the application was being presented was sitting in the building adjoining to the building where the proceedings of remand and bail were going on. In that circumstance, the notice could have been conveniently served upon the prosecution. For the purpose of instructions the Investigating Officer in the Kalyan Railway case in which the anticipatory bail was being sought was also present in the court with the requisition for transfer warrant. In these circumstances, there was no reason for not serving notice upon the prosecution. Had the notice been served, the prosecution would have brought to the notice of the learned Sessions Judge that there was already an order passed on the requisition for transfer warrant of allowing the same. Apparently, the learned Sessions Judge also did not find it necessary before passing the order of stay to verify whether the application was still pending.
22. Lastly, the Sessions Judge, strangely while granting the order of anticipatory bail also passed an order of stay of transfer warrant. Such an order goes beyond his powers under Section 438, Cr.P.C. Besides, the two orders are contradictory to each other. The application for anticipatory bail was moved in view of apprehension of arrest under the transfer warrant.If the order of anticipatory bail is to be effective, there was no point in staying the transfer warrant.
23. Since it has been held that on execution of the transfer warrant, the respondent was under the control of the Investigating Officer, Kalyan Railway case and as such under arrest and since the interim order of anticipatory bail is set aside, further directions are required to be given so that the law can take its course. Ordinarily the further directions in the case would have been to ask the respondent to surrender himself to Kalyan Railway police. However, considering the elapse of time since passing of the impugned orders and pendency of the present petition, in my considered opinion, it will be more appropriate and convenient to direct the respondent to remain present in the concerned court i.e. Kalyan Railway Court. It is to be remembered here that Mr. Desai had commenced his arguments on the petition, by saying that what is more important for the State is to have a correct position in law laid down than to seek any individual action qua the respondent. It is also obvious that with the passage of time since 21st October, 2008, hardly any purpose will be served by having custody of the respondent. Hence, the order.
O R D E R
(i) The petition is allowed.
(ii) The impugned order dated 22nd October, 2008 passed by the Judicial Magistrate First Class, 3rd Court, Kalyan recalling the executed transfer warrant and the order dated 22nd October, 2008 of the Additional Sessions Judge granting interim anticipatory bail in Cri.Anticipatory Bail Application No.640 of 2008 are hereby set aside.
(iii) Criminal Anticipatory Bail Application No.640 of 2008 is dismissed.
(iv) The respondent is directed to remain present before the Kalyan Railway court on 29th June, 2009 at 11.00 a.m.
(v) At the request of Mr. Mundargi, it is directed that the concerned officer from Kalyan Railway Police Station shall remain present in the Kalyan Railway Court on 29th June, 2009 at 11.00 a.m.