Mr. Tanaji Ramkrishna Honkalas ... vs State Of Maharashtra (Pydhonie ...
2001 Latest Caselaw 790 Bom

JUDGMENT

J.G. Chitre, J.

1. Mr. Mundargi placed reliance on the judgment of the Supreme Court in the matter of K.L. Verma v. State and Anr. , for substantiating his submissions while Mr. Vakil placed reliance on the judgment of Supreme Court in the matter of Salauddin Abdul samad Shaikh v. State of Maharashtra . A reference was also made by Mr. Mundargi and Mr. Vakil to the judgment of the Supreme Court in the matter of Gurbaksh Singh Sibbia etc. v. State of Punjab , Mr. Vakil made reference to the judgment of this Court Single Bench in the matter of Criminal Application No. 289 of 1998.

2. The point which has been agitated by Mr. Mundargi in this matter was that in view of the judgment of the Supreme Court in the matter of Verma's case (supra) and in view of the observations of the Supreme Court in the matter of Gurbaksh Singh Sibbia's case (supra), the applicants are entitled to get the benefit of directions in the nature of anticipatory bail which they were having till today by way of the order which was passed by this Court in the past. Mr. Mundargi submitted that the filing of the chargesheet against the applicant by the investigating agency does not take away the power and jurisdiction of this Court to hear this application seeking direction in the nature of anticipatory bail. He submitted that the applicants were enjoying the benefit of the directions in the nature of anticipatory bail by virtue of the order of this Court passed in the past before significant days.

3. Mr. Vakil submitted that if at all this Court is pleased to grant the directions in the nature of anticipatory bail, the said directions be limited to certain period so as to prevent the applicant to enjoy them for unlimited period at the cost of the interest of the prosecution.

4. There was a debate on the point whether the Sessions Court or the High Court can consider the application seeking for directions in the nature of anticipatory bail after filing of the charge-sheet by the prosecuting agency. Therefore though there appears to be no serious tussle between the rival parties on the point of granting of direction in the nature of anticipatory bail, for the purposes of clarifying this point which was agitated before this Court, this Court desires to express its opinion in the interest of justice.

4A. For adjudicating the debate over the point as mentioned above, it is necessary to reproduce Sub-section (3) of Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code" for convenience). Sub-section (3) of Section 438 of the Code provides that if such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared cither 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 be issued in the first instance against that person, he shall issue a boilable warrant in conformity with the direction of the Court under Sub-section (1). In this context, Sub-section (1) will have to be considered which speaks that when any person has reason to believe that he may be arrested on an accusation of having committed a nonbailable 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.

5. Provisions of Sub-sections (3) and (1) are to be read together and conjointly and if that is done, the point at debate stands answered squarely. Had there been intention in the mind of the Legislature to put a prohibition on the power of the High Court or the Sessions Court in entertaining the application made by such an accused after the charge-sheet has been filed, Sub-section (3) would not have spoken anything about the jurisdiction and power of such Courts which has issued a non-bailable warrant against the accused, who released him on bail in view of the directions which have been issued either by the High Court or the Sessions Court in view of provisions of Sub-section (1) of Section 438 of the Code. The words and phrases are used in the enacted provisions with meaning which they convey unless there are qualifying phrases and words used for the purposes of explaining the intention of the Legislature otherwise. Here the words are very clear and, therefore, they should be given the meaning which they convey.

6. In the matter of Gurbaksh Singh's case ((supra) it has been observed in the said judgment, by the Supreme Court that if an application for anticipatory bail is made to the High Court or the Court of Sessions, it should apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 as and when an occasion arises. Such a course will defeat the very object of Section 438. It further makes clear that filing of the First Information Report is a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest followed with a reasonable belief can be shown to exist even if a F.I.R. is not yet filed. The anticipatory bail can be granted even after a F.I.R. is filed so long as the applicant has not been arrested. The anticipatory bail can be granted to an accused who has not been arrested. In the said judgment, the Supreme Court has further pointed out in paragraph 38 whether the anticipatory bail for a limited period can be granted as a rule The Supreme Court has answered that it need not be so necessarily in all cases. It pointed out that normal rule should be not to limit the operation of the order in relation to a period of time. In the matter of K.L. Verma's case (supra), the Supreme Court clarified the intention of the Supreme Court in making the observations in Salauddin Abdulsamad Shaikh's case (supra). In K.L. Verma's case, the Supreme Court clarified as to what it meant to convey by making necessary observations. The Supreme Court observed in the said matter that if the circumstances of the case require, the High Court or the Sessions Court may indicate certain period for which the accused are to enjoy the direction in the nature of anticipatory bail as a concession granted to them but that need not be in all cases. It means that such criteria can be adopted in a fit case. The discretion to have the proper judgment would be of the High Court or the Sessions Court, as the case may be. It pointed out that normally the Trial Court need not be bypassed.

7. In the present matter when the application seeking for direction in the nature of anticipatory bail was filed, the charge-sheet was not filed but during the pendency of this application the charge-sheet came to be filed against the applicants and, therefore, question arose for debate as to what should be the appropriate order in this case, answering the demand of the situation. The applicants were already having the benefit of direction in the nature of anticipatory bail granted in their favour by this Court. There is nothing on record to show that the applicants are hardened criminals or they are having criminal antecedents. It is not the submission from the prosecution that if they are permitted to enjoy the benefit of the direction in the nature of anticipatory bail granted in their favour, they would abscond in all certainty.

8. Therefore after hearing the counsel appearing for the rival parties keeping in view the observations of the matter, and giving appropriate weightage to the directions in the nature of anticipatory bail passed in their favour by this Court previously, this Court hereby orders as follows:

The investigating agency or the Trial Court should not arrest the applicants till they move an application before the appropriate Sessions Court for the relief of seeking a regular bail in their favour qua the charge-sheet which has been filed against them in the Trial Court. They should not also be arrested till that application is decided finally by the concerned Sessions Court. However, a time limit is provided so as to make the applicants to spell out their intention of filing the application for seeking bail before the concerned Sessions Court within two weeks. The concerned Sessions Court is hereby directed to decide their application within two weeks, at the most, after giving a due notice to the prosecution and after giving necessary sufficient opportunity to both the petitioners and prosecution to submit their submissions. In no case, hearing of bail application should prolong and should be lingering in the said Sessions Court for more than a month. Till that period, the Trial Court should lay off the hands from taking any action against these applicants for arresting them. Same is the direction to the investigating agency for not arresting them till their application for bail stands finally decided by the concerned Sessions Court in accordance with the provisions of law. Till the moment the said bail application is decided by the appropriate Sessions Court, the applicants to furnish security to the extent of Rs. 5,000/- with one surety each. They shall not threaten, contact or induce any of the prosecution witnesses. They shall make themselves available for the purpose of interrogation, if necessary and required. They shall not leave India and the limits of Maharashtra State without permission of this Court.

It is made clear that this order has been passed for meeting the special situation which has been created by pendency of this application and filing of the charge-sheet by the investigating agency. Mr. Mundargi has not argued this application on merits nor has it been so argued by Mr. P.R. Vakil. This judgment should not act as a general rule except the interpretation of Section 438.

9. Parties to act on an ordinary copy of this order duly authenticated by the Private Secretary.