Bombay High Court
Mr.Chandra Kanjappa ... vs State Of Maharashtra & Anr. on 14 December, 2012
Bench: A.M. Thipsay
908-ABA-1207-2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL ANTICIPATORY BAIL APPLICATION NO.1207 OF 2012
MR.CHANDRA KANJAPPA KUCHCHIKURWE )...APPLICANT
V/s.
STATE OF MAHARASHTRA & ANR. )...RESPONDENTS
Ms.Leela D. Malu i/b. M/s.Leela D. Malu & Associates Advocate for the
Applicant.
Ms.R.M.Gadhvi APP for the State.
CORAM: ABHAY M. THIPSAY, J.
DATE : 14th DECEMBER, 2012.
ORAL ORDER :
Heard Ms.Leela D. Malu, the learned counsel for the
applicant, and Ms.R.M.Gadhavi, the learned APP for the State.
2 The applicant is sought to be arrested in C.R.No.187 of
2012, of Shahu Nagar Police Station, which is in respect of offences
punishable under Sections 324, 504, 506 of the Indian Penal Code
(IPC) read with Section 34 thereof. The applicant, apprehending
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arrest, approached the court of Sessions for anticipatory bail, but the
learned Sessions Judge rejected the said application observing that it
would be necessary to have the custodial interrogation of the applicant.
3 The learned counsel for the applicant submitted that all
the offences, with which the applicant is charged, are bailable. But still
an application for anticipatory bail was made as the police and
sometimes the subordinate courts also, treat the offence punishable
under Section 324 of the IPC, as "non-bailable". The learned counsel
submitted that, that the said offence is bailable was canvassed before
the learned Sessions Judge, who, however, in her order, did not deal
with this aspect of the matter at all. The learned counsel agrees that an
anticipatory bail application cannot lie in respect of bailable offences,
but urges that the correct legal position with respect to the offence
punishable under Section 324 of the IPC be clarified.
4 This court had an occasion to examine whether the offence
punishable under Section 324 of the IPC is "bailable" or "non-bailable"
even earlier.
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5 By the Code of Criminal Procedure (Amendment) Act of
2005, (Act No.25 of 2005), extensive amendments to the Code of
Criminal Procedure, 1973, (Code) were introduced. By Section 42 of
the said Act, the First Schedule to the Code was amended. By Clause
(f)(iii) thereof, the offence punishable under Section 324 of IPC was
made "non-bailable."
However, the said Act did not come in force, at once. Sub
section (2) of Section 1 of the said Act provided as follows :
(2) Save as otherwise provided in this Act, it
shall come into force on such date as the
Central Government may, by notification in the
Official Gazette appoint.
By the Code of Criminal Procedure (Amendment) amending Act 2006
(Act 25 of 2006), the aforesaid Amendment Act of 2005 came to be
amended. Section 2 of the 2006 Act (Act 25 of 2006), provided for
amendment of Section 1 of the 2005 Act (Act 25 of 2005). By the said
section, Sub section (2) of the 2005 Act was amended as follows :
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2. Amendment of Section 1 of Act 25 of 2005
- In the Code of Criminal Procedure
(Amendment) Act, 2005, in Section 1, in sub-
section (2), after the words "by notification in
the Official Gazette, appoint", the words "and
different dates may be appointed for different
provisions of this Act" shall be inserted.
After the amendment, Sub-section (2) of Section 1 of the
2005 Act (Act 25 of 2005) read as under :
(2) Save as otherwise provided in this Act, it
shall come into force on such date as the
Central Government may, by notification in the
Official Gazette appoint, and different dates
may be appointed for different provisions of
this Act.
8 Thus, provision was made for different dates being
appointed for bringing different provisions of the said 2005 Act in
force. Notifications bringing various provisions of the 2005 Act in force
have been issued from time to time.
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9 The question that arises is whether the provisions of Clause
(f)(iii) of Section 42 of the 2005 Act have been brought in force by
appointing a date therefor. It transpires that no notification giving
effect to the said amendment i.e. making the offence punishable under
Section 324 of the IPC "non-bailable" has been issued by the Central
Government, so far.
If no notification giving effect to the amendment in
question i.e. amendment to the Fifth Column in the entry relating to
"Section 324 of the IPC", has been issued till today, (which aspect is
undisputed) it means that the offence punishable under Section 324 of
the IPC, continues to be a "bailable" offence.
11 All the other offences allegedly committed by the applicant
are bailable.
12 Since the offences, with which the applicant is charged, are
bailable, the anticipatory bail application is not maintainable.
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13 The application is rejected with the aforesaid observations.
(ABHAY M. THIPSAY, J.)
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