Delhi High Court
Deepak Anand vs State & Anr. on 9 October, 2018
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 9th October, 2018
+ CRL. M.C. 4221/2018 & Crl.M.A. 30384/2018
DEEPAK ANAND ..... Petitioner
Through: Petitioner in person.
versus
STATE & ANR. ..... Respondent
Through: Mr. Rahul Mehra, Standing
counsel with Mr. Ravi Nayak,
APP for State & Insp. V.K.P.S.
Yadav, PS Kotla Mubarakpur.
Mr.Vikas Pahwa, Sr. Adv. with
Mr. Gaurav Gupta, Mr. Mohd.
Ali Khan, Mr. Tushar Agarwal
& Mr. Shadman Siddiqui,
Advs. for R-2.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. On 17.01.2014, the wife of the second respondent was found
dead inside the bed room of suite no. 345 at Hotel Leela Palace, New
Delhi. The Station House Officer of police station Sarojini Nagar,
New Delhi registered first information report (FIR) no. 64/2015 on
06.01.2015 and took up investigation into offences punishable under
Sections 306 and 498A of Indian Penal Code, 1860 (IPC) in such
context. The police having carried out investigation submitted its
final report (charge-sheet) under Section 173 of the Code of Criminal
Procedure, 1973 (Cr.P.C.) in the court of Metropolitan Magistrate on
14.05.2018. The Magistrate is stated to have taken cognizance on the
said charge-sheet and issued summons to the second respondent in
exercise of the power vested in the said court by Section 204 Cr.P.C.,
statedly for the offence under Section 306 IPC.
2. Against the backdrop of above facts, the second respondent
moved an application (Bail application no. 873/2018) in the court of
sessions, praying for anticipatory bail under Section 438 Cr.P.C. The
said court, by its order dated 05.07.2018, granted the said prayer and
directed that in the event of he being arrested by the police or at the
instance of the Metropolitan Magistrate on his appearance before the
said court, he shall be released on bail subject to he furnishing bail
bonds in terms which have been specified and subject to conditions
that have been added including inhibition against leaving India
without prior permission of the concerned court.
3. The petitioner, a practicing advocate, having no connection
whatsoever with the afore-mentioned case, has approached this Court
by the present petition seeking cancellation of the aforesaid order of
anticipatory bail, invoking the inherent power and jurisdiction of this
Court under Section 439 (2) read with Section 482 Cr.P.C., his verbal
submissions being that as a vigilant citizen of this country he is
entitled to raise issue of impropriety on the part of the court of
sessions in granting such relief to the second accused against the
backdrop of summoning order that had been passed by the competent
court of criminal jurisdiction. Primarily, his argument is that the
power to grant anticipatory bail, can be exercised only in a case where
a person apprehends arrest by the police, the possibility of a person
summoned by the Magistrate's Court as accused being taken in
custody not being covered by such jurisdiction under Section 438
Cr.P.C.
4. The second respondent has entered appearance through counsel,
on his own. Both he and the respondent State question the locus
standi of the petitioner to bring the petition at hand, it also being
argued that the exercise of the power to grant anticipatory bail by the
court of sessions through the impugned order is covered by decisions,
inter alia, of the Supreme Court.
5. Having heard all sides at length and having gone through the
relevant law on the subject, even if the issue of locus standi of the
petitioner were to be kept aside, this Court finds no merit in the
submissions of the petitioner attributing impropriety to the court of
sessions in grant of relief to the second respondent by order dated
05.07.2018.
6. The question as to whether the court vested with the power to
grant anticipatory bail in terms of Section 438 Cr.P.C. can exercise
such jurisdiction against the backdrop of order of the court of
cognizance issuing process is not res integra. A division bench of this
court, as far back as in November, 1996 by its judgment reported as
P.V. Narsimha Rao & Anr. vs. State (CBI) 1997 SCC Online Delhi 19
had answered a reference on precisely the same question of law
contrary to what is being canvassed by the petitioner. Pertinent to
note that in that case also the petitioner had come up to this Court for
grant of anticipatory bail in the wake of summons issued by court of
Magistrate against him. The division bench, answering the reference
made by a learned single judge had, inter alia, observed that a person
against whom accusations of cognizable and non-bailable offence
have been made may apprehend arrest by the police or arrest even at
the hands of the court. It was noted that the language used in Section
438 Cr.P.C. is clear and unambiguous namely "reason to believe that
he may be arrested on accusation". The court while considering the
prayer under Section 438 Cr.P.C. goes by the merits of the case and
not by the nature of order passed by the Magistrate choosing to
summon the accused through bailable or non-bailable warrant. It was
also noted that Section 438 (3) Cr.P.C. contemplates a situation where
the arrest may be apprehended at the instance of the court and, thus,
mandates that if such order of cognizance is passed and the Magistrate
decides that a warrant should be issued at his instance, such warrant
would have to be a bailable warrant in conformity with the direction of
the court under Section 438 (1) Cr.P.C.
7. The rulings of the Supreme Court in Bharat Chaudhary & Anr.
vs. State of Bihar & Anr. (2003) 8 SCC 77 and Ravindra Saxena vs.
State of Rajasthan (2010) 1 SCC 684 are sufficient to be quoted as
illustration of the law being settled contrary to what is being argued by
the petitioner.
8. The petition, thus, is found to be wholly devoid of substance.
The same and the application filed therewith are dismissed.
R.K.GAUBA, J.
OCTOBER 09, 2018/nk
