Punjab-Haryana High Court
Barkat Singh vs State Of Punjab on 17 November, 2022
101
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-51376-2022
Date of Decision: 17.11.2022
Barkat Singh ... Petitioner
Versus
State of Punjab ... Respondent
CORAM:-HON'BLE MR. JUSTICE ASHOK KUMAR VERMA
Present: Mr.Amit Arora, Advocate for the petitioner
Mr.Jaspal Singh Guru, AAG, Punjab
...
Notice of motion.
On the asking of this Court, Mr. Jaspal Singh Guru, AAG,
Punjab accepts notice.
The petitioner has approached this Court by filing this petition
under Section 438 of the Cr.P.C. for grant of anticipatory bail in FIR
No.0367 dated 28.9.2022 under Section 379 of the IPC and Section 21 (1)
of the Mines and Minerals (Development and Regulation) Act, 1957
registered at Police Station Goindwal Sahib, District Tarn Taran.
As per prosecution story, FIR was registered at the instance of
ASI Manjeet Singh on the basis of secret information that the petitioner is
involved in illegal mining with the use of tractor and trolley. The petitioner
alongwith other accused was filling the sand in two trolleys and on seeing
the police party, he fled away from the spot and tractor trolley has been
taken into possession.
Learned counsel for the petitioner, inter alia, contends that as
per the alleged story of the prosecution at the time of alleged raid the
petitioner and other co-accused persons ran away from the spot and the
recovery of tractor trolley was made from the spot. It is highly
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unbelievable that police party consisting of 5 police officers could not
manage to arrest the accused persons at the spot and they managed to
escape. Learned counsel further submits that nothing is to be recovered
from the petitioner and as such his custodial interrogation is not required.
He is already ready and willing to join the investigation. Learned counsel
vehemently argues that in the presence of Mines and Minerals
(Development and Regulation) Act, 1957 which is a special enactment, no
offence under Section 379 of the IPC is made out. The offence under
Section 21 of the aforesaid Act is also not made out. Even otherwise
cognizance thereof cannot be taken by the court except on written
complaint of the person authorized by the Central/State Government as
provided by Section 22 of the aforesaid Act. The police cannot register
FIR and cannot investigation the case. In support of the aforesaid
submissions, learned counsel relies on Harmela Ram vs. State of
Haryana (CRM-M-526-2012 decided on 29.4.2013), Labh Singh and
others vs. State of Punjab (CRR-3850-2013 decided on 18.5.2015),
Nachattar Singh vs. State of Punjab (CRM-M-17708-2016 decided on
30.11.2018) and Darbara Singh vs. State of Punjab (CRM-M-33782-
2015 decided on 30.8.2018).
On the contrary, learned counsel for the State submits that the
petitioner is a habitual offender and there are other cases registered against
him including a case registered under the Punjab Excise Act. Learned
counsel further submits that in one of the cases i.e. FIR No.197 dated
5.11.2014 registered at Police Station Amritsar Rural, the petitioner has
been declared Proclaimed Offender vide order dated 12.9.2022 passed by
the Judicial Magistrate 1st Class, Amritsar.
Having heard learned counsel for the parties, prima face I am
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of the view that the petitioner has been declared a proclaimed offender in
one of the cases i.e. FIR No.197 dated 5.11.2014 registered at Police
Station Amritsar Rural vide order dated 12.9.2022 passed by the Judicial
Magistrate 1st Class, Amritsar. The aforesaid FIR has been registered way
back in the year 2014 and he is absconding till date. It is settled
proposition of law that when a person against whom a warrant had been
issued and is absconding or concealing himself in order to avoid execution
of warrant and declared as a proclaimed offender in terms of Section 82 of
the Cr.P.C, he is not entitled to the relief of anticipatory bail. This view of
mine is fortified by the judgment of the Hon'ble Supreme Court in case
State of M.P. vs. Pradeep Sharma, 2014 (1) RCR (Criminal) 269.
Morever, the antecedents of the petitioner are not good as he
is involved in several other cases including a case registered under the
Punjab Excise Act. It has been observed by the Hon'ble Supreme Court in
case Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P,
(1978) 1 SCC 240 that deprivation of freedom by refusal of bail is not for
punitive purposes but for the bifocal interests of justice. It has further
been observed that it is rational to enquire into the antecedents of the man
who is applying for bail to find out whether he has a bad record,
particularly a record which suggests that he is likely to commit serious
offences while on bail.
Moreover, in the present case, Investigation is still going on
and, therefore, custodial interrogation of the petitioner is necessary for
finding out the modus operandi of commission of offence. It is settled
proposition of law that power exercisable under Section 438 of the Cr.P.C.
is somewhat extraordinary in character and it is to be exercised in
exceptional cases. This view of mine finds support from the judgment of
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Hon'ble Supreme Court in Madhya Pradesh vs. Pradeep Sharma, (2014)
2 SCC 171.
In view of the above, the present petition being devoid of any
merit is dismissed. Nothing said herein shall be construed as an expression
of opinion on the merits of the case.
(ASHOK KUMAR VERMA)
JUDGE
17.11.2022
MFK
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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