AKHALAQ AHMED F PATEL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner was arrested for offences under sections 498a, 306 and 34 of Indian penal Code. He was released on bail on 24-1-1996. The petitioner is a Police Constable and now attached to Azad Maidan Police Station and is a permanent resident in Mumbai. The deceased, who is the wife of the petitioner suffered burn injuries at her parents house on 10th November, 1995 at around 00. 15 hrs. The father of the deceased is said to have come home at 2. 00 a. m. The deceased had been removed to hospital. A statement was recorded of the deceased in the presence of the executive Magistrate wherein she stated that the husband is not responsible. A statement of the father was also recorded. He also stated that the husband was not responsible. However, the father made another statement on 18th November, 1995 wherein he stated that he had come to know from his daughter that the petitioner and his father were having illicit relations with the sister-in-law of the deceased and, therefore, she was feeling insulted and that is why she has committed suicide. On the basis of this, FIR was registered on 18th November, 1995. However, the petitioner was released on bail on 4-1-1996. Subsequent thereto the father of the deceased has filed a complaint before the Additional Chief Metropolitan magistrate, 24th Court Borivli, Mumbai. On the basis of this, the learned Magistrate issued non-bailable warrant. The petitioner came to know about the issue of non-bailable warrant when a newspaper report was published on 10th March, 1998. In view of the above, the petitioner moved an application for anticipatory bail under section 438 of the Criminal Procedure Code which has been rejected by the Additional Sessions Judge, Gr. Mumbai by his order dated 30th March, 1998.

(2.) IT was submitted before the learned additional Sessions Judge that the learned magistrate has taken cognizance of an alleged offence punishable under section 302, Indian Penal code. It was submitted that this is a clear abuse of the process of Court. The petitioner has already been released on bail for offences which are based on the same incident. It was submitted that the petitioner cannot be arrested again and again for the same incident. It was also submitted that the application for anticipatory bail is maintainable before the Sessions Court in view of the fact that non-bailable warrants had been issued. In support of his submission, the learned counsel has relied on a Full Bench decision of the andhra Pradesh High Court reported at 1986 cri. L. J. 1303, Smt. Sheik Khasim vs. State. It was, however, submitted by the counsel for the state that in view of the judgment of this Court reported in 1992 Cri. L. J. 2373, Ambalal P. Rashamwala vs. State of Maharashtra the Sessions court had no jurisdiction to entertain the application under section 438 of the Criminal procedure Code. In paragraph 6 of the impugned judgment the learned Additional Sessions Judge has held thus :

(3.) IT is submitted by Mr. Sutrale, appearing for the petitioner, that the observations relied upon by the learned Additional Sessions Judge of greater Bombay are contrary to the judgments given by Full Bench of the Andhra Pradesh High Court noticed above, Division Bench of the Calcutta High court reported in 1996 (2) Crimes 555, Pankaj lochan Sahoo and anr. vs. State, Division Bench of the Delhi High Court reported in 1997 Cri. L. J. 961, Full Bench of the Madhya Pradesh High Court reported in 1995 MPLJ 296 (FB) = 1996 (1) Crimes 238, Nirbhay Singh and anr. vs. State of M. P. and a Division Bench judgment of the Punjab and haryana High Court reported in 1985 Cri. L. J. 897, puran Singh vs. Ajit Singh and anr. A perusal of the judgment of Cazi, J. given in the case of ambalal (supra) shows that there is absolutely no discussion whatsoever of the relevant provisions of the Criminal Procedure Code or the principles governing the grant or refusal of anticipatory bail. The learned Judge has merely expressed an opinion to the effect that no anticipatory bail can be granted after a Magistrate has issued a warrant. These observations in my view cannot be treated as a ratio which is legally binding. They can at best be treated as obiter dicta being observations without consideration of the relevant provisions of law. On the other hand the Full bench decision of the Andhra Pradesh in the case of Sheik Khasim (supra) considered the various provisions of the Criminal Procedure Code and the whole gamut of case law on anticipatory bail. The full Bench notices the oft quoted judgment of the supreme Court in the case of Gurbaksh Singh Sibbia vs. State of Punjab, AIR 1980 SC 1632. In the aforesaid case the Supreme Court observed as follows: