SACHINDRA MAHAWAR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) "Liberty is to the collective body, what health is to every individual body. Without health no pleasure can be tasted by man; without Liberty, no happiness can be enjoyed by society."

(2.) Before, I advert to deal with the contentions raised at the Bar, I would like to remind myself the caution given by Benzamin Cardozo :

(3.) Submission of the learned Government Advocate is that the view taken in Kailashpati Kedia (supra) requires reconsideration. To substantiate the aforesaid submission he pointed out that this Court had not taken into consideration the definition of High Court as per Section 2(e) under the Code, Articles 214 and 225 of the Constitution and under the Central General Clauses Act. He has also contended that this Court has not taken into consideration the import and effect of Section 177 of the Code. He has also highlighted that the Court has not addressed itself with regard to unworkability if the jurisdiction is exercised under Section 438 of the Code in relation to an offence committed by the accused in other State. It is also put forth by him that under the scheme of the Code the Court take cognizance of an offence and not of the offender, and therefore, place of domicile cannot be regarded as a factor to confer jurisdiction on Court. Lastly, it is argued by him that Section 438 must be read conjointly with Sections 436, 437 and 439 of the Code and should not be scrutinised independently as if it belongs to a different compartment altogether. Resisting the aforesaid submissions of the learned Government Advocate, Mr. Surendra Singh, learned Senior Counsel, has contended that the apprehension of arrest is an essential facet as per the language employed under Section 438 of the Code. It is his submission that once it is held that the Court has jurisdiction the definition of Court under the Code melts into insignificance and the concept of extra-territoriality gets ostracised. Submission of learned Senior Counsel is that the concept of bail stands on a different footing than enquiry and trial and arrest and bail being inherently interlinked this Court has jurisdiction to pass a protective order in favour of an accused depending upon the facts and circumstances.