YOGENDRA SINGH Vs. STATE OF M P

JUDGEMENT

(1.) MAXWELL in his treatise on Interpretation of Statute (tenth edition) page 284 in his inimitable style postulated thus :

(2.) THE debate, in detail. Yogendra, the applicant in MCrc No. 5921/99 was arrested for an offence punishable under Section 394 of the Indian Penal Code (in short the 'ipc' ). He was admitted to bail and thereafter, he faced trial in Criminal Case No. 397/88 before the Judicial Magistrate First Class, Nagod in the Distt. of Satna. As averred in the petition he used to appear on each date when the case was posted for hearing. However, due to his ill health he could not appear on 4-7-1998 and through his counsel an application for condonation of his absence and for representation was filed. The said application was rejected and a non-bailable warrant of arrest was issued. In this backdrop he moved the learned Additional Sessions Judge for grant of anticipatory bail who negatived the prayer. Being dissatisfied he has approached this Court for grant of said relief. Many a justification has been enumerated explaining the absence of the petitioner on 4-7-1998 and number of grounds have been put forth for grant of anticipatory bail.

(3.) IN MCrc No. 6061/99 Shankarlal was taken into custody for the offences punishable under Section 7 read with Section 16 (1) (a) of Prevention of Food Adulteration Act, 1954. He was facing trial before the chief Judicial Magistrate, Betul in Criminal Case No. 417/91. The petitioner remained absent on 12-4-1996 and he instructed his counsel to file an application for exemption from appearance. As the impugned order of rejection would show, a non-bailable warrant of arrest was issued on 12-4-1996. It is averred that the petitioner had met with an accident and was in a state of coma for nine days. It is also putforth that his wife was ailing for the last four years and hence, the petitioner could not attend the Court. In this background he filed applications under Section 438 of the Code on two occasions which have been rejected by the learned Second Additional Sessions Judge, Betul. His prayer for grant of anticipatory bail having been negatived he has visited this Court for grant of said privilege. Mr. G. S. Ahaluwalia, learned Govt. Advocate has raised a preliminary objection with regard to the maintainability of the applications on the ground that an accused who has jumped bail is not entitled in law to prefer an application under Section 438 of the Code inasmuch as he has already been arrested and released on bail. Elaborating his stand he has contended that it may be understandable in a given case that if a person is initially arrested under Section 326 of IPC and released on bail but later on the offence is converted to Section 307 of IPC he may, if there is apprehension of his arrest, move for grant of anticipatory bail and again after recording of evidence if the person is arraigned as an accused under Section 319 of the Code and a non-bailable warrant of arrest is issued for his arrest he may be entitled to move the Court for grant of anticipatory bail but an accused who has been released on bail either under Section 438 or 439 of the Code and after appearing on some dates does not appear thereafter and his application for representation is rejected, at his instance, an application for anticipatory bail would not be maintainable. Per contra, Mr. P. S. Das and Mr. Tripathi, learned counsel for the petitioners/applicants have contended that there are no fetters in exercising jurisdiction under Section 438 of the Code and this Court should interpret the said provision in 'favour of liberty'. They have placed strong reliance on the decision rendered by Full Bench of this Court in the case of Nirbhay Singh and Anr. v. State of Madhya Pradesh, 1995 MPLJ 296.