ASHOK KUMAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) This is an application under Section 438, Cr. P.C. for grant of anticipatory bail.

(2.) it is contended by Shri S. C. Lal, learned counsel for the petitioner that at the instance of the accused in G.R. Case No. 19 of 1999, a case under Sections 457, 427, 294, 379, 506/34, I.P.C. has been instituted bearing Barbil P. S. Case No. 24 of 1999 which corresponds to G. R. Case No. 24 of 1999. Smt. Sangeeta is the widowed daughter of petitioner No. 1 who was married to one Ajoy, son of Bhagwan Das in the year 1995. Said Ajoy was a heart-patient, but such fact was concealed by his parents and for which Sangeeta was given in marriage to Ajoy who died on 20-12-98. It is further submitted that Sangeeta was subjected to ill-treatment and mental torture by the in-laws, which became intense after death of her husband. In the circumstances, petitioner No. 1 decided to bring back Sangeeta and her child to Nawada, the place of living of the petitioners. Accordingly, it was proposed to Bhagawan Das for return of Streedhan properties of Sangeeta. Petitioner No. 1 sought mediation of well-wishers and friends at Barbil and for this purpose, he reached Barbil on 19-1-99 and an agreement was arrived at in presence of the Bhadraloks for return of Streedhan of Sangeeta. It is stated that unfortunately at about 10.00 p.m. in the night, Shri Bhagwan Das and his henchmen forcibly entered into the house of one Smt. Jasbir Kaur where the settlement had taken place. The persons were armed with deadly weapons and they assaulted the petitioners, snatched away a sum of Rs. 60,000/-, a gold chain and Titan wrist-watch from petitioner No. 2. The house-hold furniture were broken and the petitioners sustained injuries on different parts of their body, for which an F.I.R. was lodged at 10.30 p.m. at Barbil Police Station. Onpolice requisition the petitioners were examined by the medical officer. The police conducted the investigation and having found a case, a charge-sheet has been filed by the Barbil Police under Sections 452, 341, 323, 427/34, I.P.C. A copy of the F.I.R., injury reports and charge-sheet in G. R. Case No. 19 of 1999 are allso annexed to this petition.It is submitted by Shri Lal that after the petitioners left Barbil on 20-1-99, one Arjun Sahoo accused in G. R. Case No. 19 of 1999 filed an F.I.R. against the petitioners at 3.30 p.m. making allegations against the petitioners of having committed offences under Sections 457, 427, 294, 379, 506/34, I.P.C. Accordingly, Barbil P. S. Case No. 24 of 1999 corresponding to G. R. Case No. 24 of 1999 was registered against the petitioner. G. R. Case No. 24 of 1999, according to the petitioners, is the counter case to G. R. Case No. 19 of 1999 and has been instituted falsely. In the charge-sheet, the petitioners have been shown as absconders. It is submitted by the learned counsel for the petitioners that knowing fully well that the petitioners belong to Nawada and Seikhpur in the State of Bihar, the police has shown them absconders inasmuch as the police had never required their presence in Barbil either for the F.I.R. lodged by them in G. R. Case No. 19 of 1999 or in connection with G.R. Case No. 24 of 1999, the present case.It is submitted that after the police has submitted the charge-sheet before the Magistrate showing the petitioners absconders, by order dated 17-7-99, the learned Judicial Magistrate First Class, Barbil has taken cognizance of the offences under Sections 457, 427, 294, 506/34, I.P.C. but no process has been issued.The learned Addl. Standing Counsel for the State has raised the question of maintainability of the application under Section 438, Cr. P.C. contending inter alia that in a case where charge-sheet has been submitted, cognizance has been taken by the Magistrate and process has been issued, a petition for anticipatory bail is not maintainable. While refuting the stand of the State counsel with regard to issuance of process, the learned counsel for the petitioners submits that even if cognizance has been taken but no process has been issued. It is revealed from the L.C.R. that on 17-7-99, the learned Magistrate has taken cognizance of the offence and by the order dated 18-8-99, N.B.W. against the petitioners has been issued.Undisputedly, therefore, in the present case, on the basis of the charge-sheet submitted by the police, the learned Magistrate has taken cognizance and issued N.B.W. against them. The question arises, as to whether the application under Section 438, Cr. P.C. would be maintainable on such circumstances, at this stage.Shri Lal, learned counsel for the petitioners contends that the High Court or the Court of Session has power to grant anticipatory bail under Section 438(1), Cr. P.C. to a person even after the criminal Court has taken cognizance of the offence and has issued processes i.e. warrant of arrest, against the accused persons. Filing of charge-sheet by the police and issuance of warrant of arrest by the Magistrate, according to Shri Lal, do not put an end to exercise of power under Section 438, Cr. P.C. The learned counsel has referred to certain decisions of different High Courts in support of his contention.Shri Lal has referred to a decision of Madras High Court in the case of Natturasu v. The State 1998 Cri LJ 1762. In the said decision, the learned single Judge has taken the view that the High Court has power to grant anticipatory bail even after filing of the charge-sheet and issuance of warrants and merely issuance of warrant or taking of cognizance would not affect the power under Section 438, Cr. P.C. to grant anticipatory bail. The learned Judge quoting several decisions of various High Courts, has gone to the extent of taking a view that even at the committal stage, an accused can approach the High Court or the Court of Session since word 'arrest' would mean.... custody on committal provided he is not on bail earlier and also at a stage when a person is impleaded as an accused under Section 319, Cr. P.C. (emphasis supplied). I am respectfully not in agreement with the view expressed by the learned Judge since in my opinion such a view would offend the provisions and the very concept of an anticipatory bail contemplated under Section 438, Cr. P.C.

(3.) The next decision relied upon by the petitioner's counsel is a Full Bench decision of the Andhra Pradesh High Court in the case of Smt. Sheikh Khasim Bi v. The State, AIR 1986 AP 345 : (1986 Cri LJ 1303). The Full Bench has taken a view that the High Courtand the Court of session have power to grant anticipatory bail under Section 438(1) to a person after the criminal Court has taken cognizance in a case and has issued process viz. warrant of arrest against that accused person, inasmuch as sub-section (3) of Section 438, Cr. P.C. does not in any manner restrict the power of the Court to grant anticipatory bail, but on the other hand, it only contains the procedural aspect that is necessary to give effect to the order of anticipatory bail passed under sub-section (1) of Section 438 and the manner in which it would be given effect to. However, the High court or the Court of Session may not be inclined to grant bail keeping in view the fact that the Magistrate has taken cognizance and issued processes, but mere non-exercise of such power does not mean lack of jurisdiction. The Bench took the view that once the charge-sheet is filed and the warrant is issued, it indicates that the matter has reached a stage that arrest is a certainty and there is no question of the person still having only 'reason to believe' that he may be arrested. Filing of a charge-sheet and issuance of warrant are certainly the grounds which make the person not only to believe that he would be arrested but also to move the Courts under Section 438(1) Cr. P.C. The aforesaid decision in essence, in my considered view contemplates two propositions :(i) that the Courts may not be inclined to grant bail in a situation where the Magistrate has taken cognizance and issued process, but mere non-exercise of such power would not mean lack of jurisdiction.(ii) the application under Section 438(1) Cr. P.C. can be made at any stage, of a Criminal proceeding.The aforesaid decision was noticed in the case of Mansa Murmu v. State of Orissa, (1989) 2 OCR 439 and the Court did not agree with the view taken by the Andhra Pradesh High Court.