SAWAI SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an application for the grant of anticipatory bail by Sawai Singh, who claims to have reason to believe that he may be arrested on an accusation of having committed a non-bailable offence punishable under s. 326; I P. C.

(2.) THE circumstances under which this application has been filed may be narrated, in brief, as follows: - On 18-3-1974 at 11. 45 p. m. Virendra Singh, Overseer, Public Works Department (Buildings & Roads), Phalodi, lodged a written report with the police at Police Station, Phalodi, wherein it was alleged that one driver and a cleaner of truck No. R. S. Q. 4721 had made an unprovoked assault on Nand Kishore, an employee of the Public Works Department, and caused multiple injuries to his person with both blunt and sharp-edged instruments. THE police received the report and directed Nand Kishore to have his injuries examined by a medical officer. Nand Kishore, accordingly, approached Dr. Suresh Chandra Mathur the very day for medical examination of his injuries. THE Doctor found three injuries on his body, out of which one was of a grievous nature caused by some sharp-edged instrument. On recipt of the injury report, the police registered a criminal case No. 25 dated 26-3-1974, under secs. 326, 325 and 323, I. P. C. on its basis and started investigation into the matter. Although the case is still under investigation, and the petitioner has not been arrested, he apprehends that he is liable to arrest at any time by the officer incharge of the police station, Phalodi, without a warrant. THE petitioner, therefore, made an application to the Sessions Judge, Jodhpur, for grant of bail in anticipation of his possible arrest. THE application was heard and rejected by the Additional Sessions Judge No. 2, Jodhpur, who, on that day had jurisdiction to deal with such applications under sub-sec. (3) of sec. 10 of the Criminal Procedure Code, 1973, in the absence of the learned Sessions Judge, Jodhpur. THE ground for rejection was that neither the petitioner physically appeared before the court and surrenderred himself, nor did he personally submit his application for the grant of anticipatory bail in accordance with the provisions of S. 438 (1), Cr. P. C. which reads as follows - "438. Direction for grant of bail to person apprehending arrest - (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. " THE important question that arises for decision, therefore, is whether the words "he may apply" in S. 438 (1) do not contemplate an appearance of the petitioner through his counsel and whether the petitioner must appear physically before the court and submit his application for anticipatory bail before any direction can be issued in his favour under S. 438 of the Criminal Procedure Code, 1973. Prior to the day on which the new Criminal Procedure Code came into force, there was no provision in the old Code for grant of bail by anticipation to a person who, although appeared in court and surrendered himself, was not arrested or detained or subjected to some kind of restraint. Hence, it was held in a number of decisions of this Court as well as of other High Courts in India that bail cannot be granted to such a person merely because a report of cognizable non-bailable offence had been lodged against him with the police and is under investigation and he is liable to at rest by the officer incharge of the investigation without a warrant. But after the commencement of the new Code of Criminal Procedure a new provision has been made enabling the Sessions Judge and the High Court to issue a direction to release a person on bail in the event of his arrest, if such person has reason to believe that he is liable to arrest on an accusation of having committed a non-bailable offence. THE new provision in contained in S. 438 of the Criminal Procedure Code, 1973. Under this section a person anticipating arrest in a non-bailable offence, but for whose arrest no steps have been taken, can apply for a direction that in the event of his arrest, he shall be admitted to bail, subject to such conditions as the High Court or the Court of Session thinks fit to impose. THE basic idea in this section is that a person, against whom an accusation of non-bailable offence is made and is under investigation by the police, may come and satisfy the court that there are no reasonable grounds for believing that he has committed any non bailable offence and that he will be put to great in suit and unnecessary harassment in the event of his arrest by the police. Before coming into force of the new Code some kind of restraint on the person was necessary before he could ask the court to bail him out, but now a direction under S. 438, Cr. P. C. 1973, can be issued in favour of a person who has not been arrested without a warrant and for whose arrest no warrant has been issued, provided all the conditions laid down in the said section are fulfilled. In view of the adverted to above change in the legal position relating to grant of bail to a person apprehending arrest, can it be reasonably held that it is necessary in the interest of justice or for some other good reason that the person apprehending arrest should appear physically before the court of Session or the High Court to apply for grant of anticipatory bail and should remain present therein throughout the course of hearing of his application THEre is nothing in S- 438, new Criminal Procedure Code, which enjoins that the applicaat should physically appear in the court to apply for a direction and should be present throughout the course of hearing of his application. Reason for the absence of such a provision is obvious. THE reason in that if a person having reason to believe that he may be arrested on an accusation of a non-bailable offence, physically appears before the court and applies for a direction for grant of bail to him, the court may or may not in its discretion make such a direction in his favour and if the court decides that no such direction, as contemplated by sub-sec. (1) of S. 438, Cr. P. C, can be issued in favour of such a person, it cannot take him into custody and order his detetion for the simple reason that neither a warrant of arrest has been issued against him, nor has any police officer taken steps to arrest him without a warrant and nor has any order in writing been given by the officer incharge of investigation to a subordinate to make his arrest. Such person cannot be sent to judicial custody, unless there is a warrant of arrest issued against him, nor can he be handed over to the officer incharge of the investigation, because that officer may say that he never intended to arrest him and that his arrest is not necessary. No purpose, therefore, will be served if physical appearance of the petitioner before the court in making an application under S. 438, Cr. P. C. 1973, is insisted upon. THE words "he may apply" used in S. 438, Cr. P. G. contemplate an appearance of the petitioner through his counsel. If the petitioner is having a counsel to act and plead on his behalf, the appearance by his counsel involves the performance of all acts including an act of filing the application itself under S. 438 of the new Code for obtaining a direction. It is undoubtedly true that in the case of a person who is not under arrest but for whose arrest a warrant has been issued or a step has been taken by a police officer to arrest him without a warrant or an order in writing has been issued under sec. 55 (1) of the new Code, which corresponds to sec. 56 of the old Code, bail can be granted only if he physically appears in court and surrenders himself, because in such a case if the bail is refused, he shall be taken into custody and shall forthwith be sent to judicial custody or shall be forwarded to the officer incharge who had issued an order in writing to a subordinate to make his arrest. THE Additional Sessions Judge, therefore, should not have insisted upon the personal appearance of the petitioner for submitting an application for bail under sec. 438, Criminal Procedure Code, 1973. That application may be presented before the High Court or the Court of Session by the petitioner or by his counsel. An examination of the relevant High Court rules in this regard also points to the same conclusion. R. 307 does not contemplate physical appearance of the applicant for filing an application in a criminal matter. It reads as follows - "every petition of appeal or application for revision or other application in a criminal matter shall be presented before the official appointed for the purpose by the Registrar, who shall immediately fix a date not more than five days ahead. On that date the party filling the petition of appeal or application or his counsel should attend in office to ascertain the progress of the matter. I he official concerned shall in the mean while examine the petition or application with a view to seeing whether it is in order, properly stamped and within time and submit a report in the prescribed form to the Register. " THE learned Deputy Government Advocate invited my attention to R. 323 (1) and contended on its strength that no application for bail can be entertained by the High Court unless the accused has surrendered except there he has been released on bail after conviction under sub sec. (3 A) of sec. 426 of the Code of Criminal Procedure. This rule does not govern an application filed under R. 438 (1) of the new Code for issuing a direction for grant of bail to a person apprehending arrest. THEse rules apply only to application for bail where the applicants are under arrest or under some kind of restraint and who, upon rejection of their bail application, can be sent to judicial lock up or forwarded to the officer incharge of the investigation. THE conclusion at which I, therefore, arrive is that the words "he may apply" used in sec. 438 of the Criminal Procedure Code, 1973, cannot be given a literal meaning so as to insist upon the petitioner to physically appear in the court and surrender himself before his application under sec 438 I), Cr. P. C, can be entertained.