Thanks to a reader, we have this judgment of Patna High Court on topic of arrest and anticipatory bail.
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Even though the Supreme Court’s Arnesh Kumar vs State of Bihar & Anr. judgment has been in operation since July 2014, which clearly says that departmental action can be initiated against magistrates if they routinely grant accused to be placed in custody for offences with punishment less than 7 years; it seems that judgment has had no effect in state of Bihar so far. Because in this case, the Patna HC has acknowledged the “very disturbing state of practice prevailing in the subordinate judiciary on the subject of granting of bail in a complaint case involving non-bailable offence inasmuch as when an accused appears in such a case, pursuant to even summon issued against him, his prayer for bail is routinely rejected and he is invariably taken into custody and kept detained.”
According to NCRB’s 2014 report on crimes in India, number of arrests under IPC 498A have not come down, and in fact they have grown somewhat, which means this judgment of SC has had no effect in curbing misuse of police power to arrest, and routine and mechanical grant of judicial custody by magistrates.
Another scam seems to be that it is routinely heard that the lower courts reject the anticipatory bail, but the high court grants bail when appealed. If bail is a right and jail is an exception, it seems lower courts and high courts are holding two opposite views on that principle, and only the high courts have the right view. But that doesn’t give any confidence to the public about judiciary.
Full judgment text below:
Akhilesh Rabani vs State Of Bihar & Anr on 14 May, 2015
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.43532 of 2014
Arising Out of PS.Case No. -655 Year- 2013 Thana -PATNA COMPLAINT CASE District-
1. Akhilesh Rabani Son of Bhikhari Mahto, R/o Village Naya Tola, P.O.
and P.S.-Bakhtiyarpur and District-Patna
…. …. Petitioner/s
1. The State of Bihar
…. …. Opposite Party/s
For the Petitioner/s : Mr. Mohammed Abu Haidar, Advocate.
For the Opposite Party/s : Mr. Tapeshwar Sharma(APP)
CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
3 14-05-2015 This is an application, made under Section 438 of the Code of Criminal Procedure, seeking pre-arrest bail by the petitioner, namely, Akhilesh Rabani, in connection with Complaint case No.655C of 2013 under Section 498A of the Indian Penal Code.
Perused the above application and materials on record including a copy of the order, dated 21.08.2014, passed, in A.B.P. No. 18747 of 2013, by the learned Sessions Judge, Patna, dismissing the said application for pre-arrest bail.
Heard Md. Abu Haidar, learned Counsel for the petitioner, and Mr. Tapeshwar Sharma, learned Additional Public Prosecutor, appearing on behalf of the State.
This case reveals a very disturbing state of practice prevailing in the subordinate judiciary on the subject of granting of bail in a complaint case involving non-bailable offence inasmuch as when an accused appears in such a case, pursuant to even summon issued against him, his prayer for bail is routinely rejected and he is invariably taken into custody and kept detained.
The present application seeking pre-arrest bail has arisen in a complaint case, wherein the prosecution of the accused-petitioner has been sought for under Section 498A of the Indian Penal Code.
On a query made by this Court, Mr. Md. Abu Haidar, learned Counsel, agrees that subsequent to the filing of the complaint aforementioned and taking of cognizance of offence under Section 498A of the Indian Penal Code, summon had been issued against the petitioner, but the petitioner, according to learned Counsel for the petitioner, could not appear in the complaint case aforementioned, because a Magistrate, in a complaint case, does not grant, as a matter of practice, bail if the complaint alleges commission of a non-bailable offence and, hence, ordinarily, an accused, placed in the position, as the present petitioner is placed, applies for anticipatory bail by taking recourse to Section 438 of the Code of Criminal Procedure.
From a bare reading of the provisions embodied in Section 438 of the Code of Criminal Procedure, it becomes abundantly clear that Section 438 of the Code of Criminal Procedure empowers the High Court as well as the Sessions Judge to issue directions granting bail to person(s) apprehending arrest and lays down that where any person has reason to believe that he may be arrested on accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction, under Section 438 of the Code of Criminal Procedure, that in the event of such arrest, he shall be released on bail and that Court may, after taking into consideration, inter alia, the nature and gravity of the accusation, the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence, the possibility of the applicant to flee from justice, and where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail and where the High Court or, as the case may be, the Court of Sessions, has not passed any interim order under Section 438 of the Code of Criminal Procedure or has rejected the application for grant of anticipatory bail, it shall be open to an officer-in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusations made against the applicant.
Sub-section (2) of Section 438 of the Code of Criminal Procedure clarifies that when the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including that the person shall make himself available for interrogation by a police officer as and when required, a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer, a condition that the person shall not leave India without the previous permission of the Court and such other condition as may be imposed under sub- section (3) of Section 437 of the Code of Criminal Procedure, as if the bail were granted under that section.
Sub-Section (3) of Section 438 of the Code of Criminal Procedure further clarifies that if such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1) of Section 438 of the Code of Criminal Procedure.
Because of the fact that Section 438 of the Code of Criminal Procedure applies to a situation, wherein a person, apprehending arrest in connection with non- bailable offence(s), may seek bail, it logically follows that when an accused is summoned to appear in a complaint case involving commission of a non-bailable offence(s), he cannot contend, in the face of the provisions of Section 438 of the Code of Criminal Procedure, that he is likely to be arrested in connection with non-bailable offence(s) inasmuch as the obligation of such an accused person is to appear in the complaint case pursuant to the summon issued to him and he may, on such appearance, apply for bail.
Necessarily, therefore, a person, who is summoned to appear in a complaint case involving non- bailable offence(s), cannot claim to be apprehending arrest and cannot, therefore, seek that he be granted pre-arrest bail before he appears in the complaint case, though merely summon has been issued to him. Obviously, in such a case, his application for pre-arrest bail will not be sustainable.
The fact of the matter, however, remains, as agreed at the Bar, that an accused, such as, the present petitioner, would be sent to jail, as a matter of practice, when the offence alleged ▬ in the complaint case ▬ is a non-bailable offence even if the accused appears, in the complaint case, pursuant to a summon.
It needs to be, therefore, clarified that ordinarily and unless it is otherwise warranted in the given set of facts and circumstances of a case and the law relevant thereto, an accused shall not be remanded to custody merely because the case involves commission of non-bailable offence(s) if the accused appears, in a complaint case, pursuant to issuance of summon.
Coupled with the above, I may also pause here to point out that in a complaint case, when cognizance has been taken, no investigation is, ordinarily, required and it is the complainant, who has to prove his or her case on the basis of the evidence, which he or she may adduce by examining witnesses and such witnesses may be cross- examined by the defence.
No fruitful purpose would, thus, be served by detaining an accused in a complaint case, even if the case involves commission of non-bailable offence(s), unless there is credible material on record to show that accused may unduly influence the witnesses and/or desist them from giving evidence or may not be available for trial.
Unless such an extreme case is made out, as stand indicated above, a Magistrate shall, ordinarily, allow the accused to go on bail unless the offence falls within the exceptions as have been provided under Section 437 of the Code of Criminal Procedure itself, such as, a case of murder, where the case requires an order of commitment to the Court of Session.
Reverting to the case at hand, it may be pointed out that the petitioner, apprehending that he would be taken into custody and detained if he appeared in obedience to the summon issued to him, failed to appear in the complaint case and, in consequence thereof, non- bailable warrant of arrest has been issued to him.
Taking, therefore, a holistic view of the matter, particularly, the fact that a warrant of arrest has been issued against the petitioner ▬ though may be ▬ because of the default of the petitioner in appearing in the complaint case, in question, pursuant to the summon issued against him, this Court is of the view that in the peculiarity of the facts and circumstances of the present case, the petitioner needs to be given the benefit of pre- arrest bail.
Considering, therefore, the matter in its entirety and in the interest of justice, it is hereby directed that the petitioner above-named shall, in the event of his arrest in connection with the case aforementioned, be released on bail of Rs. 10,000/-, with two sureties, each of the like amount, subject to the satisfaction of the Officer- in-Charge, Bakhtiyarpur Police Station, Patna. This direction for bail is further subject to the condition that the petitioner above-named shall, within the time fixed by the learned Court below, appear in the complaint case aforementioned and make himself available as and when directed to appear. This direction for bail is further subject to the condition that in the meanwhile, the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court.
It is also made clear that the learned Sessions Judge and the learned Chief Judicial Magistrate, in the State of Bihar, shall inform the judicial officers of their respective stations that in a complaint case, an accused is not to be detained in custody pursuant to issuance of summon against an accused merely because offence(s), alleged to have been committed, is a non-bailable offence(s) unless the granting of bail to such an accused is restricted or barred by law or the facts of a given case.
Upon taking cognizance of non-bailable offence, a Magistrate does not lose the jurisdiction to grant bail to such an accused provided that the offence does not fall within those categories, where Section 437 of the Code of Criminal Procedure prohibits granting of regular bail by a Magistrate or the peculiarity of the facts of the case does not legally permit granting of bail or when the case is required to be committed to the Court of Session.
This application for pre-arrest bail shall stand disposed of in terms of the above observations and directions.
Let a copy of this order be sent, forthwith, to the Officer-in-Charge, Bakhtiyarpur Police Station, Patna.
Send also a copy of this order, forthwith, to the Superintendent of Police, Patna, by fax.
(I. A. Ansari, J.) Mkr./-