HIGH COURT OF MADRAS
P. R. SHIVAKUMAR, J.
RAVI ALIAS RAVI PRAKASH
VS.
STATE
Crl. O. P. No. 10146 of 2009
Decided On : JULY 01, 2009
Criminal Procedure Code - Sections 438, 482, sub-section (3) of Section 437 – Indian Penal Code,1860 - Sections 147, 148, 341, 294 (b), 307, 397 and 506 (ii) - Arms Act - Section 25 (l) (a) - Explosives Act - Sections 3 and 5 - Relief for the very same case - Registry to Submit a report - Anticipatory bail - Petition has been filed under Section 438 by petitioner herein who figures as first accused in a case registered as Crime on file of D-2 Police Station for alleged offences punishable under Sections 147, 148, 341, 294 307, 397 and 506 IPC another offence punishable under Section 25of Arms Act and punishable under Sections 3 and 5 of Explosives Act - earlier petition filed before this Court for very same relief for very same case which had been taken on file as was dismissed on ground that petition did not contain signature of petitioner nor was it supported by an affidavit of petitioner and that even memo of appearance did not contain signature of petitioner - said order was passed on in which it was also held that a prima facie case for grave offences punishable under sections 397 and 307 IPC was made out - Despite fact that previous petition was dismissed citing above-said reasons petitioner has chosen to file present petition with very same defects – Held, Anticipatory bail under Section 438, cr. P. C. may be moved only by the person apprehending arrest and not by any other person acting on his behalf - Observation does not mean that an advocate cannot act on behalf of such a person - But for such an advocate to act on behalf of petitioner there must be an authorization either in form of or memo of appearance signed by petitioner authorizing advocate to appear on his behalf - Otherwise such a petition should contain signature of petitioner or supported by an affidavit of petitioner - Clarifications are made for future guidance of Registry in entertaining petitions under Section 438, Cr. P. C. instructions should be scrupulously followed lest same will be viewed as willful violation of judicial order passed by this Court leading to prosecution for contempt - Petition does not contain signature of petitioner nor is it supported by an affidavit of petitioner and also there is absence of or memo of appearance containing signature of petitioner - Petition dismissed.
( 2 ) THIS Court by an order dated 22-6-2009 directed the Registry to submit a report as to how this petition happened to be numbered despite the presence of such defects. On earlier occasions, this Court directed the office by way of judicial orders not to entertain petitions under Section 482, cr. P. C. if such petitions are neither signed by the petitioner nor supported by an affidavit of the petitioner and not even accompanied by a memo of appearance containing the signature of the petitioner. Despite such directions, petitions are being filed with such defects and this is one such petition filed for the second time even after the dismissal of the earlier petition pointing out the said defects. In view of the fact that the office has come forward with an explanation that they have to act according to the oral instructions of the Judge concerned dealing with the applications for anticipatory bail, this Court deems it fit to pass an elaborate order detailing the procedure to be followed by the office in entertaining applications for anticipatory bail under Section 438, cr. P. C.
( 3 ) FOR the sake of convenience, the provision found in Section 438, Cr. P. C. is extracted hereunder :
"438. Direction for grant of bail to person apprehending arrest. (1) 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 this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely : (i) the nature and gravity of the accusation; (ii) 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; (iii) the possibility of the applicant to flee from justice; and (iv) 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 : provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section 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 accusation apprehended in such application. (1-A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days' notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Pro
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