State of Maharashtra vs Kachrusingh Santaramsingh Rajput and another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1994 Supreme(Bom) 88

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
M.S. Vaidya, J.
The State of MAHARASHTRA... Petitioner.
Versus
Kachrusingh Santaramsingh Rajput and another ... Respondents.
Criminal Revision Application Nos. 42 43 of 1994, decided on 18-2-1994.
Advocates appeared :
K.B. Chaudhari, A.P.P. for State/petitioner in Cri. Appl. Nos. 42 43.
S.N. Loya, Counsel for respondents in Cri. Appl. Nos. 42 43.

Headnote:Sections 157 and 438 (as amended in 1993)-Court-Power of-Its scope, Section 428, old or substitutes virtually operates as an injunction against the police restraining them to arrest an offender as required by Section 157 (1) of the Code of Criminal Procedure and to release him on bail, if arrested on the terms and conditions imposed on the alleged offender by the Court, while issuing such an injunction, the Courts have got to be extraordinarily cautious, particularly in view of the deteriorating law and order situation day by day, in exercising the powers which arc conferred upon them under Section 438 of the Code of Criminal Procedure, The powers under Section 438 of the Code are to be exercised "in the interest of justice" and not otherwise.
       Section 438 (1), (2), (3) and (4) (as amended in 1993)-Application for anticipatory bail application-Arresting power-Whether there is any bar to arrest the person whose anticipatory bail application has been rejected.
       Held, It was thought for some time that if a person who approached the Court for anticipatory bail loses his cause, he could not be arrested or he should not be arrested or he should be arrested immediately. Proviso to subsection (1) now removes the doubt on that point by providing that where the High Court or the Court of Sessions, as the case may be has not passed any interim order under that sub-3ection, or has rejected outright the application for grant of anticipatory bail. It would be often to the officer in-charge of a Police Station to amongst. without warrant the applicant on the basis of the accusation apprehended in such application i.e. the application preferred by the person seeking anticipatory bail.
       It is, thus, clear that the person approaching the Court for anticipatory bail under Section 438 (1) is not given any absolute protection as such, by the section till be has secured some protection from the Court, either in the form of anticipatory bail or, in the form of an interim order of protection or, interim order for bail.
       Section 438 (1), (3) and (4)-Offence under Essential Commodities Act Application for anticipatory bail-Court duty bound to either grant or reject application.
       Sub-section (1) of Section 438 indicates the contingencies in which a person accused of an non-bailable offence could apply to the High Court or to the Court of Sessions for a direction for grant of bail to a person apprehending arrest, It lays down now, the considerations which such a Court had to bear in mind, while deciding the application for anticipatory bail.
       The sub-section itself made it clear that on the consideration indicated in the section and other allied considerations, the Court might either reject the application forthwith or, issue an interim order for grant of anticipatory bail. Thus, it is open to the Court to reject the application forthwith if the Court was of the opinion that having full regard to the considerations indicated in sub-section (1) of Section 438 and other relevant consideration, the case before the Court was not a fit case for grant of anticipatory bail.
       Circumstances may, however, exist when it may not be possible for the court to arrive at such a decision forthwith. In such cases, it might become necessary to adjourn the hearing of the case to some future dates, The law does not respect the right to liberty of every individual though, in certain circumstances, there could be some constraints on the exercise of that right. Therefore, sub-section (1) itself provides for issuance of an interim order for grant of anticipatory bail.
       Section 438 (4) (as amended in 1993)--Provisions under-Not prescribing any limit in giving directions for presence of accused in Court.
       Held - Sub-section (4) in that respect, stands on its own. It provides that the presence of an applicant seeking an anticipatory bail, shall be obligatory at the time of final hearing of the application and passing of the order by the Court, "if on an application made to it by the Public Prosecutor the Court considers such presence necessary in the interest of justice".
       Thus, the presence of the accused may be directed by the Court on an application of the Public Prosecutor and only if the Court considers such presence necessary in the interest of justice. Again sub-section (4) did not put limitation on the power of the Court to direct suo motu in the interest of justice, a particular accused to remain present in the Court at the time of final hcarillg of the application. It is not necessary to read sub-section (4) of Section 438 as rigidly as that. It is a power to be exercised by the Court in the interest of justice.
       The justice does not always lie protecting the person who is an accused. The justice also lies in ensuring, in appropriate cases where the State exercise its power of investigation strictly according to law, in not creating hindrance in the exercise of the lawful power of the State. We do not think that sub-section (4) of Section 438 prescribes or imposes any limitation on the power of the Court, to direct the accused to remain present in the Court, at the time of final hearing, whenever it thinks such presence necessary in the interest of justice.

JUDGMENT- M.S. VAIDYA, J.:---Rule made returnable forthwith by consent of the Counsel for both the Revision Applications.

2. These are the Revision Applications filed by the State which had felt aggrieved by the orders dated 28-1-1994 passed against two different accused persons concerned with the offence registered at Cr. No. 6/1994 of MIDC, Waluj Police Station under sections 3 and 7 of the Essential Commodities Act; section 423 of the Petroleum Act and sections 420, 468, 471, 477-A read with section 114 of the Indian Penal Code. The offence in question was registered at the Police Station on 22-1-1994 against the respondents in both the Revision Applications and also against some others.

3. Respondent Kachrusingh in Criminal Revision Application No. 42/94 had applied for anticipatory bail in the Court of Special Judge and Addl.Sessions Judge, Aurangabad on 24-1-1994 in Miscellaneous Criminal Application No. 48/94, and respondent-Lalit in Criminal Revision Application No. 43/94 had applied for anticipatory bail on 27-1-1994 in Misc. Cri. Application No. 56/94. It appears that the learned Special Judge had not granted any interim protection to any of the accused . The say of the prosecution was called for and the same was to be filed in the Court on 28-1-1994. Mr. Chaudhari, the learned A.P.P. informed this Court that, accordingly on 28-1-1994 the prosecution has filed its say in the matter resisting the applications for anticipatory bail.

4. On the same day after filing the say, the prosecution applied to the Court, praying for the presence of the petitioners in the Court at the time of final hearing. Reliance was, therefore, placed on section 438(4) of the Code of Criminal Prodedure, as it stood after substitution of the entire section 438 under Code of Criminal Procedure (Maharashtra Amendment ) Act, 1993 (Maharashtra Act XXIV of 1993 ) published in the Maharashtra Government Gazette on 5th August, 1993 and which had come in force on 1-11-1993, vide Govt. Notification H.D/M/S/1187/728/CR-189/Pol-7 dated November 1st, 1993. The prayer made in the applications was that the applicants in both the Misc.Criminal Applications before the learned Judge should be required to attend the Court personally at the time of final hearing because, the prosecution was apprehensive of their disappearance thereafter if at all the applications for anticipatory bail was rejected. It was also contended that the applicants in those proceedings were influential persons and they had dodged the process of law by absenting themselves from their places of business and the places of residence. The submissions made on behalf of the applicants before the learned Special Judge and Additional Sessions Judge, were to the effect that sub-section (4) of section 438 as substituted, depended upon sub-sections (2) and (3) of that section and, therefore, unless and until an interim order for bail was passed by the Court considering the application for anticipatory bail, sub-section(4) had no application and that, therefore, the Court had no jurisdiction to require the presence of the applicants therein before the Court under the aforesaid provision.

5. The contention appears to have weighed much on the mind of the learned Special Judge and he was inclined to accept the same. However, in the last paragraph of his impugned order, which was a common order for both the applications in question, he pointed out that the applications were already fixed on that date, i.e. 28-1-1994, for final hearing and , that therefore, instead of adjourning the final hearing to require the accused persons to remain present in the Court, it would be just and proper to proceed with the final hearing on the main applications for anticipatory bail. He rejected the prayer made on behalf of the State on the date of final hearing. To that extent to which this reason is assigned in support of the order, we find no fault with the learned Special Judge. If the ap

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