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2003 (2) Crimes 44
Karnataka High Court
K. Sreedhar Rao, J.
Dr. A. Ebenezer —Petitioner
versus
State of Karnataka —Respondent
Crl. P. No. 2806 of 2002
Decided on 5-8-2002
Held: Object of empowering the Sessions Court and the High Court to grant anticipatory bail is to protect the innocent persons from harassment and highhanded tactics of the investigation agency. The conjunct reading of the provisions of Sub-section(1) with the provisions of Sub-section (3) would indicate that the provision of antici-patory bail would be totally irrelevant after filing of the final report/charge sheet. In the normal course of investi-gation of a non-bailable offence, the police officer is empowered with the powers of arrest without a warrant under Section 2(c). The experience has shown the abuse of powers by the investigation agency subjecting the innocent persons to harassment. The power of arrest exercised by the police officer during the course of investigation cannot be equated to an arrest by a police officer pursuant to the issuance of N.B.W. by a Court of Law in respect of a defaulted or an absconding accu-sed. In the former case the police offi-cer exercises executive discretion as Investigating Officer. In the later case he only acts as an agent of a Court of Law in enforcing the order of N.B.W. The risk and vulnerability found in the powers of the arrest by a police officer during investigation under Section 2(c) are totally absent when the police officer arrests a person pursuant to N.B.W. issued by a Court of Law. (Para 6)
Further held: In the backdrop of the object and purpose of the provisions of anticipatory bail, it does not really warr-ant to make the provision of Section 438, Cr.P.C. applicable after filing of a final report and grant of anticipatory bail in such a situation is only a redundant effort. The accused who comes to know the issuance of NBW in a Court of Law without the aid of Sec-tion 438, Cr.P.C. has a relief of seeking recall of the NBW under Sub-section (2) of Section 70 by showing proper reasons and simultaneously make a regular bail application. Sometimes it is cynically argued that the Trial Court would not be liberal in granting bail in non-bailable offences when NBW is issued and the voluntary surrender/appear-ance before the Court would only make the accused suffer detention for a day or two pending disposal of the bail appli-cation on merits. The provisions of anticipatory is not meant to curtail the lawful jurisdiction to the Magistrate or the Trial Court. A bail application under Section 437/439, Cr.P.C. has to be disposed of by the competent Court in accordance with law. In that context, granting anticipatory bail in respect of NBW issued by a Court of Law would only serve to strengthen the cynical arguments. In that view of the matter, I find no merit in the contention of the counsel for the petitioner that the provisions of Section 438 could be invoked in respect of NBW issued by a Court of Law after filing of charge sheet. (Para 9)
Result: Petition disposed of accordingly.
Order
K. Sreedhar Rao, J.— The peti-tioner is an accused in CC No. 18070/2001. On a private complaint, a
case is registered against the accused/petitioner for committing offences punishable under Sections 448, 506 and 313, IPC. The complainant/victim claims to be the wife of the petitioner, according to the complaint. After che-quered rounds of litigation before this Court and Apex Court, ultimately the Trial Court, after recording sworn state-ments, issued process against the petiti-oner for his appearance. On the date of appearance, the Counsel appearing for petitioner made an application for exemption under Section 317, Cr.P.C. alongwith medical certificate to show that the petitioner is admitted in hos-pital and he is under treatment. The Trial Court by the impugned order rejects the application on the ground that the other side opposes the applica-tion and thus directs issuance of N.B.W.
2. The Counsel for the petitioner relied on the Ruling of the Full Bench of Andhra Pradesh High Court reported in Sheik Khasim B.I. v. State (FB)1, to bring home the point that even after filing of a charge sheet in respect of warrant issued by a Criminal Court, anticipatory bail could be granted under Section 438, Cr.P.C.
3. After carefully going through the said ruling, I respectfully disagree with the view taken by the Andhra Pradesh High Court, for the following reasons :
For convenient reference, the provisions of Section 438, Cr.P.C. is reproduced hereunder.
“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.
(2) When the High Court or the Court of Sessions makes a direc-tion 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—
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required.
(ii) 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;
(iii) a condition that the person shall not leave India without the previous permission of the Court.
(3) 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, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance as against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section (1)”.
4. Sub-section (3) of Section 438, Cr.P.C. declares that when an antici-patory bail is granted, the S.H.O. could be directed to release the accused on bail in the event of arrest on taking necessary bail bonds and if a Magistrate taking cognizance of an offence, decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant irres-pective of the provision contained in Section 204 of Cr.P.C. The Magistrate issuing summons/warrant to accused would arise only after filing of the charge sheet. During the stage of investigation, there is no scope for the Magistrate to issue warrant or summ-ons to accused to appear before him. Therefore the contingency of Magistrate issuing a bailable warrant instead of non bailable warrant in the face of anticipatory bail would arise only at a stage after filing of a charge sheet. Sub-section (1) of Section 438, Cr.P.C. empowers the Sessi
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