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1996 JLJ 363
R.D. Shukla and S.B. Sakrikar, JJ.
Kailashpati Kedia v. State of Maharashtra and others
Misc. Cr. Case No. 817 of 1996; Decided on 27.3.1996.
The only difference that would arise in exercise of jurisdiction u/s. 81 and 438 of Code would be that in the former case a person has been arrested in a case registered beyond the local jurisdiction of the Court and in a later case the person is apprehending his arrest in a case registered beyond the jurisdiction of the Court.
If the same anology as per second proviso to section 81 of the Code is taken for exercising powers u/s. 438 what comes out is that the Court may issue a direction for admitting the person apprehending his arrest to bail. Of course, this power is to be exercised with caution and in, appropriate cases only. The possible conflict and contradictory decision ought to be avoided. But that would be a matter of propriety and the manner of discretion to be exercised but that does not mean that Sec. 438 of the Code in any way prohibits or inhibits exercise of jurisdiction in cases arising beyond the jurisdiction of the Court.
It is clear that in enshrining the salutary provision in section 438 which applies only to non-bailable offences was to see that the liberty of the subject is not put in jeopardy on frivolous grounds. 1994 CrLJ 1962, 1992 CrLJ 3442, 1991 CrLJ 950, 1985 CrLJ 1887, 1982 CrLJ 61 and 1984 CrLJ 757 relied on. 1983 CrLJ 1182, 1984 CrLJ 714 and 1986 CrLJ 605 (FB) dissented from. 1989 CCr J 126 confirmed. 1990 JLJ 513 overruled. AIR 1977 SC 366 followed. [Paras 15 to 17
(2) Criminal P.C., 1973 -- Ss. 438 and 439 -- distinction between bail orders under -- under S. 438 bail is granted in anticipation of arrest i.e. before the accused is arrested -- under S. 439 the bail is granted after arrest amounting to release from the custody of police. AIR 1980 SC 1632 followed. [Para 18
¼1½ naM çfØ;k lafgrk] 1973 & /kkjk 438 rFkk 81 & vfHk;qDr dk fuokl U;k;ky; dh LFkkuh; vf/kdkfjrk ds Hkhrj & ,slk U;k;ky; vfxze tekur eatwj dj ldrk gS Hkys gh vijk/k dk jftLVªhdj.k mldh LFkkuh; vf/kdkfjrk ls ckgj gqvk gks & ;g /kkjk 81 ds v/khu mica/kksa ds dkj.k gS & ,slh tekur ml U;k;ky; rd igq¡pus ds lhfer ç;kstu ds fy, gksuk pkfg, ftldh LFkkuh; vf/kdkfjrk ds Hkhrj vijk/k dk jftLVªhdj.k gqvk gSA lafgrk dh /kkjk 81 rFkk 438 ds v/khu vf/kdkfjrk ç;qDr djrs le; ,dek= varj ;g mn~Hkwr gksxk fd iwoZrj n‘kk esa O;fDr U;k;ky; dh LFkkuh; vf/kdkfjrk ds ckgj jftLVªhÑr ekeys esa fxj¶rkj fd;k x;k gS vkSj i‘pkr~orhZ n‘kk esa O;fDr dks U;k;ky; dh LFkkuh; vf/kdkfjrk ds ckgj jftLVªhÑr ekeys esa fxj¶rkjh dh vk‘kadk gSA ;fn lafgrk /kkjk 438 ds v/khu ‘kfDr;k¡ ç;qDr djrs le; /kkjk 81 ds f}rh; ijarqd ds vuqlkj ogh lkn`‘; viuk;k tkrk gS rc ifj.kke ;g gksxk fd U;k;ky;] fxj¶rkjh dh vk‘kadk djus okys O;fDr dh tekur eatwj djus dk funs‘k tkjh dj ldsxkA fuLlansg] ‘kfDr dk ç;ksx lko/kkuh ls vkSj dsoy leqfpr ekeyksa esa gh fd;k tkuk pkfg,A laHkkfor }a} rFkk rdZ&vlaxr fofu‘p; Vkys tkuk pkfg, fdarq ;g vkSfpR; dh vkSj foosdkf/kdkj ds ç;ksx ds <ax dh ckr gksxhA rFkkfi] bldk ;g vFkZ ugha gSa fd lafgrk dh /kkjk 438 }kjk U;k;ky; dh vf/kdkfjrk dk ç;ksx fdlh çdkj vo#) vFkok çfrf"k) gSA ;g Li"V gS fd /kkjk 438 esa tks dsoy vtekurh; vijk/kksa dks ykxw gksrh gSa] bl vfHkuanuh; mica/k dh çfr"Bkiuk ;g lqfuf‘pr djus ds fy, dh xbZ Fkh fd çtktu dh Lora=rk rqPN vk/kkjksa ij ladV esa u iM+sA 1994 lhvkj ,y ts 1962] 1992 lhvkj ,y ts 3442] 1991 lhvkj ,y ts 950] 1985 lhvkj ,y ts 1887] 1982 lhvkj ,y ts 61 vkSj 1984 lhvkj ,y ts 757 voyafcrA 1983 lhvkj ,y ts 1182] 1984 lhvkj ,y ts 714] 1986 lhvkj ,y ts 605 ¼iw.kZ U;k;ihB½ folEerA 1989 lh lhvkj ts 126 iq"VA 1990 ts ,y ts 513 myVk x;kA , vkb vkj 1977 ,l lh 366 vuqlfjrA ¿iSjk 15 ls 17 ¼2½ naM çfØ;k lafgrk] 1973 & /kkjk 438 rFkk 439 & ds v/khu tekur vkns‘kksa esa fHkUurk & /kkjk 438 ds v/khu tekur vfxze :i ls vFkkZr~ vfHk;qDr dh fxj¶rkjh ds iwoZ eatwj dh tkrh gS & /kkjk 439 ds v/khu tekur fxj¶rkjh ds i‘pkr~ eatwj dh tkrh gS tks iqfyl dh vfHkj{kk ls NksM+s tkus tSlh gksrh gSA , vkb vkj 1980 ,l lh 1632 vuqlfjrA ¿iSjk 8
R.D. Shukla, J.--1. This order shall dispose of the reference made by learned Single Judge in this case.
2. The brief history of the case is that applicant who is a resident of Saket Nagar, Indore filed an application U/s. 438 of Code of Criminal Procedure (hereinafter referred to as 'the Code') seeking a direction for being enlarged on bail if arrested, popularly known as anticipatory bail.
3. Applicant is engaged in liquor business-distillation and export thereof. It is asserted that a case under section 65 (a) 65 (b), 66 (1) (b), 80, 81 and 108 of the Bombay Prohibition Act, 1949 has been registered in Maharashtra against some persons including the present applicant. Some of the accused persons have been arrested. Accused-applicant is also apprehending his arrest at Indore. He has further stated about the details of the ailment of his father and his own ill-health.
4. Learned Single Judge issued notice to the State and alter hearing the arguments as there was difference of opinion between two learned Single Judges of this High Court; Justice K.L. Shrivastava (as he then was) and Justice B.M. Lal (presently Judge in State of V.P.), referred following question of law to Hon'ble the Chief Justice for being placed before a Larger Bench. It is in this back-ground that the reference has been placed before this Division Bench.
"Whether any person, residing in local jurisdiction of this Court and having reason to believe that he may be arrested on accusation of having committed a non-bailable offence, outside, the local jurisdiction of this Court, can apply to this Court under Sec. 438 Cr.P.C. for his release, in the event of his arrest ?"
5. Justice Shri K.L. Shrivastava, in the case of Narendra Kumar v. State of M.P. and anr., reported in 1989 CCrJ 126, held as follows :-
"On a careful consideration I am of opinion that this Court has jurisdiction to entertain the application for anticipatory bail filed by the petitioner who resides within the jurisdiction of this Court though he apprehends arrest in connection with a case which has arisen and is registered against him out-side the jurisdiction of this Court."
6. Justice Shri B.M. Lal, in the case of Prakash Chandra Soni v. State of M.P. (1990 JLJ 513) has held that the place of the residence of applicant does not give power to the Court to invoke jurisdiction u/s. 438 Cr.P.C. i.e. to say the person apprehending his arrest is required to file application before the Sessions Court or the Court having jurisdiction over the case.
7. Learned counsel for applicant Shri A.M. Mathur submitted that looking to the scheme of the Code a citizen is entitled to approach the Court where he apprehends his arrest. It is not necessary for the person to rush to the place where the case has been registered or is being investigated upon under certain complaint/or First Information Report, as the case may be. He has placed reliance on the following decisions :-
1. AIR 1977 SC 366: With spl. ref. to Paras 4, 17 & 18.
2 AIR 1980 SC 1632 : = 1980 CriLJ 1125.
Paras 4, 6, 11, 12. with spl. ref. to
Paras 4, 6, 11, 12, 16, 35, 38 & 39.
3. 1994 CriLJ 1962 (SB) (Rajasthan)
4. 1992 CriLJ 3442 (DB) (Kerala)
5. 1991 CriLJ 950 (DB) (Delhi)
6. 1985 CriLJ 1887 (DB) (Bombay)
7. 1982 CriLJ 61 (DB) (Calcutta)
8. 1984 CriLJ 757 (SB) (Karnataka)
8. Learned counsel for State Shri G. Desai on the other hand has submitted that since there is initial lack of territorial jurisdiction the Court has no power to issue directions for admitting the applicant to bail It has also been submitted that in certain provinces like Uttar Pradesh by the State amendment, the provisions of section 438 Cr.P.C. has been withdrawn and, therefore, if jurisdiction under Sec. 438 of the Code is exercised by the Courts having no jurisdiction over the matter anomalous position would be created and there may be conflict of jurisdiction leading to contradictory decisions.
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