Banwari Lal Jatav vs State of M.P

Brij Kishore Dubey, J.—Heard on the question of admission and perused the record. This petition u/s 482 of Cr.P.C. is preferred by the petitioner herein/accused for quashing the condition imposed in the order dated 15.7.2013 passed by the Sessions Judge, Shivpuri in Bail Application No. 393/2013, wherein granted bail u/s 438 of Cr.P.C. with a condition to submit bail bonds within a period of seven days.

Facts of the case, in brief, are that a case at Crime No. 305/2012 under Sections 420, 467, 468 and 471 of IPC was registered against the petitioner herein/accused Banwarilal Jatav at Police Station Kotwali, Shivpuri, thereafter the petitioner filed an application u/s 438 of Cr.P.C. seeking anticipatory bail. The application was considered and allowed by the Sessions Judge, Shvipuri vide the impugned order dated 15.7.2013 with certain conditions. The impugned order reads as under:

The petitioner fails to submit bail bonds before the authority as directed by the Sessions Judge within the prescribed period, thereafter he moved an application before the Sessions Judge for extension of time to furnish the bail bonds. The application was considered and vide order dated 23.8.2013, the same was dismissed.

Learned counsel for the petitioner submits that the impugned order passed by the Sessions Judge is illegal, erroneous and incorrect and therefore, the same deserves to be set aside. According to him, in the light of law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, , the order for granting anticipatory bail for limited duration cannot be passed. Learned counsel further cited the decisions of this Court in the cases of Harnam Singh Vs. State of M.P. (M.Cr.C. No. 6212/2012 decided on 31.8.2012) and Smt. Rajesh Bhatnagar Vs. State of M.P. (M.Cr.C. No. 6686/2012, decided on 3.9.2012) and submitted that the condition to submit bail bonds within a period of seven days be dispensed with.

The learned Public Prosecutor argued in support of the impugned order and submit that the petition filed by the petitioner deserves to be dismissed.

I have considered the rival contention of the learned counsel for the parties and perused the record.

Sub-section (2) of Section 438 of the Cr.P.C. provides that when the High Court or the Court of Session makes a direction u/s (1), it may include such conditions in such directions in the light of the facts of the particular case as it may think fit. Sub-section (2) of Section 438 of Cr.P.C. reads as under:

Sub-section (2) of Section 438 of the Code of Criminal Procedure provides 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 -

(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;

(iv) such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section.

[Emphasis supplied]

For a ready reference, sub-section (3) of Section 437 may be reproduced as under -

When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the conditions,--

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) that such 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 or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary.

(Emphasis supplied)

This Court in the case of Smt. Chainraja and Others Vs. State of M.P, elaborately dealt the decision of the Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, and other relevant dictum of the Apex Court in respect of grant of anticipatory bail for a limited period and held that the anticipatory bail may be granted for a limited period. The relevant paras 9 to 16 reads as under:-

As explained by the Apex Court in a recent decision in Rashmi Rekha Thatoi and Another Vs. State of Orissa and Others,

the principle of grant of anticipatory bail for a limited duration in cases of Salauddin Abdulsamad Shaikh Vs. State of Maharashtra, , K.L. Verma Vs. State and Another, , Adri Dharan Das Vs. State of West Bengal, Sunita Devi Vs. State of Bihar and Another, was held to be contrary to the Constitution Bench decision in Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, by a two-Judge Bench in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, and accordingly the said decisions were treated as per incuriam. It is worth noting though the Bench treated Adri Dharan Das (supra) to be per incuriam, as far as it pertained to grant of anticipatory bail for limited duration, yet it has not held that the view expressed therein that the earlier decisions pertaining to the concept of deemed custody as laid down in Salauddin Abdulsamad Shaikh (supra) and similar line of cases was per incuriam.

At this juncture, it is pertinent to note that an excerpt from the judgment in Gurbaksh Singh''s case (supra) was referred to in the cases of Sunita Devi and Adri Dharan to highlight the distinction between an ordinary order of bail and an order u/s 438 of the Code.

In yet another decision rendered in Jai Prakash Singh Vs. State of Bihar and Another etc., the Court has reaffirmed the view expressed in D.K. Ganesh Babu Vs. P.T. Manokaran and Others, and reiterated in State of Maharashtra and Another Vs. Mohd. Sajid Husain Mohd. S. Husain etc., and Union of India (UOI) Vs. Padam Narain Aggarwal etc., that anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enrobed in the crime and would not misuse his liberty.

In Gurbaksh Singh''s case, the Constitution Bench, while expounding a rule of caution that a ''blanket order'' of anticipatory bail should not generally be passed, also proceeded to consider the question as to duration of such an order. Relevant observations made in Para 38 of the judgment are extracted below -

Should the operation of an order passed u/s 438(1) be limited in point of time? Not necessarily. The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an F.I.R. in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under S. 437 or 439 of the Code within a reasonably short period after the filing of the F.I.R. as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time.

Moreover, in Savitri Agarwal and Others Vs. State of Maharashtra and Another, a two-judge Bench of the Supreme Court deduced as many as nine principles from pronouncement in Gurbaksh Singh''s case and the aforesaid guideline was highlighted at serial no. (ix). Incidentally, the decision in Savitri Agarwal''s case was not cited in Siddharam''s case (supra) wherein it has been held that anticipatory bail cannot be granted for a limited period. However, in view of the apparent conflict between the judgment of the Constitution Bench and a two-judge Bench decision in Siddharam''s case, the guiding principle laid down by the Constitution Bench and restated in Savitri Agarwal''s case has to be preferred and accordingly, an anticipatory bail may be granted for a limited period.

Taking into consideration the nature of allegations and other facts and circumstances of the case, but without expressing any opinion on its merits, I am of the view that each one of the applicants deserves to be enlarged on anticipatory bail for a limited period, 1/3rd subject to condition of depositing of the amount of Rs. 11,68,645/-.

The application, therefore, stands allowed and it is directed that, in the event of arrest, each one of the applicants namely Smt. Chainraja, Santosh Kumar Pandey and Anand Tripathi shall be released on furnishing receipt evidencing deposit of Rs. 3,89,548/- with the Janpad Panchayat and also a personal bond in the sum of Rs. 25,000/- incorporating following conditions, with a solvent surety in the like amount to the satisfaction of Arresting Officer -

(i) That she/he shall make herself/himself available for interrogation by a police officer as and when required;

(ii) That she/he 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.

This order shall remain in force for a period of 60 days and in the meanwhile, if the applicants so desire, may move an application for regular bail before the competent Court, which shall be considered by the Court in accordance with law.

In the case of Harnam Singh Vs. State of Madhya Pradesh (M.Cr.C. No. 6212/2012 decided on 31.8.2012), the petitioner had preferred a petition u/s 482 of Cr.P.C. and prayed for dispensing with the condition to move for regular bail before the competent Court immediately after submission of charge-sheet imposed vide order dated 4th November, 2009 passed in M.Cr.C. No. 7147/2009 by this Court wherein following order has been made:-

In this peculiar circumstances of the case and looking to the stage of investigation, I deem it appropriate to grant bail. Therefore, the application is allowed and it is directed that the applicant shall be released on bail by the arresting authority, in the event of his arrest, in connection with crime no. 302/08, on furnishing a bond of Rs. 30,000/- (Rupees thirty thousand only) along with one surety to the satisfaction of the Station House Officer. It is made clear that soon after filing the charge sheet, the applicant would be required to apply for regular bail before the Court below.

This Court allowed the petition. The condition imposed vide order dated 4th November 2009 in Misc. Cri. Case No. 7147/2009 has been dispensed with and ordered that the learned trial Magistrate while taking cognizance in the matter, if thinks appropriate to issue a bailable warrant in conformity with the provisions of sub-section (1) of Section 438 of Cr.P.C.

In the case of Smt. Rajesh Bhatnagar Vs. State of M.P. (M.Cr.C. No. 6686/2012, decided on 3.9.2012), the petitioner filed a petition u/s 482 of Cr.P.C. for seeking clarification in the final order dated 04.11.2009 passed in M.Cr.C. No. 6946/2009, whereby while extending the benefit of anticipatory bail to the petitioner a condition has been imposed that the petitioner will have to apply afresh for regular bail on the occasion of filing of the charge sheet. The condition imposed vide order dated 04/11/2009 passed in M.Cr.C. No. 6946/2009 was dispensed with. However, it was ordered by this Court that the learned trial Magistrate while taking cognizance in the matter, if thinks appropriate to issue a bailable warrant in conformity with the provisions of sub section (1) of Section 438 of Cr.P.C.

It is transpired from a bare perusal of the impugned order dated 15.7.2013 that the Sessions Judge, while allowing the application u/s 438 of Cr.P.C. directed that the accused/petitioner herein be released on bail on furnishing a personal bond in the sum of Rs. 1,00,000/- (Rupees One Lac only) with two solvent sureties in the sum of Rs. 50,000/- each within a period of seven days to the satisfaction of Investigating Officer/Judicial Magistrate. The accused shall abide by the condition as enumerated under Sections 438(2) of Cr.P.C. and 437(3) of Cr.P.C. The petitioner herein/accused unable to furnish the bail bonds within time, and therefore, filed an application for extension of time for submitting bail bonds and the application was considered and dismissed by the Court below vide order dated 23.8.2013. In view of the aforesaid and keeping in view of reasons given by the Court below, I do not find any infirmity in the impugned order dated 15.7.2013 that may call for any interference in exercise of powers u/s 482 of Cr.P.C. This petition is devoid of merit and is, therefore, dismissed.