Giriwar Baitha vs State of Jharkhand

D.N. Upadhyay

Heard the learned counsel for the petitioner and the learned counsel for the State. This is an application for grant of anticipatory bail filed by the petitioner in connection with Meral PS case No. 145 of 2008 for offences registered under sections 341/323/506/307/34 IPC which is pending before Civil Judge (Junior Division) IV, Garhwa.

There is allegation in the FIR that accused persons restrained the informant and caused assault to him by means of lathi.

It is submitted that that during investigation, the petitioner appeared before the investigating officer and he has been granted bail by the Police. At the conclusion of the investigation, charge sheet was submitted under sections 341/323/504/325 IPC but he learned CJM considering the materials in the case diary took cognizance against the petitioner and two named accused for offences punishable under sections 341/323/506/307/34 IPC and directed issuance of warrant of arrest (non-bailable) against the petitioners and others on 7.1.2009. It is submitted that the petitioner was previously on bail and therefore warrant of arrest (non bailable) should not have been issued on the date of taking cognizance, rather, summons was required to be issued. Only because cognizance for non bailable offences was taken, non bailable warrant of arrest cannot be issued.

Learned counsel for the State has opposed the prayer.

I have gone through the impugned order dated 19.1.2009 by which learned CJM has taken cognizance against the petitioner and other accused persons for offences under sections 341/323/506/307/34 IPC. Learned CJM has discussed the evidence collected by the investigating officer in the case diary and also relied upon judgment in the case of Minu Kumari and Another Vs. The State of Bihar and Others, .

It is true that the learned CJM may agree or disagree with the report submitted u/s 173(2) Cr.P.C., but concluding part of the order by which learned CJM has ordered issuance of warrant of arrest (non-bailable) against the accused persons appears to be unacceptable. At the first instance, CJM should have issued summons for appearance of accused persons and there was no occasion for him on the date of taking cognizance to issue warrant of arrest (non bailable) against the petitioner and others against whom cognizance was taken.

Be that as it may, petitioner was previously on police bail, because the investigating officer did not find the occurrence true u/s 307 IPC. Since petitioner had appeared before the investigating officer and he was granted bail by the Police, I do not find this application for anticipatory bail maintainable u/s 438 Cr.P.C.

Accordingly, prayer for anticipatory bail application stands dismissed. It is also evident that cognizance was taken on 19.1.2009 but the petitioner did not appear for more than three years and remained absconding. The petitioner is directed to surrender before the learned court below and seek regular bail which will be considered and disposed of on its own merits without being prejudiced by this order.