Guddi Mst. vs State of Madhya Pradesh

K.K. Varma, J.

This is an application u/s 482, Cr.P.C., impugning an order dated 9-5-91 passed by Smt. Kanaklata Sonkar, Judicial Magistrate First Class, Gwalior.

The order granted bail u/s 437, Cr.P.C., to non-applicant No. 3, Prem Sunder, father-in-law of Petitioner Mst. Guddi, widow of Bhagwandas in respect of Crime No. 20/91 (P.S. Mahila Padav, Gwalior), registered under Sections 406 and 498-A, IPC, on the report of applicant Mst. Guddi.

Earlier an application (B. A. No. 1007/91) made by non-applicant No. 3, Prem Sunder, u/s 438/1, Cr.P.C. had been dismissed by the Sessions Judge, Gwalior, on 7-5-1991.

On 9-5-91, non-applicant No. 3, Prem Sunder along with his counsel Shri Praveen Mishra appeared before the learned Magistrate with an application under Sub-section (2) of Section 44 of Cr.P.C. A copy of the application was furnished to the Assistant Public Prosecutor. The ordersheet recites that Shri Praveen Mishra, Advocate, and the Assistant Public Prosecuter were heard. The ordersheet went on to say that the accused was being taken into custody and the judicial remand upto 13-5-91 was being granted with a direction that he be sent to jail custody. The learned Magistrate took up the application for bail u/s 437, Cr.P.C. The Assistant Public Prosecutor requested that a police Kaifiat be called for. Shri Mishra, Advocate; submitted that Prem Sunder (aged 50) was suffering from asthma. A photostat copy of the medical certificate was placed before the learned Magistrate, who Remarked that in the kaifiat received in the case of the bail application of the remaining accused persons, Prem Sunder''s name did find a place in the array of accused persons. The learned Magistrate, therefore, said that she did not think it necessary to call for another kaifiat. Taking into consideration the fact that Prem Sunder was a patient of asthma, the learned Magistrate admitted him to bail.

I have heard applicant''s learned Counsel Shri Arun Pateria, Advocate, learned Dy. Government Advocate Shri C. S. Dixit and Shri Praveen Mishra, learned Counsel for the non-applicant No. 3.

Shri Arun Pateria submitted that the learned Magistrate had no jurisdiction to grant bail to Prem Sunder, u/s 437, Cr.P.C. because he had not been arrested by the Police The learned Counsel relied on Bhramar v. State of Orissa 1961 Cri. L. J. 1057 (Orissa.).

The relevant portion of Sub-section (I) of Section 437, Cr.P.C. runs as follows:

When bail may be taken in case of non-bailable offence.-(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Sessions, he may be released on bail.

(Emphasis supplied)

In the aforementioned context, the learned Judge was of the following view:

.....the expressions ''appears'' is used in relation to the issue of a summons. Sections 238 and 244, Cr. P. C, which relate to trial of warrant cases by Magistrate also use similar expressions. There expressions appear to have been used in the same sense in Section 437, Cr.P.C.

''Appearance'' is also possible in two other ways. If a Magistrate issues a bailable warrant and the officer to whom the warrant is directed, releases an accused on his furnishing a bail-bond, he is required to attend the Court on the date fixed. In such a case, he appears in Court in compliance with the bail-bond furnished by him. Similarly, a person, knowing that a warrant or summons has been issued against him may voluntarily surrender and, thus, submit himself to the jurisdiction of the Court. Evidently in such cases, the accused is under a restraint and he appears and moves for being enlarged on bail. If, however, he has not been arrested nor detained nor any process has been issued against him from the Court, he cannot be said to be under a restraint and no bail will be granted to him merely because he appears before the Court and prays for grant of bail in anticipation of any such action against him.

The aforementioned exposition of the cannot action of the expression ''appears'' in Sub-section (1) of Section 437, Cr.P.C., implies that a person may finding himself in the two situations posited above but not otherwise voluntarily surrender himself in, and to the jurisdiction of Magistrate''s Court, and then, make an application for bail under Sections 436 and 437, Cr.P.C.

An examination of the aforementioned proposition of law has to be preceded by a statement of the appropriate setting. Section 2 (n) of the Code of Criminal Procedure, 1973 (Act No. II of 1974)-hereinafter "the Code"- defines "offence" as any act or omission made punishable by any law for the time being in force. (The reference to a complaint u/s 20 of the Cattle-trespass Act, 1871 has been left out here). Section 2 (c) of the Code defines "cognizable offence", an offence for which, and "cognizable case" means a case in which, a police officer, may in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. Section 2 (a) of the Code defines "bailable offence" and "non-bailable offence" as follows:

(a) "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence.

An Officer-in-Charge of Police Station may have information relating to the commission of a cognizable offence on its being given to him by an informant. The Police Officer has to reduce the information in writing and read it over to the informant and it is required to be signed by the informant. The Officer-in-Charge of Police Station or any other officer may, however, come to know of the commission of any cognizable offence in any other manner as well.

Clause (a) of Sub-section (1) of Section 41 in Chapter v. (Arrest of Persons) says that any Police Officer may, without an order from a Magistrate and without a warrant, arrest any person who had been concerned in any cognizable offence, Or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned.

The Police may, in exercise of their power under Clause (a) of Sub-section (1) of Section 41, arrest any person in respect of cognizable and non-bailable offence is their any legal dutycast upon that person to Court arrest at the hands of the Police. To put it in another way, whether the accrual of the powers to the Police under Clause (1) of Sub-section (1) of Section 41 of the Code as against the aforementioned person has any co-relative liability on the person in question to place himself under arrest at the hands of the Police. Now, the Code nowhere requires such a person to give himself upto the Police. He may, however, of his own will, give himself "upto the Police. That is, he has the liberty not to give himself upto the Police or give himself upto the Police for being arrested for the commission of a cognizable offence.

In fact, the provisions of Sub-section (1) of Section 438 of the Code gave our offender an opportunity to make an application to the High Court or the Court of Session for getting a direction from and in the discretion of the Courts in question that in the event of his arrest, he shall be released on bail In other words, the offender has a tatutory claim upon the Courts in question to consider his prayer in terms of Sub-section (1) of Section 438, and the effect of the aforementioned provisions underscores the existence of the liberty of a person accused or suspected of the commission of a non-bailable offence of the exercise of his choice whether or not to Court arrest at the hands of the police. The fate of an application under Sub-section (1) of Section 438 of the Code, i. e., whether it may be granted or rejected leaves his aforementioned liberty sacrosanct.

Now. Sub-section (2) of Section 44 of the Code comes into play in the case at this stage. To see it in its context, Sub-section (1) of Section 44 of the Code also needs a look at it Section 44 runs as follows:

Arrest by Magistrate:

( )(sic) When any offence is committed in the presence of a Magistrate, whether executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.

(2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within, his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

Hence, when NA 2 moved a composite application to exercise his powers under Sub-section (2) of Section 44 and Sub-section (1) of Section 437, he was not only exercising his liberty to Court arrest at the hands of the Judicial Magistrate for the non-bailable offence in question but also he was submitting for the consideration of the Magistrate, his plea for being admitted to bail under Sub-section (1) of Section 437 on the supposition that the offer of his arrest was going to be accepted by the Magistrate in the exercise of his powers under Sub-section (2) of Section 44.

There is nothing in Sub-section (2) of Section 44 to suggest that the powers contained therein have to be exercised by the Magistrate with an eye towards the powers of the Police under Clause (a) of Sub-section (1) of Section 41 of the Code. The powers of the Magistrate are not pre-conditioned or restricted by the powers of the police under Clause (a) of Sub-section (1) of Section 41 of the Code. Hence, the learned Magistrate was perfectly within her powers in accepting the offer made by NA 3 for his arrest, and in causing him to be arrested, in her presence, within her jurisdiction in respect of a non-bailable offence for which she was competent at the time and in circumtances to issue a warrant of arrest. As such, it is a clear case where a person-accused or suspected of the commission of a non-bailable offence-appearing before a Judicial Magistrate, otherwise than upon being served with a summons issued by the Magistrate or after having admitted to bail in pursuance to a bailable warrant of arrest issued by Magistrate, and surrendering himself to the custody of the Magistrate, and the Magistrate causing his arrest made in the circumstances spelled out in Sub-section (2) of Section 44.

This takes us to the prayer of NA 3 for the consideration of his plea for being admitted to bail under Sub-section (1) of Section 437, the provisions of which do not contain any words to restrict or qualify the plain meaning of the expression "appears" occurring therein in the sence construed in Bharmar and Another Vs. State of Orissa, Hence, NA 3 had the statutory right under Sub-section (1) of Section 437 for making a prayer to the Magistrate to entertain his plea for being admitted to bail under those provisions. In the result, 1 do not agree-without most respect-with the proposition of law propounded in the aformentioned ruling. I hold that the learned Magistrate rightfully assumed jurisdiction in entertaining NA''s application under Sub-section (1) of Section 437 of the Code in the admitted circumstances of the case, (vide, paragraph 4, supra).

Shri Arun Pateria submitted that the learned Magistrate acted with material irregularity in not calling for the police diary or a report from the investigating police. Now, the learned Magistrate stated that she had already had a report from the police about all the accused persons (inclusive of NA 3). As such, the learned Magistrate''s exercise of her discretion in not sending for the police case diary or a fresh report of the investigating police could not be regarded as an act of material irregularity in the consideration of the bail application that day. Moreover, she had heard the learned A. P. P. on the bail application. She acted upon the medical certificate and accepted it to reach the finding that NA 3 was a patient of asthma. She could so use the medical certificate and reach the finding and admit NA 3 to bail on the ground that he was a sick man. I am, therefore, of the view that the order does not admit of interference by this Court in the exercise of its inherent powers u/s 482 of the Code. The petition filed by complainant Smt. Guddi is, therefore, dismissed.