Hakam Singh vs State of Punjab

J.S. Sekhon, J.

This Court had already rejected the application for anticipatory bail of the coaccused of the petitioners. As allegations of the complainant, these petitioners alongwith the coaccused had killed a helpless lady. The autopsy reveals that she has died due to asphyxia. The committing Magistrate on taking cognizance of the offence had issued nonbailable warrants against the accusedpetitioners. Instead of appearing before the Magistrate, the petitioners had approached this Court for anticipatory bail after it was rejected by the learned Additional District Judge, Ropar.

Mr. Kalra, learned Counsel for the petitioners relying upon the judgment of the Single Bench of this Court in Balwant Singh and others v. State of Punjab and another, 1983(1) Recent Criminal Reports 470 contends that as per provisions of subsection (3) of Section 438 Cr.P.C. a Magistrate while taking cognizance of the noncognizable offence was required to issue bailable warrants only and not nonbailable warrant. Thus he maintains that the petitioners are entitled to be released on anticipatory bail. The above referred observation was made by the Single Bench while deciding the controversy whether in a case where Magistrate on a complaint had issued nonbailable warrant, an application under Section 38 Cr.P.C. for anticipatory bail is maintainable. In that case, it was not brought to the pertinent notice of the Single Bench that word such person figuring in subsection (3) of Section 438 Cr.P.C., pertains to the person who had already secured anticipatory bail on apprehension of being arrested on an accusation of having committed a nonbailable offence. With utmost respect to the learned Judge. I fail try agree with his observation that under Section 204 Cr.P.C. Magistrate has powers to issue bailable warrants only in a warrant case.

The provisions of Section 438 Cr.P.C. requires reproduction in order to understand the import of subsection (3) thereof in proper context. Section 438 of the Code reads as under :

"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 nonbailable offence, he may apply to the High Court or the Court of Session 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 that Court of Session makes a direction under subsection (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 promises 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 subsection (3) of Section 437, as if the bail were granted under that Section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on 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 against that person he shall issue a bailable warrant in conformity with the direction of the Court under subsection (1)."

A conjoint reading of the entire section leaves no doubt that subsection (1) empowers the High Court or the Court of Session to issue a direction for anticipatory bail when any person having reasonable apprehension that he may be arrested on an accusation of having committed nonbailable offence approaches such Court. It is further clarified that the Court may direct in such cases that in the event of such arrest, the accused shall be released on bail. Subsection (2) empowers the High Court and the Court of Session to impose such conditions in such directions under the facts and circumstances of the particular case including the one enumerated therein while subsection (3) provides that if such person is thereafter arrested, without warrant by an officerincharge of a police station, on such accusation, then he shall be released on bail, if he is prepared to give bail and if a Magistrate decides to take cognizance of such offence against such person, then only bailable warrant in conformity with the direction of the Court under subsection (1) shall be issued. Consequently, there is no escape but to hold that the provisions of subsection (3) only direct the Magistrate to issue nonbailable warrants while taking cognizance of the offence in nonbailable cases against those persons only which had procured anticipatory bail from the High Court or the Court of Session under the provisions of subSection (1) of Section 438 of the Code. By no stretch of imagination, it can be inferred that the provisions of subsection (3) of Section 438 of the Code qualify the powers of the Magistrate in issuing warrants of arrest of an accused person under Section 204 of the Code after taking cognizance of a warrant case. The provisions of Section 204(1) read as under :

(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be

(a) summons case, he shall issue his summons for the attendance of the accused; or

(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summon, for causing the accused to be brought or to appear at a certain time before such Magistrate or it he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) xx xx xx

(3) xx xx xx

(4) xx xx xx

(5) xx xx xx

Clause (b) of subsection (1) of Section 204 of the Code clearly empowers the Magistrate in a warrant case to issue warrants for causing the accused to be brought before him. It has been left to the discretion of the concerned Magistrate whether to issue a bailable warrant or nonbailable warrant because if the legislature intended to circumvent the powers of the Magistrate to issue bailable warrants only then it would have specifically stated so in this provision. Consequently, for the reasons recorded above, there is no force in the contention of Mr. Kalra, that the Magistrate could have issued bailable warrants only.

On merits also, keeping in view the aggravating circumstances of the case under which with murder of Mst. Balbir Kaur suffering from paralysis of the right side was committed by her own kith and kin, no case for anticipatory bail is made out.

JUDGMENT accordingly.