Jai Parkash vs State of Haryana and ors.

Surinder Singh, J.

The present petition has been filed by Jai Parkash under Section 438, Code of Criminal Procedure, with a prayer for the issue of a direction that in the event of his arrest, the petitioner shall be enlarged on bail. At the Motion Stage, notice was issued to respondent No. 1 i.e. the State of Haryana through the Advocate General, Haryana, and an interim order was passed that the petitioner be admitted to bail to the satisfaction of the Chief Judicial Magistrate, Karnal meanwhile and he is directed not to leave India during this period.

During the pendency of the present petition Shri K.C. Kukreja (arrayed as respondent No. 2 in the petition) who is the complainant in the case before the trial Court, filed an application for being allowed to beheard in this matter. This application was considered along with the present petition. As the application was not opposed by the other parties, the same was allowed in terms of the prayer made by the applicant in person, for affording him a hearing in the matter.

Two points have arisen for consideration in this petition. The first point emanates from an objection raised by Shri Kukreja that nonbailable warrants having been issued against the petitioner by the trial Court, no relief by way of grant of anticipatory bail could be claimed by the petitioner. The point in not res integra. A Division Bench of this Court had the occasion to deal with the same in a recent decision reported in Puran Singh v. Ajit Singh and another, 1984(2) RCR(Crl.) 532 (P&H) : 1985, Criminal Law Journal 897 . It was held that the grant of bail under Section 438(1), Code of Criminal Procedure, is not dependent on the order of the Magistrate choosing to summon an accused through bailable or nonbailable warrants, as the main governing factor for the exercise of jurisdiction under Section 438, is the apprehension of arrest by a person accused of the commission of a nonbailable offence. It was further amplified that the section makes no distinction whether the arrest is apprehended at the hands of the police or at the instance of the Magistrate. Rather, the issuance of a warrant by the Magistrate against a person justifiably gives rise to such an apprehension and well entitles a person to make a prayer for his anticipatory bail. The contention raised in the said case that the Court had no jurisdiction to grant anticipatory bail in the wake of issue of warrants of arrest by the trial Court, was, thus, rebelled. The Division Bench pointedly overruled the earlier Single Bench decision in Ram Lal v. The State of Punjab and others, 1976 CLR (Punjab and Haryana) 388, in which the view taken was that once bailable warrants are issued by the Magistrate, there was no scope for invoking powers of the High Court or Sessions Court for the grant of anticipatory bail. I am bound by the authority of the Division Bench.

Coming now to the advisability or otherwise of the grant of direction prayed for, it is not out of place to mention that the learned Additional Advocate General, appearing for the State of Haryana (Respondent No. 1) did not oppose the present petition, rather conceded that the relief prayed for may be granted. The prayer was, however, opposed by Shri Kukreja, respondent No. 2, who sought to seek support by citing Gurbaksh Singh Sibbia etc. v. The State of Punjab, and Sarbjit Singh and another v. The State of Punjab, AIR 1980, Supreme Court 1632, which is hardly of any benefit to the said respondent. The authority lays down certain guidelines in regard to the amplitude of judicial discretion given to the High Court and the Court of Session, while passing an order of anticipatory bail.

After hearing the parties, I find that the petitioner has a reasonable belief he would be arrested in view of the order of the trial Court issuing nonbailable warrants for his arrest in the very first instance. There could be no better proof of a reasonable belief entertained by the petitioner regarding his arrest.

In the present petition, it would not be desirable, at this stage, to express any opinion in regard to the merits of the case. The fact remaining that the incident in question is alleged to have taken place on May 28, 1981 and the proceedings in the complaint filed by respondent No. 2 have been going on for the last three years in the Court of the Chief Judicial Magistrate, Karnal. It was by means of an order passed on February 17, 1984 that nonbailable warrants against the petitioner were issued on the very first date when he was summoned in the case. In such circumstances, the petitioner is entitled to the relief of anticipatory bail, more so when this prayer is not opposed on behalf of the State. It is, therefore, directed that in the event of his arrest, the petitioner shall be released on bail to be satisfaction of the Arresting Authority. The petitioner, shall not leave the country without the prior permission of the Court till the conclusion of compliant case.

Criminal Miscellaneous Application No. 3446M of 1985 is disposed of accordingly.

Miscellaneous disposed of.