Kundal Majumder vs State of Tripura

B.B. Deb, J.—Heard Mr. P.K. Biswas, learned counsel appearing for the petitioner. Also heard Mr. D. Sarkar, learned Public Prosecutor, Tripura.

By this petition u/s 438 CrPC the petitioner seeks for a direction to release him in the event of arrest in connection with Bikhora PS Case No. 18 of 2001 u/s 498-A I.P.C.

The victim Smti. Sipra Nandi lodged an FIR against her husband and inmates of her-in-law''s house including the petitioner to the effect that after marriage she was subjected to physical and mental cruelty in order to extort un-lawful dowry from her parents'' house.

The learned Public Prosecutor, submits that in the meantime chargesheet has already been filed and the learned Judicial Magistrate took cognizance of the offence and, as such, the petition u/s 438 Cr.P.C. popularly called "anticipatory bail" petition, is not maintainable.

The learned counsel for the petitioner Mr. P.K. Biswas, having referred a Full Bench decision of the Andhra Pradesh High Court in Smt. Sheik Khasim Bi v. The State, reported in 1986 CriL.J. 1303 submits that even after taking cognizance of the offence by the learned Magistrate in a befitting case, anticipatory bail direction could be issued by the Court; of Session or by the High Court u/s 438(1) Cr.P.C.

I have carefully perused the aforesaid judgment, particularly in paragraph 12 thereof wherein the Hon''ble Andhra Pradesh High Court held that the applicability of Section 438 Cr.P.C. would not come to an end even after the Magistrate took cognizance and issued warrant of arrest, but in such a situation the grant of anticipatory bail would not prevent the police from executing the warrant of arrest issued by the Court but the Magistrate to whom the accused appears or is brought under arrest pursuant to the warrant issued by the Court, the learned Magistrate is to release the accused on bail in terms of direction given u/s 438 Cr.P.C. The aforesaid Full Bench decision of Andhra Pradesh High Court on careful consideration was dissented by the learned Single Judge or Sri Ashok Kumar and Others Vs. State of Orissa, The Hon''ble Single Judge of Orissa High Court took aid from the decision rendered by the Apex Court in Salauddin Abdulsamad Shaikh Vs. State of Maharashtra,

On careful study of three sub-sections u/s 438 Cr.P.C., it appears that Sub-section (1) empowers the High Court or Court of Session for issuing such pre-arrest direction, Sub-section (2) deals with the conditions to be imposed at the time of issuing such directions and Sub-section (3) of Section 438 CrPC deals with the procedure to be followed in compliance with the direction issued u/s 438(1) CrPC. For convenience sake the aforesaid Subsection (3) is excerpted below:

" If such person is thereafter arrested without warrant by an officer in charge of a police 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 issued a bailable warrant in conformity with the direction of the Court under Sub-section (1)."

The Sub-section (3) of Section 438 Cr.P.C. postulates that if a person for whom anticipatory bail direction was issued u/s 438(1) Cr.P.C. is arrested without warrant by any Officer-in-Charge of police station, on such accusation, the said arrested person must be released in compliance with the direction issued under Sub-section (1) of Section 438 Cr.P.C. It further postulates that on receipt of chargesheet if the Magistrate taking cognizance decides to issue warrant of arrest, the Magistrate must issue bailable warrant.

From the scheme of the 438 Cr.P.C. it appears that the object of granting pre-arrest bail direction has been embodied in the criminal procedure code only for the purpose of avoiding police harassment in respect of any non-bailable offence. If a person is arrested pursuant to warrant issued by the Court on taking cognizance of an offence, there cannot be any probability of police harassment and or police interrogation, because police is only to comply with the Court''s order and to produce the arrested person before the Court. Having kept the background in mind, the Parliament deliberately used the words "without warrant" in Sub-section (3) of Section 438 Cr.P.C. The said legal aspect was escaped the notice of the Hon''ble Andhra Pradesh High Court is deciding Smt. Sheik Khasim Bi (supra), the Hon''ble Single Judge of Orissa High Court very rightly distinguished the Full Bench decision of Andhra Pradesh High Court and accepted the ratio of Salauddin (supra). With regret I failed to share with the interpretation given by the Hon''ble Andhra Pradesh High Court and gladly share with the enunciation laid down by the Hon''ble Single Judge of Orissa High Court.

Once the competent Court takes cognizance of an offence and issued warrant of arrest, the provision of Section 438(1) Cr.P.C. would cease to operate and in such a situation neither the Court of Sessions nor the High Court could issue any direction u/s 438(1) of the Cr.P.C. If the proposition laid down by the Full Bench of Hon''ble Andhra Pradesh High Court is accepted to be correct, then there would be ajudicial indiscipline. The warrant of arrest issued by the Magistrate cannot be interfered by granting pre-arrest bail direction u/s 438(1) Cr.P.C. unless the legality of the issuance of such warrant of arrest is put under challenge in accordance with the provision of law.

Sub-section (1) of Section 438 Cr.P.C. cannot be read in isolation having ignored the provision of Sub-section (3) thereof. Having taken into consideration the combined effect of Sub-sections (1) & (3) of Section 438 Cr.P.C., I am of the considered opinion that the provision of Section 438(1) Cr.P.C. is applicable only when any person apprehends of being arrested without any warrant being issued by a Court in connection with non-bailable offence during investigation. Once the Magistrate issued process on taking cognizance of offence either acting upon the chargesheet filed after investigation or otherwise the provision of Section 438(1) Cr.P.C. becomes defunct and non-operative.

In that view of the matter, the petition stands rejected.