Manmohan Singh and others vs State of Punjab

This petition u/s 482 of Cr.P.C. has been filed for seeking clarification/modification of the order dated 2-5-1998 Annexure P-1 passed by the learned Additional Sessions Judge, Ludhiana, placing reliance on certain decisions while dealing with the case F.I.R. No. 46 dated 29-1-1998 under Sections 452/506/294/148/149 IPC., Police Station Sahnewal, passed the order on 2-5-1998, the operative part of which reads as under :-

"....... I order that in the event of their arrest the applications shall be released on anticipatory bail to the satisfaction of the Arresting Officer or the S.H.O. Concerned with the conditions that the applicants shall not tamper with the prosecution evidence; that they shall assist the police during investigation and shall not leave the State of Punjab without the prior permission of the Court/Illaqa Magistrate. This order is valid for three weeks only during which the applicants shall apply for regular bail before the competent Court. It is also made clear that during the period of anticipatory bail police remand of the accused can be obtained

Provisions of Sections 438 Cr.P.C. came to be considered by the Supreme Court in Salauddin Abdulsamad Shaikh Vs. State of Maharashtra, their lordships of the Supreme Court while interpreting the provisions of Section 438, Cr.P.C. observed that "It is, therefore, necessary that such an anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or charge sheet is submitted. An order of anticipatory bail could even be obtained in cases of serious nature as for example murder and, therefore, it is essential that the duration of that order should be limited and ordinarily the Court granting anticipatory bail should not substitute itself for the original Court which is expected to deal with the offence. It is that Court which has then to consider whether, having regard to the material placed before, it, the accused person is entitled to bail.

Their lordships of the Supreme Court were pleased to clarify the order passed in Salaudin Abdulsamad Shaikh''s case (supra), and in K. L. Verma v. State 1997 (1) RCR 493 in para 3 it was observed by the apex Court as under :

We have carefully examined both the orders of 9th and 11th October, 1996 and have also heard counsel for the accused as well as counsel for the CBI and we are of the opinion that the proper course for the High Court was to decide on the question of the requirement of sanction and if the High Court could not do so, to have stayed further proceedings till that vital ''question was answered. On the other question emanating from the order dated 9th October, 1996, we find that the High Court placed reliance on this Court''s decision in Salauddin Abdulsamad Shaikh Vs. State of Maharashtra, , which was a case in which the High Court, while granting interim anticipatory bail imposed certain conditions one of which was that the accused should move for regular bail before the Court which was in seisin of the case pending against him. The High Court also observed that the application should be disposed of uninfluenced by the observation made in earlier order. The SLP was directed against that order of the High Court. While dealing with that order, this Court observed that u/s 438 of the Code, when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, the High Court or the Court of Session, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and in passing that order it may include such conditions as it may deem appropriate. This Court further observed that anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular Court which is to try the offender, is sought to be by passed. It was, therefore, pointed out that it was necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of the duration of extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge sheet is submitted. By this, what the Court desired to convey was that an order of anticipatory bail does not enure till the end of trial but it must be of limited duration as the regular Court cannot be bypassed. The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular Court for bail and to give the regular Court sufficient time to determine the bail application. In other words, till the bail application is disposed of one way or the other Court may allow the accused to remain on anticipatory bail. To put it differently anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher Court, if they so desire. The decision was not intended to convey that as soon as the accused persons are produced before the regular Court the anticipatory bail ends even if the Court is yet to decide the question of bail on merits. The decision is Salaudin''s case (supra) has to be so understood.

In the aforesaid judgments, there is no dicta of the apex Court that while dealing with a petition u/s 438 of the Code of Criminal Procedure, the Court of Session or the High Court may leave to the police that during the period of anticipatory bail, it may obtain remand of the accused. It can also not be so spelled out from the provisions of Section 438, Cr.P.C.

Provisions of Section 167, Cr.P.C. may be noticed which envisages the procedure when investigation cannot be complied within 24 hours fixed by Section 57, Cr.P.C. This provision empowers the Magistrate to authorise the detention of the accused persons otherwise than in the custody of the police beyond the period of 15 days i.e. for 90 beyond/60 days as the case may be, if he is satisfied that adequate grounds exist for doing so. A plain reading of Section 167, would further show that it comes into play only if the accused is in custody of the police. If the police is otherwise to obtain remand of the accused during the period of anticipatory bail that would be against the intent and content of the provisions of Section 438, Cr.P.C. which is a special provision incorporated in the Code of Criminal Procedure which can be invoked only where the apprehended accusation relates to cognizable/non-bailable offence, if the facts and circumstances of each case so require. No doubt, the provisions of Section 438, Cr.P.C. do not circumscribe the powers of a Magistrate u/s 167, Cr.P.C. but at the same time the provisions of Section 167, Cr.P.C. cannot be introduced or read into the provisions of Section 438, Cr.P.C. If the order granting anticipatory bail is impregranted with such a condition that would totally eclipse the order granting anticipatory bail. If during the currency of anticipatory bail, police is authorised to take the accused in custody and seek remand that would be negating the order granting anticipatory bail and that would amount to giving with one hand and to take away with the other. Therefore, the condition incorporated in the order dated 2-5-1998 that the police may obtain remand of the accused during the period he is on anticipatory bail is uncalled for, unwarranted and not permissible under the law. It appears that misreading and misunderstanding of the law laid down by the apex Court in Salauddin Abdulsamad Shaikh''s and K. L. Verma''s cases (supra) led the Additional Sessions Judge to incorporate the impugned condition in the order dated 2-5-1998.

For the reasons recorded above, this petition is allowed and the impugned condition in the order dated 2-5-1998, referred to above, is quashed and the order dated 2-5-1998, is modified to the extent indicated above.

Petition allowed.