In this post we will discuss the landmark judgment of Punjab and Haryana High Court in which the protest petition is allowed on the ground that the the Additional Sessions Judge having failed to exercise the jurisdiction under Section 438 Cr.P.C., in dismissing the anticipatory bail application of the petitioners despite the fact that it was brought to his notice that they are being prosecuted in pursuance to a fraud committed by the complainant, has passed a totally illegal order.
SECTION 438 Cr.P.C
This view is based on the latest judgment of Punjab and Haryana High Court in the case of Amarjit Singh and others Versus State of Punjab and another decided on 12.01.2021.
OBJECT OF GRANTING ANTICIPATORY BAIL
Right to life and personal liberty is an important right granted to all the citizens under Article 21 of the Indian Constitution and it is considered as one of the precious right. Under Indian criminal law, there is a provision for anticipatory bail under Section 438 of the Criminal Procedure Code 1973.
The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the necessity of introducing a provision in the Code of Criminal Procedure enabling the High Court and the Court of Sessions to grant “anticipatory bail”. This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence. The very basic purpose of insertion of this provision was that no person should be confined in any way until and unless held guilty.
SECTION 438 CR.P.C – 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 non- bailable 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 the Court of Session makes a direction under sub-section (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:
- a condition that the person shall make himself available for interrogation by a police officer as and when required,
- a condition that the person shall not, directly or indirectly, make any inducement, threat or promise 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,
- a condition that the person shall not leave India without prior permission of the court,
- such other condition as may be imposed under sub-section (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 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 be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1).
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WHICH COURTS HAVE ORIGINAL JURISDICTION TO ENTERTAIN ANTICIPATORY BAIL APPLICATION
When a person has an apprehension or reason to believe that he may be arrested for accusation of having committed an offence which is non-bailable in nature, he may apply to High Court or Court of Sessions for direction to the investigating agency, that in the event of arrest he shall be released on bail.
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Brief facts of the case :
- That the petitioners (who are the retired police officials) were posted in Police Station Dehlon, District Ludhiana and had arrested one Hardeep Singh @ Raju, son of Nagender Singh (hereinafter referred to as ‘the complainant’) in FIR No.139 dated 25.08.2005 registered under Sections 15 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘the NDPS Act’).
- When the police party was taking Hardeep Singh @ Raju in a government vehicle to produce him before the Illaqa Magistrate, he escaped from the police custody and another FIR No.140 dated 25.08.2005 was registered against him under Section 224 IPC.
- Thereafter, the complainant filed a criminal writ petition i.e. CRWP No.448 of 2005, praying for issuance of a writ in the nature of Habeas Corpus to produce his son Hardeep Singh, on the pretext that he has been illegally detained by the police in Police Station Dehlon, District Ludhiana. A Warrant Officer was appointed but Hardeep Singh could not be recovered.
- Later on, on 17.09.2005, a dead body of an unknown person was found and its post-mortem was conducted. Thereafter, the complainant alleged that the dead body is of his son and the petitioners/accused have murdered him. This Court directed the Additional Director General of Police (Crime), to get an enquiry conducted and submit a report.
“The Additional Inspector General of Police (Crime) gave a report that the dead body recovered from the pond was not of the son of the complainant and he was alive and was in regular touch with the complainant/father.”
- Thereafter, this Court directed the Sessions Judge, Ludhiana, to hold an enquiry and submit a report about the whereabouts of the son of the complainant. The Sessions Judge submitted an enquiry report on 31.08.2008, holding that the son of the complainant was eliminated by the police while in custody.
- In view of the said report, the aforesaid CRWP No.448 of 2005, was disposed of on 21.05.2010 with a direction to register an FIR against the accused and thus, FIR No.115 dated 21.08.2010 was registered under Sections 302 and 201 IPC at Police Station Dehlon, District Ludhiana. During the investigation of the FIR, an S.I.T. was constituted which again submitted a report that the son of the complainant was alive as no evidence has come against the accused persons and in fact, Hardeep Singh @ Raju had escaped from the police custody. On the basis of the report, a cancellation report dated 31.10.2011 was filed before the Illaqa Magistrate.
- The complainant, thereafter, filed a protest petition on 21.01.2012
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Contention of the Petitioners
- Counsel for the petitioners has, thus, submitted that since both the Courts below i.e. the Judicial Magistrate Ist Class as well as the Additional Sessions Judge-I, Ludhiana, having failed to exercise the jurisdiction vested with them, the petitioners are left with no alternative remedy but to move an application for modification of the order dated 30.09.2019 and to decide the main petition on merits.
- Counsel for the petitioners has further submitted that the Additional Sessions Judge while passing the order dated 22.07.2020 completely ignored that the petitioners are summoned in a protest petition in an FIR (in which cancellation was recommended) for the alleged murder of one Hardeep Singh @ Raju, who is admittedly alive and therefore, in pursuance of the Non-bailable Warrants issued by the Illaqa Magistrate, there was no reason for the Additional Sessions Judge, not to exercise his jurisdiction vested under Section 438 Cr.P.C. and thus, the order of dismissal of the anticipatory bail show that the Additional Sessions Judge, has failed to apply its judicial mind.
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- Counsel for the petitioners has also submitted that the anticipatory bail application was filed as the petitioners intended to appear before the Illaqa Magistrate in pursuance of the summoning order but later on, Non-bailable Warrants were again issued. It is further submitted that even the Magistrate in not disposing of the protest petition, has also failed to exercise the jurisdiction. Counsel for the petitioners has further argued that two reasons given by the Magistrate, are not legally correct as it is wrongly observed that since the predecessor Judge has taken cognizance of the case while passing the summoning order dated 07.12.2017, the Magistrate cannot dismiss the protest petition though the power under Section 239 Cr.P.C., can be exercised.
- Counsel for the petitioners has further submitted that judicial propriety demand that the Magistrate should have passed an order with judicial consciousness as the law does not expressly prohibit to dismiss the protest petition as fraud is committed by the complainant, which vitiates the entire proceedings. Counsel has further submitted that the Court may not to pass an order, which is a mere formality but should pass an order applying judicial mind and to do substantial justice in favour of the petitioners, who are facing the agony of unwanted litigation for the last 15 years.
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Contention of the State
- Counsel for the State on the basis of the affidavit filed by the Commissioner of Police, Ludhiana, as well as the cancellation report has submitted that no fault can be found with the investigation by the State police as it was found during number of enquiries that the son of the complainant is alive, however, the summoning order was passed on the basis of the statement of CW-1 to CW-4, who have deposed in favour of the version of the complainant and the enquiry report of Sessions Judge, Ludhiana indicating the petitioners, that the son of the complainant died in police custody (a fact which is proved to be apparently false and fake).
- Counsel for the State has, thus, submitted that the amount of Rs.2.00 lacs paid as compensation to the complainant be restored back to the State and if any, compensation is to be paid to the petitioners, the same be recovered from CW-1 Satpal Singh, CW-2 Gurdial Singh and CW-4 Naginder Singh (complainant). After hearing the counsel for the parties, I find merit in the present petition.
- It is the consistent stand of the police during the various enquiries that son of the complainant Hardeep Singh @ Raju was alive and was in touch with the complainant and therefore, as per the SIT report and the report under Section 173 Cr.P.C., produced before the Illaqa Magistrate, the police opined that the FIR is liable to be cancelled, however, on the basis of the report of the Sessions Judge, Ludhiana and the statement of CW-1 Satpal Singh, CW-2 Gurdial Singh and CW-4 Naginder singh, the Magistrate has summoned the petitioners treating protest petition as complaint under Section 190 Cr.P.C. in exercise of power under Section 204 Cr.P.C., for the purpose of committing them to the Court of Sessions under Section 209 Cr.P.C.
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Held by the Court:
1.This petition is allowed, the protest petition dated 20.01.2012 filed in case No.45 dated 21.11.2011 under Sections 302/201 IPC read with Section 34 IPC as well as the impugned summoning order dated 07.12.2017 passed by the Judicial Magistrate Ist Class, Ludhiana and the order dated 02.12.2020 passed by the Judicial Magistrate Ist Class, Ludhiana, refusing to dismiss the protest petition are set-aside and the petitioners are discharge in FIR No.115 dated 21.08.2010 registered under Sections 302, 201, 34 IPC at Police Station Dehlon, Ludhiana, District Ludhiana.
- Considering the fact that the petitioners are subjected to unwanted and unnecessary criminal prosecution for a period of last 15 years, it is directed that the State Legal Services Authority, Punjab through District Legal Services Authority, Ludhiana, will pay the costs of Rs.50,000/- each to all the 03 present petitioners namely Amarjit Singh, Jaswant Singh and Kabal Singh within a period of 04 months from today.
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- It will also be open for the prosecution to recover the amount of Rs.2.00 lacs from the complainant namely Naginder Singh or his legal representatives and to recover the costs of Rs.50,000/- each from CW-1 Satpal Singh, CW-2 Gurdial Singh and CW-4 Naginder Singh or their LRs, after paying the same to the petitioners.
- The Additional Sessions Judge-I, Ludhiana, will submit the written synopsis on the exercise of jurisdiction by a Judge under Section 438 Cr.P.C., after going through the judgments, within a period of 30 days to the Director, Chandigarh Judicial Academy.
This post is written by Surbhi Yadav
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