1998 (3) TMI 711 - HC - Indian Laws

Summary

Issues Involved:
1. Applicability of anticipatory bail under Section 438 Cr.P.C. when a non-bailable warrant has been issued by a Magistrate.
2. Jurisdiction of Sessions Court to entertain an application for anticipatory bail after a Magistrate has issued a warrant.
3. Merits of the case regarding the petitioner's entitlement to anticipatory bail.

Issue-Wise Detailed Analysis:

1. Applicability of anticipatory bail under Section 438 Cr.P.C. when a non-bailable warrant has been issued by a Magistrate:

The primary issue was whether anticipatory bail under Section 438 Cr.P.C. can be granted when a non-bailable warrant has been issued by a Magistrate. The Additional Sessions Judge held that the provisions of Section 438 Cr.P.C. do not apply when the arrest is apprehended in execution of a warrant issued by a Magistrate. This was based on the judgment of the Bombay High Court in Ambalal P. Rashamwala v. State of Maharashtra, which stated that anticipatory bail cannot be granted after a Magistrate has issued a warrant.

However, the petitioner's counsel argued that this view is contrary to several judgments from other High Courts, including the Full Bench decision of the Andhra Pradesh High Court in Smt. Sheik Khasim v. State, which held that the High Court and Sessions Court have the power to grant anticipatory bail even after a Magistrate has issued a warrant. The Full Bench of the Andhra Pradesh High Court, after considering the relevant provisions of the Criminal Procedure Code and various case laws, concluded that the filing of a charge-sheet and the issuance of a warrant by a Magistrate do not end the power to grant anticipatory bail under Section 438(1) Cr.P.C.

2. Jurisdiction of Sessions Court to entertain an application for anticipatory bail after a Magistrate has issued a warrant:

The judgment further discussed the jurisdiction of the Sessions Court to entertain an application for anticipatory bail in such circumstances. The petitioner's counsel cited multiple judgments supporting the view that the Sessions Court has the jurisdiction to grant anticipatory bail even when a warrant has been issued by a Magistrate. These included decisions from the Calcutta High Court, Delhi High Court, Madhya Pradesh High Court, and Punjab and Haryana High Court, all of which supported the view that the power under Section 438 Cr.P.C. is not extinguished by the issuance of a warrant by a Magistrate.

The judgment emphasized that the apprehension of arrest, whether at the hands of the police or at the instance of a Magistrate, entitles a person to seek anticipatory bail. The court concluded that the reasoning of the Additional Sessions Judge, which restricted the application of Section 438 Cr.P.C. based on the source of the arrest warrant, was not aligned with the broader judicial interpretations and provisions of the Criminal Procedure Code.

3. Merits of the case regarding the petitioner's entitlement to anticipatory bail:

On the merits, the court noted that the petitioner had already been released on bail for the same incident, and the new complaint was lodged after a significant delay of two and a half years. The petitioner, being a government employee, had a low likelihood of absconding or tampering with evidence. The court found that there was no substantial risk of the petitioner interfering with witnesses at this late stage.

Given these circumstances, the court determined that the petitioner deserved to be granted anticipatory bail. The court ordered that in the event of the petitioner's arrest based on the non-bailable warrant issued by the Magistrate, he should be released on bail upon furnishing a PR Bond of Rs. 5,000 with one surety of the same amount. The petitioner was also allowed to deposit cash until the surety was furnished to the satisfaction of the Magistrate.

Conclusion:

The judgment concluded that the Sessions Court and High Court have the jurisdiction to grant anticipatory bail under Section 438 Cr.P.C. even after a Magistrate has issued a warrant. The petitioner was granted anticipatory bail based on the merits of the case, considering the delay in lodging the complaint and the petitioner's government employment status. The application for anticipatory bail was allowed, and the petitioner was ordered to be released on bail upon arrest, subject to the specified conditions.