2018 (10) TMI 2026 - HC - Indian Laws

Seeking grant of anticipatory bail - invocation of inherent power and jurisdiction of this Court under Section 439 (2) read with Section 482 Cr.P.C. - locus standi to file petition - HELD THAT - Even if the issue of locus standi of the petitioner were to be kept aside, this Court finds no merit in the submissions of the petitioner attributing impropriety to the court of sessions in grant of relief to the second respondent by order dated 05.07.2018. The question as to whether the court vested with the power to grant anticipatory bail in terms of Section 438 Cr.P.C. can exercise such jurisdiction against the backdrop of order of the court of cognizance issuing process is not res integra - A division bench of this court, as far back as in November, 1996 in PV. NARSIMHA RAO VERSUS STATE (CBI/SPE) 1998 (4) TMI 503 - SUPREME COURT had answered a reference on precisely the same question of law contrary to what is being canvassed by the petitioner. Pertinent to note that in that case also the petitioner had come up to this Court for grant of anticipatory bail in the wake of summons issued by court of Magistrate against him. The division bench, answering the reference made by a learned single judge had, inter alia, observed that a person against whom accusations of cognizable and non-bailable offence have been made may apprehend arrest by the police or arrest even at the hands of the court. It was noted that the language used in Section 438 Cr.P.C. is clear and unambiguous namely reason to believe that he may be arrested on accusation - It was also noted that Section 438 (3) Cr.P.C. contemplates a situation where the arrest may be apprehended at the instance of the court and, thus, mandates that if such order of cognizance is passed and the Magistrate decides that a warrant should be issued at his instance, such warrant would have to be a bailable warrant in conformity with the direction of the court under Section 438 (1) Cr.P.C. The rulings of the Supreme Court in Bharat Chaudhary Anr. vs. State of Bihar Anr. 2003 (10) TMI 692 - SUPREME COURT and Ravindra Saxena vs. State of Rajasthan 2009 (12) TMI 1063 - SUPREME COURT are sufficient to be quoted as illustration of the law being settled contrary to what is being argued by the petitioner. The petition, thus, is found to be wholly devoid of substance - petition dismissed.

Summary

Issues:
1. Grant of anticipatory bail against the backdrop of summoning order
2. Jurisdiction of court to grant anticipatory bail after issuance of process by the court of cognizance
3. Locus standi of the petitioner to challenge the order of anticipatory bail

Issue 1: Grant of Anticipatory Bail against the Backdrop of Summoning Order

The case involved the death of an individual and subsequent investigation leading to the registration of an FIR under Sections 306 and 498A of the Indian Penal Code. The second respondent sought anticipatory bail, which was granted by the court of sessions. The petitioner, a practicing advocate, challenged this decision on the grounds of impropriety, arguing that anticipatory bail should only be granted when a person anticipates arrest by the police, not when summoned by the Magistrate's Court. However, the court found no merit in the petitioner's submissions and upheld the grant of anticipatory bail.

Issue 2: Jurisdiction of Court to Grant Anticipatory Bail after Issuance of Process by the Court of Cognizance

The court examined whether a court vested with the power to grant anticipatory bail under Section 438 of the Cr.P.C. can exercise such jurisdiction after the court of cognizance has issued process. Referring to a previous judgment, the court clarified that anticipatory bail can be granted even if a person is summoned by the Magistrate's Court, as the law allows for anticipatory bail when there is a "reason to believe that he may be arrested on accusation." The court emphasized that the decision to grant anticipatory bail is based on the merits of the case, not the nature of the order passed by the Magistrate.

Issue 3: Locus Standi of the Petitioner to Challenge the Order of Anticipatory Bail

The second respondent and the respondent State questioned the petitioner's locus standi to challenge the order of anticipatory bail. Despite this, the court proceeded to hear the arguments and found the petitioner's petition to be devoid of substance. Citing Supreme Court rulings, the court dismissed the petition and the application filed along with it.

In conclusion, the High Court upheld the grant of anticipatory bail to the second respondent, emphasizing that the power to grant anticipatory bail can be exercised even after the court of cognizance has issued process. The court also dismissed the petitioner's challenge, citing established legal principles and precedents.