Monday, 16 November 2020

Whether Magistrate can issue an arrest warrant against accused if anticipatory bail granted by High court is in force?

 For the aforesaid backdrop, this Court notices that it is a

case where on remand from the District Judge, the Court has

taken cognizance of the offences relating to allegations under

Sections 418, 420, 465, 467, 468, 471, 406 & 120-B IPC. The

High Court vide its order dated 29.4.2003 had granted

anticipatory bail to the petitioners with the condition that in the

event of arresting the petitioners, they shall be released on bail.

Keeping in view the conditions laid down in Sushila Agarwal &

Others (supra), this Court is of the firm view that the action of

the learned Magistrate from the date, it has taken cognizance and

upto passing of the impugned order dated 3.9.2020 has acted in

clear violation of the orders passed by the High Court after having

granted anticipatory bail. There was no occasion for the learned

Magistrate to have issued the arrest warrants and such course or

power was not available with it in spite of having been given to it.

Learned Magistrate has insisted on issuing of the arrest warrants

and it is also seen that the provisions of Section 362 Cr.P.C.

cannot come into operation while deciding the application under

Section 70(2) Cr.P.C. The action of the learned Magistrate is

clearly wanting and shows scant respect to the High Court’s order

as well as having little knowledge relating to criminal law.

 HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Miscellaneous (Petition) No.4317/2020

 Nanuram Saini S/o Mangal Chand Saini,  Vs  State Of Rajasthan


Coram: HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Order:  09/11/2020

1. Learned counsel for the petitioners submits that the

petitioners were granted anticipatory bail by this Court in the FIR

registered against them bearing No.3/2003 at Police Station

Khetri, District Jhunjhunu under Section(s) 418, 420, 465, 467,

468, 471, 406 & 120-B IPC. The police submitted a Final Report

whereafter protest petition was filed, which was dismissed.

Against the dismissal order of the protest petition, a revision

petition was filed, which was allowed by the learned Additional

Sessions Judge, Khetri and the matter was remanded back to the

Court to pass a fresh order on 18.7.2018, whereafter the learned

Magistrate has taken cognizance on 11.1.2019 and summoned the

petitioners through arrest warrants. The said order of remand was

challenged by the petitioners before the High Court and the High

Court had stayed the said proceedings. Taking into consideration

the order of taking cognizance, the petition was declared

infructuous.

2. Learned Magistrate thereafter again issued arrest warrants.

Learned counsel for the petitioners submits that on coming to

know about the arrest warrants, the petitioners moved an

application informing that they are on anticipatory bail by the

Court and also requested that the arrest warrants should be

converted into bailable warrants in terms of Section 70(2) Cr.P.C.,

however, learned Additional Chief Judicial Magistrate, Khetri

whereby its order dated 3.9.2020 has refused to convert the nonbailable

warrants to bailable warrants on the premise that he does

not have the power to convert the non-bailable warrants to

bailable warrants as it would amount to refuse recalling its earlier

order, which is barred in terms of Section 362 Cr.P.C. and has

further issued arrest warrants on the same day. Learned counsel

submits that issue has been finally decided and put it rest by the

Larger Bench as to the tenure of the anticipatory bail in Sushila

Agarwal & Others Versus State (NCT of Delhi) & Anr. ;

Special Leave Petition (Criminal) No(s).7281-7282 of 2017

decided on 29.1.2020 by the Five Judges Bench and it has been

held that the anticipatory bail granted by the Court shall continue

till the end of the trial.

3. Learned counsel also relies on the judgment passed in the

case of Inder Mohan Goswami & Another Versus State of

Uttranchal & Others reported in AIR 2008 SC 251 to submit

that in the ordinary course, non-bailable warrants ought not have

been issued. It is not a case where the conditions laid down

therein fall for the purpose of issuing non-bailable warrants.

Learned counsel also submits that the petitioners are very old

persons and taking into consideration the overall facts and the fact

that the petitioners were already on anticipatory bail, the order

passed is clearly illegal and without jurisdiction.

4. Learned counsel appearing for the complainant has opposed

the aforesaid submissions.

5. I have considered the submissions as above.

6. In the case of Sushila Agarwal & Others (supra), the

Supreme Court has laid down final conclusion as under:

“In view of the concurring judgments of Justice

M.R. Shah and of Justice S. Ravindra Bhat with Justice

Arun Mishra, Justice Indira Banerjee and Justice Vineet

Saran agreeing with them, the following answers to the

reference are set out:

(1) Regarding Question No. 1, this court holds that the

protection granted to a person under Section 438 Cr.

PC should not invariably be limited to a fixed period; it

should inure in favour of the accused without any

restriction on time. Normal conditions under Section 437

(3) read with Section 438 (2) should be imposed; if there

are specific facts or features in regard to any offence, it

is open for the court to impose any appropriate

condition (including fixed nature of relief, or its being

tied to an event) etc.

(2) As regards the second question referred to this

court, it is held that the life or duration of an

anticipatory bail order does not end normally at the

time and stage when the accused is summoned by the

court, or when charges are framed, but can continue till

the end of the trial. Again, if there are any special or

peculiar features necessitating the court to limit the

tenure of anticipatory bail, it is open for it to do so.

1. This court, in the light of the above discussion in the

two judgments, and in the light of the answers to the

reference, hereby clarifies that the following need to be

kept in mind by courts, dealing with applications under

Section 438, Cr. PC:

(1) Consistent with the judgment in Shri Gurbaksh

Singh Sibbia and others v. State of Punjab, when a

person complains of apprehension of arrest and

approaches for order, the application should be based

on concrete facts (and not vague or general

allegations) relatable to one or other specific offence.

The application seeking anticipatory bail should contain

bare essential facts relating to the offence, and why the

applicant reasonably apprehends arrest, as well as his

1980 (2) SCC 565 side of the story. These are essential

for the court which should consider his application, to

evaluate the threat or apprehension, its gravity or

seriousness and the appropriateness of any condition

that may have to be imposed. It is not essential that an

application should be moved only after an FIR is filed;

it can be moved earlier, so long as the facts are clear

and there is reasonable basis for apprehending arrest.

(2) It may be advisable for the court, which is

approached with an application under Section 438,

depending on the seriousness of the threat (of arrest)

to issue notice to the public prosecutor and obtain

facts, even while granting limited interim anticipatory

bail.

(3) Nothing in Section 438 Cr. PC, compels or obliges

courts to impose conditions limiting relief in terms of

time, or upon filing of FIR, or recording of statement of

any witness, by the police, during investigation or

inquiry, etc. While considering an application (for grant

of anticipatory bail) the court has to consider the

nature of the offence, the role of the person, the

likelihood of his influencing the course of investigation,

or tampering with evidence (including intimidating

witnesses), likelihood of fleeing justice (such as leaving

the country), etc. The courts would be justified – and

ought to impose conditions spelt out in Section 437 (3),

Cr. PC [by virtue of Section 438 (2)]. The need to impose

other restrictive conditions, would have to be judged on

a case by case basis, and depending upon the materials

produced by the state or the investigating agency. Such

special or other restrictive conditions may be imposed if

the case or cases warrant, but should not be imposed

in a routine manner, in all cases.

Likewise, conditions which limit the grant of

anticipatory bail may be granted, if they are required in

the facts of any case or cases; however, such limiting

conditions may not be invariably imposed.

(4) Courts ought to be generally guided by

considerations such as the nature and gravity of the

offences, the role attributed to the applicant, and the

facts of the case, while considering whether to grant

anticipatory bail, or refuse it. Whether to grant or not is

a matter of discretion; equally whether and if so, what

kind of special conditions are to be imposed (or not

imposed) are dependent on facts of the case, and

subject to the discretion of the court.

(5) Anticipatory bail granted can, depending on the

conduct and behavior of the accused, continue after

filing of the charge sheet till end of trial.

(6) An order of anticipatory bail should not be “blanket”

in the sense that it should not enable the accused to

commit further offences and claim relief of indefinite

protection from arrest. It should be confined to the

offence or incident, for which apprehension of arrest is

sought, in relation to a specific incident. It cannot

operate in respect of a future incident that involves

commission of an offence.

(7) An order of anticipatory bail does not in any

manner limit or restrict the rights or duties of the police

or investigating agency, to investigate into the charges

against the person who seeks and is granted prearrest

bail.

(8) The observations in Sibbia regarding “limited

custody” or “deemed custody” to facilitate the

requirements of the investigative authority, would be

sufficient for the purpose of fulfilling the provisions of

Section 27, in the event of recovery of an article, or

discovery of a fact, which is relatable to a statement

made during such event (i.e deemed custody). In such

event, there is no question (or necessity) of asking the

accused to separately surrender and seek regular bail.

Sibbia (supra) had observed that “if and when the

occasion arises, it may be possible for the prosecution

to claim the benefit of Section 27 of the Evidence Act in

regard to a discovery of facts made in pursuance of

information supplied by a person released on bail by

invoking the principle stated by this Court in State of

U.P. v Deoman Upadhyaya.”


(9) It is open to the police or the investigating agency

to move the court concerned, which grants

anticipatory bail, for a direction under Section 439 (2) to

arrest the accused, in the event of violation of any

term, such as absconding, non cooperating during

investigation, evasion, intimidation or inducement to

witnesses with a view to influence outcome of the

investigation or trial, etc.

(10) The court referred to in para (9) above is the

court which grants anticipatory bail, in the first

instance, according to prevailing authorities.

(11) The correctness of an order granting bail, can be

considered by the appellate or superior court at the

behest of the state or investigating agency, and set

aside on the ground that the court granting it did not

consider material facts or crucial circumstances. (See

Prakash Kadam & Etc. Etc vs Ramprasad Vishwanath

Gupta & Anr55; Jai Prakash Singh (supra) State

through C.B.I. vs. Amarmani Tripathi 56 ). This does

not amount to “cancellation” in terms of Section 439

(2), Cr. PC.

(12) The observations in Siddharam Satlingappa Mhetre v. State

of Maharashtra & Ors57 (and other similar judgments) that

no restrictive conditions at all can be imposed, while

granting anticipatory bail are hereby overruled.

Likewise, the decision in Salauddin Abdulsamad Shaikh

v. State of Maharashtra 58 and subsequent decisions

(including K.L. Verma v. State & Anr59; Sunita Devi v.

State of Bihar & Anr 60; Adri Dharan Das v.State of

West Bengal61; Nirmal Jeet Kaur v. State of M.P. &

Anr62; HDFC Bank Limited v. J.J. Mannan 63; Satpal

Singh v.

(2011) 6 SCC 189 (2005) 8 SCC 21 2011 (1) SCC

694 (1996 (1) SCC 667) 1998 (9) SCC 348 2005 (1)

SCC 608 2005 (4) SCC 303 2004 (7) SCC 558 2010

(1) SCC 679

the State of Punjab64 and Naresh Kumar Yadav v

Ravindra Kumar65) which lay down such restrictive

conditions, or terms limiting the grant of anticipatory

bail, to a period of time are hereby overruled.

2. The reference is hereby answered in the above

terms.”


7. In the case of Inder Mohan Goswami & Another (supra),

the Apex Court has laid down the condition that the non-bailable

warrants should be issued observing thus:

“52. Non-bailable warrant should be issued to bring a

person to court when summons of bailable warrants

would be unlikely to have the desired result. This could

be when:

• it is reasonable to believe that the person will not

voluntarily appear in court; or

• the police authorities are unable to find the person to

serve him with a summon; or

• it is considered that the person could harm someone

if not placed into custody immediately.

53 As far as possible, if the court is of the opinion

that a summon will suffice in getting the appearance of

the accused in the court, the summon or the bailable

warrants should be preferred. The warrants either

bailable or non-bailable should never be issued without

proper scrutiny of facts and complete application of

mind, due to the extremely serious consequences and

ramifications which ensue on issuance of warrants. The

court must very carefully examine whether the Criminal

Complaint or FIR has not been filed with an oblique

motive.”

8. For the aforesaid backdrop, this Court notices that it is a

case where on remand from the District Judge, the Court has

taken cognizance of the offences relating to allegations under

Sections 418, 420, 465, 467, 468, 471, 406 & 120-B IPC. The

High Court vide its order dated 29.4.2003 had granted

anticipatory bail to the petitioners with the condition that in the

event of arresting the petitioners, they shall be released on bail.

Keeping in view the conditions laid down in Sushila Agarwal &

Others (supra), this Court is of the firm view that the action of

the learned Magistrate from the date, it has taken cognizance and

upto passing of the impugned order dated 3.9.2020 has acted in

clear violation of the orders passed by the High Court after having

granted anticipatory bail. There was no occasion for the learned

Magistrate to have issued the arrest warrants and such course or

power was not available with it in spite of having been given to it.

Learned Magistrate has insisted on issuing of the arrest warrants

and it is also seen that the provisions of Section 362 Cr.P.C.

cannot come into operation while deciding the application under

Section 70(2) Cr.P.C. The action of the learned Magistrate is

clearly wanting and shows scant respect to the High Court’s order

as well as having little knowledge relating to criminal law.

9. A copy of this order be sent to the Registrar (Vigilance) for

placing it before the concerned Committee to decide what course

of action is required to be done as against such Magistrate.

10. In view of the aforesaid finding and the law laid down by the

Supreme Court, I am inclined to allow this petition and quash the

order dated 3.9.2020 so far as the issue of arrest warrant and

rejecting the application under Section 70(2) Cr.P.C., the

petitioners shall be treated as entitled to all the benefits as

granted by this Court under the anticipatory bail and shall submit

before the Court without submitting any final bail bonds.

11. The criminal misc. petition is accordingly allowed.

12. All the pending applications also stand disposed of.

(SANJEEV PRAKASH SHARMA),J


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