Monday, 22 February 2021

Whether court in whose jurisdiction accused is apprehending arrest may apply for transit bail even if the offence is committed in another court's jurisdiction?

According to my view, the law laid down by the Division Bench

of this Court in N.K. Nayar’s case (supra) would then be applicable, wherein it has been observed -

“While considering the question as to whether the provisions of

Section 438 of the Code of Criminal Code, 1973 can be utilized by

this Court when the case or the contemplated criminal proceedings

would be in some other State, has held that, if arrest is likely to be

effected within the jurisdiction of this Court, the concerned person

should have the remedy of applying to this Court for anticipatory bail

even if offence might have been committed in some other State. It is

further observed that, consequently this Court would have jurisdiction

if a person is likely to be arrested at a place within the jurisdiction of

this Court.”

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

965 ANTICIPATORY BAIL APPLICATION NO.154 OF 2021

SHANTANU SHIVLAL MULUK Vs THE STATE OF MAHARASHTRA


CORAM : SMT. VIBHA KANKANWADI, J.

DATE : 16th FEBRUARY, 2021.


1 Heard learned Advocate appearing for the applicant. Learned

APP waives notice for respondent/State. The applicant is seeking transit

anticipatory bail in connection with Crime No.49/2021 registered at Police

Station, Special Cell, New Delhi, for the offence punishable under Section

153-A and 120-B of the Indian Penal Code.

2 The learned Advocate for the applicant submits that the

applicant is resident of Beed and the offence has been registered at New

Delhi. It would take time for him to reach to New Delhi and engage an

Advocate and to file an application for anticipatory bail. He also submits that


the matter pertains to the three disputed farmers’ laws , which was

introduced as an ordinance. The farmers are protesting since September,

2020. Some online foundations, who are supporting the protests by farmers

had come together. Indian environmental and Farmer’s co-alliation was

joined by XR India. Present applicant is one of the founder member and it is

stated that XR India is working for environment for long time. A platform

was created. Various information was displayed on ongoing protest. The

learned Advocate for the applicant further submitted that later on a platform

has been created, which is now known as Took Kit, wherein one could get at

one place, links to all the movements and protests and the links to the

website of the participating foundations. It was transpired that one Ask India

Why Foundation was handled by poetic justice foundation from Canada.

There was a link to Ask India Why Foundation page on the took kit and it is

stated that once that page was opened there was link to the poetic justice

foundation, and once that page was opened there was a link having reference

to the Khalistan movement and now the State is calling all those activities as

terrorists activities and under those circumstances the Delhi police have

lodged First Information Report against unknown persons. The applicant is

apprehending his arrest in connection with the said offence. He requests that

sufficient time be given to approach the competent Court for seeking

appropriate relief.


3 Learned APP has taken objection about filing of the application

in this Court, the jurisdiction of this Court and also the fact that even the

copy of the FIR has not been annexed in order to come to the conclusion that

the applicant has any kind of apprehension of arrest. It is also submitted that

if the applicant is having apprehension of arrest at the hands of Delhi Police,

then the Delhi Police ought to have been made party to the proceedings.

Reliance has been placed on the decision by this Court at Principal Seat in

Augustine Francis Pinto and Others vs. The State of Maharashtra and Others,

MANU/MH/2187/2017, wherein it has been held that jurisdiction for control

and inquiry of Criminal Courts should be local commission of crime and not

residence of accused nor place where he might choose to reside and found in

other part of country. Under the facts of the case before the Court then, it

was held that the petitions for transit anticipatory bail were held to be not

maintainable.

Reliance was placed on the decision in Sandeep Sunilkumar

Lohariya vs. Jawahar Chelaram Bijlani and Suresh and Others, [order dated

01.08.2013 passed in Special Leave to Appeal (Cri.) No.4829 of 2013] by

Hon’ble Supreme Court.

He further submitted that the observations have been made in

Augustine Francis Pinto’s case that in view of Sandeep Sunilkumar Lohariya’s


case the view expressed by the Division Bench in N.K. Nayar and others vs.

The State of Maharashtra [MANU/MH/0534/1985], does not hold the

ground, and therefore, relying upon Sandeep Lohariya’s case (supra) and

Augustine Francis Pinto’s case (supra) he prayed for the rejection of the bail

application.

4 At the outset, it is to be noted that the apprehension of arrest is

the key factor, that is, required to be considered in such applications and even

in catena of Judgments, the Hon’ble Apex Court has stated that filing of copy

of the FIR is not mandatory. The applicant in the application has given

reasons as to why he is apprehending his arrest and that is sufficient. The

FIR is lodged at New Delhi and any regular application for anticipatory bail

under Section 438 of the Code of Criminal Procedure would be considered by

Delhi High Court, and therefore, this Court cannot go into any of the merits

of the case. The only fact that is required to be considered as to whether the

applicant can be granted liberty by way of transit bail to approach to the

competent authority for seeking appropriate relief.

5 Applicant is apprehending his arrest at Beed. It is submitted that

officers from Delhi Police are already in Beed. They will have to take help of

local police for any operation to be conducted in the investigation at Beed.

Under such circumstance, application cannot be rejected only on the ground


that Delhi Police are not party to this application. The purpose of the bail

application would itself get frustrated.

6 In Augustine Francis Pinto’s case the observations those were

made by Hon’ble Apex Court in its order dated 14.06.2013 were considered.

The said order passed by Hon’ble Apex Court is made available by learned

APP. Following observations were made by the Hon’ble Apex Court -

“It is difficult to comprehend under what provisions and under

what authority of law such an application was even registered by the

High Court of Madhya Pradesh. In our view it is an absolutely

shocking order which has been brought to the notice of this Court,

hence we deem it appropriate to direct the Petitioner-State of

Maharashtra as also the Petitioner-complainant/son of the deceased

to implead the High Court of Madhya Pradesh in these petitions.

Thereafter a notice be issued to the High Court of Madhya Pradesh

through the Registrar indicating to file reply as to how the bail

application of the respondent no.1/accused was even registered by

the High Court before it was taken up by the Bench and also as to

whether the Bench was apprised of the fact of rejection of his

anticipatory bail application by the High Court of Bombay, which was

upheld by the Supreme Court of India on two occasions.”

But thereafter the said matter was listed for further arguments

on 12.07.2013 before Hon’ble Supreme Court. Under those circumstances

upon the query made to learned APP he submitted that he could get the last


order from the website of the Apex Court in connection with the said case

was passed on 01.08.2013, wherein following observations have been made.

“The order passed by the High Court was in regard to a transit

bail and the observations made by this Court in the order dated 14th

June, 2013 were with regard to anticipatory bail and hence the

observations made by this Court in the order dated 14th June, 2013 or

in any other order passed by this Court in these matters, will not

prejudice in any way the claim of the respondent No.1 for either

temporary or regular bail before the Trial Court or the High Court

which may be decided on its own merits.

We also make it clear that observations in the order

passed by this Court on 14th June, 2013 or in any other order in these

cases will also not cause any prejudice to the claim of any other

accused in this matter for anticipatory or regular bail before the High

Court or any other appropriate Court.

The special leave petitions as also the criminal

miscellaneous petitions stand disposed of.

W.P. (CRL) No.83 of 2013.

List this writ petition after two weeks.”

7 It will not be out of place to mention here that in the order

passed on 14.06.2013 by the Hon’ble Supreme Court the respondent No.1-

accused therein was directed to surrender before the Trial Court in State of

Maharashtra and that order came to be passed in view of the observation that

the application for anticipatory bail filed by that accused was rejected by this


Court and that rejection was upheld by Hon’ble Supreme Court on two

occasions. But then in the order dated 01.08.2013 it has been mentioned

that in view of the said order dated 14.06.2013 the respondent No.1 had

surrendered, and therefore, the Special Leave Petitions have become

infructuous.

8 Facts before Hon’ble Supreme Court in Sandeep Lohariya’s case

were that the offence under Section 302, 120-B read with Section 34 of the

Indian Penal Code and Section 3 and 25 of the Indian Arms Act took place at

Police Station, Washi, Navi Mumbai, Maharashtra. Then the respondent No.1

(accused) before Hon’ble Supreme Court had approached this Court and his

application for anticipatory bail was rejected on 25.02.2013. The said order

was upheld by Hon’ble Supreme Court in Special Leave Petition (Cri.)

No.2790 of 2013 dated 29.04.2013. Thereafter, again second Special Leave

Petition also came to be dismissed on 13.05.2013. It appears that by

suppressing those facts the accused had filed application for transit

anticipatory bail which came to be entertained by High Court of Madhya

Pradesh. No doubt, it is observed by Hon’ble Supreme Court that,

“Thereafter, the respondent no.1/accused appears to have filed an

application for anticipatory bail in the nature of transit bail, which in our

view has no provision under the Code of Criminal Procedure, 1973.”


9 Though the observations of Hon’ble Supreme Court are binding

on this Court, here in view of the fact that the matter was adjourned and

then Hon’ble Supreme Court while passing further order in the same matter

observing that, “we also make it clear that observations in the order passed

by this Court on 14th June, 2013 or in any other order in these cases will also

not cause any prejudice to the claim of any other accused in this matter for

anticipatory or regular bail before the High Court or any other appropriate

Court.” ; to my mind, has kept the said point open.

10 According to my view, the law laid down by the Division Bench

of this Court in N.K. Nayar’s case (supra) would then be applicable, wherein

it has been observed -

“While considering the question as to whether the provisions of

Section 438 of the Code of Criminal Code, 1973 can be utilized by

this Court when the case or the contemplated criminal proceedings

would be in some other State, has held that, if arrest is likely to be

effected within the jurisdiction of this Court, the concerned person

should have the remedy of applying to this Court for anticipatory bail

even if offence might have been committed in some other State. It is

further observed that, consequently this Court would have jurisdiction

if a person is likely to be arrested at a place within the jurisdiction of

this Court.”


11 Further, recently in Aparna Purohit vs. The State of Maharashtra

[Criminal Anticipatory Bail Application (ST.) No.1468 of 2021] this Court at

Principal Seat passed an order on 20.01.2021 granting transit anticipatory

bail to the applicant therein. After the decision in Augustine Pinto’s case also

transit anticipatory bail is granted by this Court. It appears that order passed

by Hon’ble Supreme Court in Sandeep Lohariya’s case on 01.08.2013 was not

brought to the notice of this Court in Augustine Francis Pinto‘s case.

Therefore, without adjudicating the matter on merits, just to enable the

applicant to approach the competent Court for seeking appropriate relief, the

applicant can be granted relief as prayed. Hence, following order.

ORDER

1 In the event of arrest of the applicant in connection with Crime

No.49/2021 registered at Police Station, Special Cell, New Delhi, for the

offence punishable under Section 153-A and 120-B of the Indian Penal Code,

the applicant be released on bail on furnishing P.R. Bond in the sum of

Rs.50,000/- (Rupees Fifty Thousand only) with one or more sureties in the

like amount.

2 This protection is granted for a period of ten days from today to

enable the applicant to approach the competent Court for seeking

appropriate relief.

3 Application stands disposed of accordingly.

4 All concerned will act on authenticated copy of this order.

( Smt. Vibha Kankanwadi, J. )


Print Page

No comments:

Post a comment