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Mohan Singh Parihar Vs. Commissioner of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1983CriLJ1182
AppellantMohan Singh Parihar
RespondentCommissioner of Police and ors.
Cases ReferredGurbaksh Singh Sibbia v. State of Punjab
Excerpt:
- .....follow, if the problem is approached from another angle. section 496 of the code provides that a person accused of a bailable offence shall be released on bail when he is arrested by the police, or appears or is brought before a court, provided he is prepared to give bail. section 497 which deals with non-bailable offences, provides that a person accused of a non-bailable offence, other than the one punishable with death or imprisonment for life, if he is arrested by the police, or appears or is brought before a court, may also be released on bail by such court. the expression 'a court' occurring in both these sections cannot mean and include any other, whether within or outside the state of jammu and kashmir, but must mean a court competent to try or commit the accused for trial, for.....
Judgment:
ORDER

I.K. Kotwal, J.

1. This petition Under Section 497-A of the Code of Criminal Procedure, hereinafter to be referred to as 'the Code', raises an important question of the extent of the powers of the High Court and the Court of Session, to grant anticipatory bail to a person, against whom a case has been registered with a police station, which, is situated outside the limits of their territorial jurisdiction.

2. A criminal case under Sections 406 and 420 I.P.C. has been registered against the petitioner with police station Nanakpora, New Delhi, The petitioner is a resident of village Bajarni, Tehsil Doda, a place within, the territorial limits of the State of Jammu and Kashmir. He has filed the present petition in this court for granting the anticipatory bail in exercise of its powers Under Section 497-A. An objection has been taken on behalf of the State that this court has no jurisdiction to grant anticipatory bail to a person, against whom a case has been registered with a police station which is situated outside the local limits of its jurisdiction under the Code. The objection is, in my opinion, well founded and must succeed. Section 497-A is, for the sake of convenience, reproduced as below:

497-A, 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 and such direction in the light of the facts of particular case, as it may think fit, including

(i) a condition that the person shall make himself available' for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly make an 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;

(iii) a condition that the person shall not leave the State without the previous permission of the Court;

(iv) such other condition as may be imposed under Sub-section (2-a) of Section 497 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 Magistrate taking cognizance of such offence decides that a warrant should issue 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).

3. In order to determine its true intent and scope, Section 497-A has to be read with a few other sections of the Code. Section 6 enumerates the classes of criminal courts. These are:

(i) High Court;

(ii) Courts constituted under a Special Act;

(iii) Courts of Sessions; and

(iv) Courts of Magistrates, Section on further classifies the courts of Magistrates into courts of Judicial Magistrates, namely, Chief Judicial Magistrate, Judicial Magistrates of the First Class, Judicial Magistrates of the Second Class, and Special Judicial Magistrates and Executive Magistrates, namely, District Magistrates, Addl. District Magistrates, Sub-Divisional Magistrates, Executive Magistrates of the First Class, Executive Magistrates of the Second Class, and Special Executive Magistrates. A Sessions Judge, in terms of Section 9, exercises his jurisdiction under the Code within the limits of the Sessions Division, to be known as the district, for which he is appointed as a Sessions Judge. Consequently, a Sessions Judge who has ceased to be a Sessions Judge of one district, and has not become the Sessions Judge of another district, cannot exercise the powers of Sessions Judge. These powers are always relatable to a territory, and cannot be exercised in isolation thereof. Section 10 says that the Government shall appoint District. Magistrates, and the High Court the Chief Judicial Magistrate for such districts, who shall exercise their powers as such Magistrates within the territorial limits of their respective districts. The other Executive and Judicial Magistrates, in terms of Section 12 shall be appointed for such districts, but the local areas in the district within which they shall exercise their powers under the Code, shall have to be denned by the Government, in so far as the Executive Magistrates are concerned, and by the High Court, in so far as the Judicial Magistrates are concerned. Section 28 provides that subject to the other provisions of the Code, any offence under the Ranbir Penal Code may be tried by the High Court, or by the Court of Session, or by any other Court by which such offence is shown to be triable in the 8th Column of the Second Schedule. From a careful reading of this section it clearly transpires that whereas the jurisdiction of every other criminal Court to try an offence is restricted by the 8th Column of the Second Schedule, the jurisdiction of the High Court and the Court of Session is not so limited and these Courts are competent to try all offences, provided the cases are properly brought to these Courts for their trial. High Court has been defined by Clause (f) of Section 4 to mean 'the highest Court of criminal appeal and revision in the Jammu and Kashmir State.

4. A combined reading of these sections would thus indicate that whereas the High Court will exercise its powers under the Code throughout the territory of the State of Jammu and Kashmir, the Sessions Judge and other Magistrates will exercise their powers within their defined areas in the territory of the State. It further follows that none of these Courts shall exercise any power conferred on it, including the power to grant anticipatory bail under Section 497-A, at any place outside the territorial limits of the State of Jammu and Kashmir.

5. That apart, the High Court of Jammu and Kashmir not having the appellate powers under Chap. XXXl nor the revisional powers under Chap, XXXI of the Code, and nor even the powers of superintendence and control Under Section 104 of the Constitution of Jammu and Kashmir in relation to Courts situated outside the territory of the State, its order will have no binding force on those Courts. The same will be true of the Police Stations which are situated outside the territory of the State. Law will not, therefore, countenance a situation where an order of the High Court may be flouted by a Court lower than the High Court or for that matter by an officer-in-charge of a police station with impunity. If the interpretation sought to be placed on Section 497-A by Mr. Singh, that the High Court and the Court of Session have powers to grant anticipatory bail to a person, against whom a case has been registered with a police station, situated outside the territory of the State is to be accepted, then a situation is likely to arise where the High Court of Jammu and Kashmir may have to watch as a helpless spectator its order granting anticipatory bail to the accused in that case being disregarded by the Officer-in-charge of the police station. Such cannot be the true intent and scope of Section 497-A.

6. The same conclusion is bound to follow, if the problem is approached from another angle. Section 496 of the Code provides that a person accused of a bailable offence shall be released on bail when he is arrested by the police, or appears or is brought before a Court, provided he is prepared to give bail. Section 497 which deals with non-bailable offences, provides that a person accused of a non-bailable offence, other than the one punishable with death or imprisonment for life, if he is arrested by the police, or appears or is brought before a Court, may also be released on bail by such Court. The expression 'a Court' occurring in both these sections cannot mean and include any other, whether within or outside the State of Jammu and Kashmir, but must mean a Court competent to try or commit the accused for trial, for the contrary interpretation to be placed upon it is bound to bring Section 497, into conflict with Section 167 of the Code, in particular, to Sub-section (2) thereof. Sub-section (2) of Section 167 reads as under:

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has not jurisdiction to try the case or commit it for trial and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. Provided that:

(a) the Magistrate may authorise detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so but no magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days and on the expiry of the said period of sixty days the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIX for the purpose of that Chapter;

(b) No Magistrate shall authorise detention in any custody under this section unless the accused is produced before him:

(c) No Magistrate of the second class not specially empowered in this behalf by the Government or the High Court, as the case may be, shall authorise detention in the custody of the police.

7. On its plain language, where further detention of the accused in police custody is not considered necessary by the Magistrate before whom the accused is produced for remand, he shall not release him on bail, unless he has the power to try or commit him for trial, Such a Magistrate may, however, release him on bail in exercise of his powers under Section 497, if 'a Court' of which this section speaks, were to mean and include any Court. Section 497 has, therefore, to be read along with Section 167 to find out the amplitude of the expression 'a Court' occurring in it. On the parity of the reasoning, the High Court and a Court of Session of which Section 497-A speak, must also mean the High Court and the Court of Session competent to try the accused seeking enlargement on bail.

8. In support of his contention, Mr. Singh, however, relied upon a Bench decision of the Calcutta High Court viz: B.R. Sinha v The State 1982 Cri LJ 61 in particular, to the following passage occurring therein (at p. 63):

Considering the provisions laid down in Section 438 of the Code and the principles of law with regard to the anticipatory bail explained by their Lordships in Gurbaksh Singh's case 1980 Cri LJ 1125 (SC) : AIR 1980 SC 1632 and also considering the view taken by at least three Division Benches in the cases referred to above, we are of the opinion that this Court has jurisdiction to entertain application for anticipatory bail of a petitioner who resides within the jurisdiction of the Court, though he apprehends arrest in connection with a case, which has been started outside the jurisdiction of this court.

9 This decision is clearly distinguishable on facts. In all the three applications before the Calcutta High Court, the petitioners had sought anticipatory bail not in cases registered with police stations outside the local limits of the jurisdiction of the High Court, but in cases pending before different Courts situated outside the local limits of its jurisdiction. Deriving support from the principle laid down by their Lordships in Gurbaksh Singh Sibbia v. State of Punjab AIR 1980 SC 1632 : 1980 Cri LJ 1125, that powers of the High Court or the Court of Session to grant anticipatory bail under Section 438 were not circumscribed by the limitations contained in Section 437 of the Central Code (497 of the Code), the Bench held that anticipatory bail could be granted to a person under Section 438, even if the offence for which the person sought bail was not bailable as provided by Section 81 of the Central Code. Section 438, there can be no manner of doubt, applies not not only to those cases which are registered with police stations, but also to those cases which are pending in Courts. On the view taken by their Lordships in Gurbaksh Singh's case (supra), no fault can be found with the view taken by the learned Judges in B. R. Sinha's case 1982 Cri LJ 61 (Cal) (supra). But, if the learned Judges by making the above quoted observations meant to convey further that the High Court or the Court of Session in whose local limits of jurisdiction the person seeking anticipatory bail resides at the relevant time, are competent to grant it even in those cases where the case against such person has been registered with a police station situated outside the territorial limits of the jurisdiction of that Court, then with utmost respects to the learned Judges, if I may say so, I cannot agree with them in taking this view. Neither their Lordships of the Supreme Court meant to lay down any such law in Gurbaksh Singh's case (supra) and nor could residence of the accused in such cases play any role in the matter. Section 190 of the Code (Section 190 of the Central Code) speaks of taking cognizance of the offence, but not of the offender. Likewise Chapter XV of the Code (Chapter XIII of the Central Code) which deals with the jurisdiction of the criminal Courts in inquiries, and trials, including the ordinary place of inquiry and trial, also speaks of the trial of the offence but not of the offender. That apart, even Section 438 of the Central Code (497-A of the Code) does not in terms makes relevant the residence of the person seeking enlargement on anticipatory bail.

10. For all that has been stated heretofore, the objection taken by the State survives and the petition is dismissed accordingly. The order granting interim relief to the petitioner is also vacated.


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