M.L. Singhal, J.@mdashThrough this Crl. Misc. No. 13254-M of 2001. filed u/s 482 Code of Criminal Procedure. Central Bureau of Investigation (CBI) has prayed for the quashing of orders dated 13th February, 2001 Annexure P-1 and 12th February, 2001 Annexure P-2 passed by Special Judicial Magistrate. CBI (Punjab), Patiala. Before we proceed to deal with the question whether these orders passed by Special Judicial Magistrate, (CBI), Patiala are or are not legal, it would be useful to advert to the facts which have given rise to these orders.
2. One Crl. Misc. No. 11534-M of 2000 was filed by Kamaljit Singh, resident of Begowal, District Kapurthala in this Court. Another, Crl. Misc. No. 11H29-M of 2000 was filed by Lawyers for Human Rights through its Vice President. In these Crl. Misc. applications, this Court gave the following directions,�vide order dated 9th June, 2000:
In the light of the discussion made above, it is hereby directed that the investigation into the circumstances leading to the death of Harpreet Kaur alias Rozy shall be conducted by the CBI. SP. CBI. Chandigarh is directed to proceed with the investigation and in case the same is found to be the result of commission of an offence, guilty shall be brought to book. The inquiry shall be completed within four months from the date of the receipt of certified copy of this order.
3. In compliance with the orders dated 9th August, 2000, a preliminary inquiry No. SII-2000-S.-0001, dated 11th July, 2000 was registered in Special investigation Cell of CBI. New Delhi. According to the FIR, the inquiry revealed that Kamaljit Singh, son of Darshan Singh, resident of Begowal was intimately in love with Harpreet Kaur alias Rozy daughter of Bibi Jagir Kaur, President of the Shiromani Gurdwara Parbandhak Committee and a resident of Begowal. A secret engagement ceremony took place between them at Chandigarh on 6th September, 1999. During the course when they were engaged in love affair with each other, they had physical connection with each other, as a result of which Harpreet Kaur became pregnant. The said pregnancy was confirmed on 12th February, 2000 by Dr. Mrs. Jyoti Rana of Sector 39-B, Chandigarh. Bibi Jagir Kaur was opposed to the culmination of their love affair into marriage and she therefore, entered into a criminal conspiracy with Mrs. Dalvinder Kaur. Paramjit Singh, Nishan Singh and others to send her away from Chandigarh to Phagwara so that she could not have any meeting with Kamaljit Singh. They decided to illegally detain Harpreet Kaur and bring about miscarriage of the child she was carrying in her womb due to her physical connection with him though they knew that causing miscarriage was likely to cause her death. On 18th March, 2000, Dalvinder Kaur alongwith her driver Harvinder Kumar alias Binder had taken Harpreet Kaur to her residence in Phagwara on the pretext to taking her to Patiala for shopping in connection with her marriage. She was compelled to stay at Phagwara against her wishes. On 19th March, 2000. Smt Satya wife of Bhag Ram maid servant of Dalvinder Kaur gave tea to Harpreet Kaur and on consuming that tea, she started feeling giddy and became unconscious. Ultimately this is said to have brought about abortion. Thereafter again, Harpreet Kaur was kept in illegal confinement at the house of Dalvinder Kaur at Phagwara. ASI Nishan Singh, PSO of Bibi Jagir Kaur, Smt. Satya, Harvinder Kumar alias Binder, Sanjiv Kumar and others used to guard her during her illegal confinement. On 8th April, 2000. Harpreet Kaur jumped out of a small window of the room and reached a place nearby Jalandhar from where she contacted Kamaljit Singh and asked him to come and take her. Kamaljit Singh and his sister Manjit Kaur took her to Sports School, Rai, Sonepat on 8th April, 2000 where they halted on 9th April, 2000 at the house of one Smt. Kulwinder Cauhan. Kamaljit Singh even contacted the members of his family and learnt that police officials had visited his house to know his whereabouts. Harpreet Kaur also contacted her mother and protested against sending the police to the house of Kamaljit Singh at Phagwara. On assurance given by her mother, Harpreet Kaur accompanied by Kamaljit Singh and his sister Manjit Kaur returned to Jasdil Mansion, Phagwara on 10th April, 2000. On that date Kamaljit Singh and Manjit Kaur were dropped at Phagwara. Then again Harpreet Kaur was illegally confined. On 20th April, 2000, she was reported to have develped a state of acute dehydration due to vomiting and dysentery. The inquiry revealed that she was not given any medicine nor she was taken to any doctor. She allegedly died around 2.30 A.M. in the intervening Light of 20th/ 21st April, 2000. After investigation, the CBI registered case against Bibi Jagir Kaur and others u/s 304/344/313/201 read with Section 120�B IPC.
4. Bibi Jagir Kaur filed Crl. Misc. No. 42172-M of 2000 u/s 438 Code of Criminal Procedure for securing anticipatory bail. Hon''ble S.S-Nijjar, J. vide order dated 15th November, 2000 allowed her anticipatory bail while observing that having examined the matter prima facie, there was no material before the court to justify custodial interrogation of Bibi Jagir Kaur. Operative portion of the order reads as follows:
In view of the above, application for anticipatory bail is allowed. In the event of arrest, the arresting officer will release the Petitioner on bail subject to his satisfaction. Petitioner is directed to appear before the investigating officer at New Delhi on 17th November, 2000 at 11 A.M. The investigating agency is at liberty to arrest the Petitioner if the Petitioner fails to join investigation as directed above. It is made clear that any observations made about the respective merits of the case of the parties are purely prima facie. These observations have been made merely to dispose of the application for anticipatory bail. These observations will not be taken into account in any subsequent proceedings.
5. After the investigation, CBI put in challan in the court of Special Judicial Magistrate, CBI, Patiala. On 13th February, 2001. Bibi Jagir Kaur appeared before Special Judicial Magistrate, CBI, Patiala, in pursuance of the notice issued to her. She moved application for the acceptance of bail bonds on the ground that she had been granted anticipatory bail by the High Court vide its order dated 15th November, 2000. Special Judicial Magistrate, CBI, Patiala, passed the following order on 13th February, 2001:
On the perusal of the order dated 15th November, 2000 in which the anticipatory bail was granted, in my opinion, no period is mentioned for which the anticipatory bail was granted. Thus, in my opinion, Bibi Jagir Kaur is on anticipatory bail till today.
6. Relying upon 1997(1) RCR (Crl.) 493, he gave her time to move the trial court for seeking regular bail. He ordered her to be released on bail on furnishing bail bonds and surety bonds in the sum of Rs. 25,000 with one surety in the like amount with direction to her to move the trial court for regular bail till next date i.e. 29th March, 2001. He did not agree with the submission made by the learned CBI counsel that anticipatory bail granted to her was meant only for the period at investigation and after challan was put in, she had to be sent to judicial custody in view of the provisions of Section 209 Code of Criminal Procedure because she had not been granted bail by the trial court. Magistrate did not feel that anticipatory bail granted to her by the High Court came to an end the moment challan was put, in she had to be sent to judicial custody. Instead, he felt that she should not be arrested but be given time so that she sought regular bail from the trial court. So that she did apply for regular bail to the trial court, she was called upon to furnish bonds. Order dated 13th February, 2001 passed by the Magistrate was to ensure till her prayer for regular bail was disposed of by the learned trial court (Court of Session).
7. Bibi Jagir Kaur did not apply for regular bail to the Court of Session in pursuance to the order of the Magistrate dated 13th February, 2001, instead, she moved an application before the Magistrate asking for the recall of the order dated 13th February, 2001. It was urged that order dated 13th February, 2001 was bad in law because the anticipatory bail allowed to her by the High Court was not limited in duration and the High Court had nowhere stated that the order granting her anticipatory bail will come to an end the moment the challan was put in or that order will ensure only till the investigation was over. It was urged that she had been granted anticipatory bail by the High Court without punctuating it that this order will ensure till the investigation of the case was over rather the said order was final and absolute.
8. On this application, Magistrate passed an order on 12th March, 2001 through which he agreed with the submission made by the learned Counsel for Bibi Jagir Kaur and observed that in this case, in the order granting anticipatory bail, no period of operation of anticipatory bail was mentioned, thus the order passed by him directing the accused to seek bail from the trial court within the specific period was liable to be recalled and he ordered the recalling of the order dated 13th February, 2001 and Bibi Jagir Kaur was ordered to be released on bail to enure till her bail was cancelled by the court of competent jurisdiction.
9. What the orders of the Magistrate convey is that the order granting anticipatory bail to Bibi Jagir Kaur was final and absolute. It was to ensure till the trial was over. She was only to furnish bonds so that she continued appearing before the court. Through this Crl. Misc. petition. CBI has challenged the legality of these orders. CBI has challenged the very jurisdiction of the Magistrate to pass these orders.
10. It was submitted by the learned Counsel for the CBI that CBI challenged the grant of anticipatory bail to Bibi Jagir Kaur by the High Court vide its order dated 15th November, 2000 through SLP (Crl.) No. 4481 of 2000. SLP became infructuous because of the grant of regular bail to her by the Magistrate vide order dated 12th March, 2001. Before the Hon''ble Supreme Court, learned Solicitor General for the CBI submitted that it may be clarified that the anticipatory bail order was effective till the filing of the chargesheet in the case and the observations made therein were for the limited purpose of the disposing of the petition for anticipatory bail. He further submitted that the learned Magistrate passed the order for regular bail mainly relying on the order of anticipatory bail passed by the High Court in the case. Magistrate observed that the order does not limit the period during which bail will remain effective. Learned Solicitor General drew the attention of the Hon''ble Supreme Court to some decisions in which the Hon''ble Supreme Court approved fixing of time limit in the anticipatory bail orders. Shri Jaspal Singh, learned Senior Counsel contested the contentions raised by the learned Solicitor General and contended that the order passed by the High Court granting anticipatory bail to the Respondent is perfectly valid. Hon''ble Supreme Court disposed of the SLP with the following observations.
Since the challenge against the order granting anticipatory bail has been rendered infructuous we are not inclined to consider the contentions raised on merits of the case. The learned Senior Counsel for the Respondent states that the order granting regular bail has been challenged before the High Court. If that is so, or if the Petitioner challenges the said order, it will be open to it to urge all grounds available under the law including the contentions noted above and the proceeding will be decided on merits without being influenced by the observations made in the order under challenge in the present case." In other words, Hon''ble Supreme Court has left this question open to be determined by this Court whether the order granting anticipatory bail was of limited duration and it came to an end as soon as investigation was over or it was to ensure till the entire trial was over and on appearance before the Magistrate, she was only to furnish necessary bail bonds so as to ensure her appearance on every date of hearing before the trial court i.e. the court of session.
11. It was submitted by the learned Counsel for the CBI that the reading of the order dated 15th November, 2000 passed by Hon''ble S.S. Nijjar, J. shows that this order was to ensure during the currency of investigation of the case only. It was submitted that the use of the words in the order dated 15th November, 2000 that "in the event of arrest, arresting officer will release the Petitioner on bail subject to his satisfaction and the Petitioner is directed to appear before the investigating officer at New Delhi on 17th November, 2000 at 11 A.M., the investigating agency is at liberty to move the court for appropriate orders if the Petitioner fails to join investigations as directed above" shows that anticipatory bail was to ensure till the investigation was over. Investigating agency was given liberty to move the court for appropriate orders if she failed to join investigation It was submitted that by no stretch of imagination, the Magistrate could be viewed as the "arresting officer" as the Magistrate was not to arrest, it is the investigating officer who is to arrest and that too when he feels that there is sufficient evidence pointing accusing finger at the accused warranting his arrest. It was submitted that it was at this stage that the order granting anticipatory bail would come into play. Investigating officer will formally arrest the accused and call upon him to furnish bail to his satisfaction. It was submitted that the formal arrest means that the accused will appear before the investigating officer on a date and time to be given to him with his sureties. Investigating officer will arrest him only by word of mouth and he will call upon him to furnish bail. He will record the factum of his formal arrest and his release on bail in the case diary.
12. It was submitted by the learned Counsel for the CBI that the order granting anticipatory bail is always of limited duration and should be construed as of limited duration even if its duration is not specified in the order. In support of this submission he drew my attention to
13. It was submitted by the learned Counsel for the CBI that it was wrong on the part of the Magistrate to have assumed that no time limit was mentioned in the order dated 15th November, 2000 of Hon''ble S.S. Nijjar, J. granting anticipatory bail to Bibi Jagir Kaur and he could take it as of unlimited duration ensuring till the trial was over. It was submitted that in view of the observations made by the Hon''ble Supreme Court in K.L. Verma''s case (supra), the order granting anticipatory bail can ensure either till the investigation is over and challan is put in or till the prayer for regular bail is made to the regular court which remains undisposed of or if it is declined, till it is disposed of by the higher; court. It was submitted that Bibi Jagir Kaur should have applied for regular bail to the Court of Session after she had executed the necessary bonds before the Magistrate ensuring that she would apply for regular bail to the Court of Session till 29th March, 2001. Till 29th March, 2001, the order granting anticipatory bail could ensure or at best till her prayer for regular bail remained undisposed of by the learned Court of Session. It was submitted that if she had applied for regular bail to the Court of Session and the Court of Session had declined it, anticipatory bail could ensure till she had moved the High Court for regular bail or at best till her prayer for regular bail was disposed of by the High Court. It was submitted that in no case it could be taken that she was absolved of applying for regular bail. It was submitted that in this case, there was no resort to the provisions of Section 439 Code of Criminal Procedure by Bibi Jagir Kaur for securing regular bail. There was resort only to the provisions of Section 438 Code of Criminal Procedure It was submitted that in this case the regular court would be not the Magistrate''s but the Court of Session. It is only in cases which are triable by the Magistrate that accused can ask for bail from the Magistrate. It was submitted that viewed from this angle, the order of the Magistrate dated 12th March, 2001 recalling his earlier order dated 13th February, 2001 was nullity and devoid of jurisdiction. It was submitted that Bibi Jagir Kaur could not refuse to comply with the order of the Magistrate dated 13th February, 2001 as she had not challenged that order before any superior court.
14. It was submitted that the Magistrate should have sent Bibi Jagir Kaur to judicial custody as soon as she had surrendered before him particularly when she was not arming herself with any bail order passed by a regular court u/s 439 Code of Criminal Procedure In support of this submission, he drew my attention to the provisions of Section 209 Code of Criminal Procedure which reads thus:
209. Commitment of case to court of Session when offence is triable exclusively by it.� When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of session, he shall�
(a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;
(b) subject to the provisions of this code relating to bail, remand the accused to custody during, and until the conclusion of the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of session.
15. It was submitted that when the offence was exclusively triable by the Court of session, the Magistrate was bound to send her to judicial custody if she was not on bail. If the accused was on bail, he could not have committed the accused to custody while committing the case to the Court of Session. It was submitted that in this case, as the accused was on anticipatory bail which came to an end when the investigation was over, Magistrate had no business to keep her on bail when the offence was not triable by him but was exclusively triable by the Court of Session.
16. Learned Counsel for the Respondent, on the other hand, submitted that while granting anticipatory to Bibi Jagir kaur, Hon''ble S.S. Nijjar, J. has nowhere said that the anticipatory bail allowed to her will ensure till a specified date and, thereafter it will come to an end. It was submitted that if anticipatory bail was to be allowed to Bibi Jagir Kaur for a limited duration of time, Hon''ble S.S. Nijjar.J. would have qualified his order by saying that the anticipatory bail allowed to her will come to an end as soon as investigation was over or as soon as challan was put in or as soon as charge was framed. It was submitted that it would be unjust to read words in the order of Hon''ble S.S. Nijjar. J. which are not there.
17. Learned Counsel for the CBI submitted that the order of anticipatory bail is always limited in duration. If it were unlimited in duration, there would be no difference between an order granting anticipatory bail and an order granting regular bail. Learned Counsel for Bibi Jagir Kaur submitted that bail granted by the High Court u/s 438 Code of Criminal Procedure can only be cancelled by the High Court u/s 439(2) Code of Criminal Procedure A Magistrate or a Session Judge has no power to cancel bail which has been granted by the High Court. In support of this submission, he drew my attention to
18. In
19. It was submitted by the learned Counsel for the Respondent Bibi Jagir Kaur that when the Magistrate had no power to cancel anticipatory bail allowed to her by the High Court, all that he could do was to direct her to appear before the Court of Session and procure an order of regular bail. It was submitted that when Sessions Judge could not cancel the anticipatory bail granted to her by the High Court, all that the Sessions Judge could do was to order her to execute bonds so that her appearance before the court of session was ensured on every date of hearing. What the Sessions Judge could do was to pass a formal order asking her to furnish bonds before him so as to ensure her continued presence before him during the trial. In
20. Learned Counsel for the Respondent submitted that operation of order passed u/s 438(1) should not necessarily be limited in point of time. Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of the FIR in respect of the matter covered by the order. The applicant may in such a case be directed to obtain an order of bail u/s 437 or 439 of the Code within a reasonable short period after the filing of the FIR but this need not follow as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time. It was submitted by the learned Counsel for the Respondent that this rule was laid down by a Bench of five Judges of the Hon''ble Supreme Court in
21. It is thus clear that the provision of anticipatory bail was introduced in the Code of Criminal Procedure with a view to saving people from the ignominy of arrest and applying for bail only after arrest. It was submitted by the learned Counsel for the Respondent that if it is to be read in the order granting anticipatory bail by Hon''ble S.S. Nijjar, J. that this order came to an end as soon as challan was put in, then the Respondent would have to apply over again for regular bail to the Court of Session and wait for its decision. If the court of session refuses her regular bail, that would mean setting at naught the order passed by the High Court granting anticipatory bail to her.
22. Learned Counsel for the CBI submitted that when the Respondent was granted anticipatory bail, there was not much evidence before the court. Considering the amount of that evidence, the court allowed anticipatory bail. It was submitted that now since sufficient evidence has come forth during investigation on the basis of which she has been challaned, the anticipatory bail has to come to an end and she has to be left to apply for regular bail to the court of session which is to try the case. In support of this submission, he has drawn my attention to the statement of Dr. Balwinder Singh who turned approver in the case.
23. Suffice it to say, we are not at the stage of considering whether the evidence collected by the investigating agency is or is not that weighty so that Bibi Jagir Kaur should or should not be allowed to remain on bail during the trial and be sent to custody. In this case, the question for consideration before us is whether the order granting anticipatory bail to Bibi Jagir Kaur came to an end as soon as challan was put in court and that after the putting in of the challan, she should be left to apply for regular bail to the court of session or in the order granting anticipatory bail, no such time limit should be read and that order should ensure till the trial of the case is over if not cancelled by the High Court. Learned Counsel for the Respondent submitted relying upon Bholai Mistry and Anr. v. The State (supra) that anticipatory bail granted by the High Court cannot be cancelled u/s 439(2) Code of Criminal Procedure by the Magistrate or even by the Sessions Judge. It can be cancelled only by the High Court. At the time of commitment, the Magistrate has to admit the accused on bail. He has simply to ask the accused to furnish necessary bonds so that the presence of the accused at the trial is ensured. In
24. In this case, there is no time limit fixed by Hon''ble S.S. Nijjar, J. while granting anticipatory bail to Bibi Jagir Kaur. Even otherwise, in view of the observations of the Hon''ble Supreme Court in Gurbaksh Singh Sibbia etc. v. The State of Punjab (supra) the normal rule should be not to limit the operation of the order in relation to a period of time. Assuming that the order granting anticipatory bail came to an end as soon as challan was put in and Bibi Jagir Kaur should either have been taken into custody forthwith as soon as challan was put in or she should have been left to apply for regular bail to the court of session which was to try the case, is only of academic interest because the anticipatory bail granted to her by the High Court could not be cancelled either by the Magistrate or the court of session. Magistrate could not commit her to custody. All that the Magistrate could have done was to ask Bibi Jagir Kaur to furnish bonds so as to ensure that she continued to appear before him during committal proceedings and also before the court of session after the case is committed to it (court of session for trial).
25. Order dated 13th February, 2001 passed by the Magistrate is misconceived. He should not have directed Bibi Jagir Kaur to apply to the trial court for bail. He should have asked her to furnish bonds so as to ensure her presence before him and also to ensure her presence before the court of session on every date of hearing. After her appearance before the court of session, court of session could have called upon her to furnish fresh bonds so as to ensure her presence before it on every date of hearing during the trial. Order dated 12th March, 2001 of the Magistrate recalling the order dated 13th February, 2001 is quite legal. Argument of the learned Counsel for the CBI that there is no provision in the Code vesting the court with any power to recall its own order cannot be allowed to cut any ice with this Court as order dated 13th February, 2001 was absolutely unwarranted by the provisions of the Code of Criminal Procedure. When Bibi Jagir Kaur was on anticipatory bail allowed to her by the High Court, Magistrate should not have treated that order as having come to an end and directed her to approach the Court of Session and seek bail from it on or before 29th March, 2001. Magistrate could correct/modify that order and pass another order dated 12th March, 2001 saying that the bonds furnished by her earlier pursuant to his order dated 13th February, 2001 will enure throughout till the bail allowed to her was cancelled. So, this Crl. Misc. petition fails and is dismissed. Court of Session may call upon Bibi Jagir Kaur to furnish fresh bonds to its own satisfaction so as to ensure her continued presence before it till the trial is over.
