Joymalya Bagchi, J.@mdashThis reference has been made owing to difference in opinion between two Hon''ble Judges of this court in the matter of disposal of an application for anticipatory bail in connection with Bongaon Police Station case No. 350 dated 03.07.2011 under Sections 147/148/149/333/325/326/353/307/427/34 of the Indian Penal Code and Sections 3 and 4 of the P.D.P.P Act.
2. The facts of the case is that on 3rd July, 2011 at about 10 p.m., an unruly mob being agitated over the death of a young girl, who died while giving birth, purportedly due to medical negligence ransacked the medical institution and also attacked police personnel causing injuries upon them as well as damage to public property. The petitioner and two others were named as accused persons in the first information report. The petitioner was not arrested in the course of investigation and in conclusion thereof charge sheet was filed wherein the police showed him as an absconder and prayed for issuance of warrant of arrest, proclamation and attachment. It, however, appears from the records that the Magistrate has not declared the petitioner as a proclaimed offender by issuing proclamation against him under section 82 of the Code of Criminal Procedure. Warrant of arrest, however, was issued against the petitioner on the prayer of the investigating agency. The petitioner applied for pre-arrest bail in October, 2013.
3. After hearing the parties, an Hon''ble Division Bench of this Court differed in granting of relief to the petitioner. While Mhatre, J., was of the opinion that the petitioner may be granted pre-arrest bail, Chatterjee, J., was of the view that the application was liable to be rejected.
Points of difference:--
4. Mhatre, J., held that prayer for anticipatory bail ought not to be refused in the facts of the instant case on the mere ground that the petitioner had approached the Court for such relief on 3rd October, 2013 i.e. after more than two years from the date of registration of the first information report. Mhatre, J., opined that although the petitioner was shown as an absconder in the charge sheet it appears that no steps were taken by the police to arrest him for the last two years and that the petitioner had not been declared as a ''proclaimed offender''. Bearing in mind the nature of the allegations in the first information report which relates to an impromptu mob agitation over the unfortunate death of a pregnant lady resulting in minor injuries only, the Hon''ble Judge was of the view that no fruitful purpose would be served in directing custodial interrogation as the investigation was complete and charge sheet had been filed. Mhatre, J, further observed that no substantial role was attributed to the petitioner from the statements recorded in the course of investigation.
5. On the other hand, Chatterjee, J., was of the view that the petitioner was named in the first information report and being a relation of the victim was fully aware of the criminal case instituted against him and intentionally chose to sit on the fence and thereby protracted the criminal proceeding before approaching the Court for anticipatory bail after two years. His Lordship observed that there must be a "Laxman Rekha" that is, a reasonable time within which an accused apprehending arrest must approach the Court for necessary relief and he should not be permitted to seek such relief beyond such time. Chatterjee, J, further observed that in the facts of the case it was the duty of the Magistrate to issue warrant, proclamation and attachment against the petitioner and failure of the Magistrate in that regard cannot enure to the advantage of the petitioner. Bearing in mind the nature and gravity of the offence wherein the accused persons took law in their own hands and assaulted the public servant while discharging their duty, Chatterjee, J, was unwilling to extend the privilege of anticipatory bail to the petitioner merely on the ground that the investigation is over.
6. From the analysis of the ratio of the respective opinions of the Hon''ble Judges, the following points of difference may be formulated:
"(a) Whether in the facts of this case the petitioner ought to have been declared an absconder and his belated prayer for anticipatory bail be denied?
(b) Whether in view of the nature and gravity of allegations and the extent of complicity of the petitioner, such relief ought to be extended to him?
Opinion:--
7. It is a fact that the petitioner had approached this court after lapse of more than two years from the date of registration of the First Information Report and that in the meantime charge sheet has been filed against the petitioner and warrant of arrest had been issued against him. Admittedly, no proclamation and attachment under Sections 82 and 83 of the Code of Criminal Procedure had been issued against the petitioner till date.
8. In
"12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declared as "absconder". Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail."
(emphasis supplied)
9. Similar view has been reiterated in the
10. In the instant case the petitioner admittedly has not been declared an absconder and neither proclamation had been issued against him under section 82 of the Code of Criminal Procedure. Chatterjee, J, however opined that as prayer for warrant, proclamation and attachment had been made by the investigating agency, it was the duty of the Magistrate to issue the same and the petitioner could not be permitted to take advantage of such lapse.
11. It is trite law that there cannot be a simultaneous issuance of warrant and proclamation against an accused. Section 82 of the Cr.P.C. reads as follows:--
"82. Proclamation for person absconding.--(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may public a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows:--
(i)(a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;
(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (I) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860) and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1)."
12. Proclamation under section 82 of the Code of Criminal Procedure may be issued only when a Court has reason to believe that a person against whom warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed. Upon arriving at such satisfaction, the Magistrate shall direct publication of proclamation against the accused calling upon him to appear at a specified place and time not less than thirty days from the date of such publication. In the event the accused fails to appear on that specified time & place as per the proclamation, the Court may after due enquiry, as it thinks fit and proper, declare him to be a proclaimed offender provided he is accused of offences as enumerated in sub-section (4) of Section 82. Admittedly, the aforesaid procedure has not been resorted to in the instant case. That apart, bearing in mind the offences alleged in the FIR there is no scope of invocation of sub-section (4) of Section 82 Cr.P.C. to declare the petitioner a proclaimed offender.
13. I, accordingly, hold that it was impermissible for the Magistrate to simultaneously issue warrant of arrest and proclamation against the petitioner as prayed for by the investigating agency. The Magistrate rightly issued warrant of arrest only in the first instance and upon issuance of such warrant, it was incumbent upon the investigating agency to satisfy the Magistrate by adducing cogent materials that it had failed to execute the warrant of arrest as the petitioner had absconded or concealed himself. Only then the Magistrate would be clothed with requisite jurisdiction to issue proclamation against the petitioner under section 82(1) of the Code of Criminal Procedure.
14. In spite of repeated queries, learned lawyer for the State was unable to place on record any material evidencing efforts on behalf of the investigating agency to execute the warrant of arrest against the petitioner. Therefore, in the facts of the instant case it can safely be concluded that there is no iota of material to show either the investigating agency made any effort to execute the warrant or the petitioner absconded or concealed himself so as to avoid its execution.
15. Such being the position, I hold that the condition precedent for issuing proclamation against the petitioner under Section 82(1) Cr.P.C. is singularly absent in this case. The Magistrate cannot be said to have derelicted his duty in this regard nor can the petitioner be said to have taken advantage thereof in seeking the relief of anticipatory bail.
16. Next comes the issue of delay in seeking relief.
17. Merely because an accused has approached the Court with a prayer for pre-arrest of bail belatedly it cannot be presumed that he was absconding or concealing himself. Chatterjee, J, held as the petitioner had approached this Court more than two years after registration of the first information report (wherein he was named) it would be presumed he was "sitting on the fence" and had protracted the criminal proceeding. Therefore he ought not to be given such relief.
18. It is true that conduct of an accused is a relevant consideration in the matter of grant of anticipatory bail. However, it is not the only consideration. Various factors are to be considered so that a balance may be struck between the necessities of fair and proper investigation and trial on the one hand and the preservation of liberty of an individual on the other.
19. In
20. The Apex Court held as follows:
"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused''s likelihood to repeat similar or the other offences.
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
21. Judged in this light, to deny an otherwise deserving applicant relief of anticipatory bail on the mere premise that he has belatedly applied for such relief, would be contrary to the very spirit of the law which seeks to preserve personal liberty against unnecessary detention & humiliation and would defeat the ends of justice.
22. It must be borne in mind that there is no provision of limitation applicable to section 438 of the Code of Criminal Procedure. Hence, it would be extremely pernicious to lay down one of universal application by way of judicial legislation.
23. Law Commission in its Forty-first Report while recommending incorporation of the provision of anticipatory bail in the Code of 1973 sounded a warning not to fetter judicial discretion of superior Courts in the matter of liberty by laying down inflexible conditions. Law Commission recommended as follows
"We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted. But we found that it may not be practicable to exhaustively enumerate those conditions; and moreover, the laying down of such conditions may be construed as prejudging (partially at any rate) the whole case. Hence, we would leave it to the discretion of the court and prefer not to fetter such discretion in the statutory provision itself. Superior courts will, undoubtedly, exercise their discretion properly, and not make any observations in the order granting anticipatory bail which will have a tendency to prejudice the fair trial of the accused." (para 39.9)
24. A Constitution Bench of the Apex Court in
"Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is nor risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges. While dealing with the necessity for preserving judicial discretion unhampered by rules of general application Earl Loreburn, L.C. said in Hyman v. Rose:
I desire in the first instance to point out that the discretion given by the section is very wide ... Now it seems to me that when the Act is so expressed to provide a wide discretion, ... it is not advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of view from which judges would regard an application for relief. But I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded. If it were otherwise, the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the court where the conditions are not based upon statutory enactment at all. It is not safe, I think, to say that the court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make the court wish it had kept a free hand."
25. It is, therefore, unwise to lay down by way of judicial legislation any outer limit within which an accused is to approach the court for grant of pre-arrest bail. Each case is to be decided on its own merit and the conduct of the accused is to be judged in the light of all other relevant factors. One factor cannot be permitted to eclipse all others and an objective assessment of all relevant factors and/or circumstances in any given case would help the Court to strike a perfect balance between the needs of effective administration of criminal justice on the one hand and the preservation of individual liberty on the other.
26. In the instant case although the petitioner had approached the Court more than two years from the date of registration of the first information report there is nothing on record to show that in the interregnum the investigating agency took steps to execute the warrant of arrest against him but the petitioner absconded or concealed himself and prevented its execution. Protraction of the criminal proceeding due to non-execution of the warrant of arrest is therefore solely on account of inaction of the investigating agency in executing such warrant.
27. In this backdrop, it may not be prudent to decline to entertain the application for pre-arrest bail of the petitioner on the sole premise that he had approached the Court belatedly.
28. The gravity of the offence had also weighed with Chatterjee, J. in coming to the conclusion that this was not a fit case to grant pre-arrest of bail. Chatterjee, J, held that in the alleged incident the accused persons had taken law in their own hands, threatened and assaulted public servants in discharge of their duties and had damaged public property also.
29. In Siddharam Satlingappa Mhetre (supra) the Apex Court held that in addition to the gravity of the offence, another relevant consideration for grant of anticipatory bail is the exact role of the accused in the alleged incident, more particularly, when the implication of the accused is hinged on the principle of construction liability under section 34/149 of the Indian Penal Code, as in the present case.
30. I have examined the first information report and the materials collected in the course of investigation. The petitioner in the instant case appears to have been implicated on the anvil of ''common intention'' under section 34 of the Indian Penal Code. Although the petitioner is named in the first information report, no overt has been attributed to him. In the first information report it is only alleged that the petitioner was present at the hospital where the victim was treated. There is nothing to show that the petitioner played any role either in the assault of medical personnel or public servants or in the matter of destruction of public property.
31. One cannot also lose sight of the fact that the alleged incident arose from the unfortunate demise of a pregnant girl presumably due to medical negligence.
32. In this factual backdrop when there is no material either in the first information report or in the materials collected in the course of investigation attributing any overt role to the petitioner, I am of the considered opinion that it would be unjust not to extend the privilege of pre-arrest bail to the petitioner.
Conclusion:--
33. For the aforesaid reasons, I humbly concur with the opinion of Mhatre, J. and most respectfully differ from that of Chatterjee, J.
34. Hence, I allow this application and direct that in the event of arrest, the petitioner shall be released on bail upon furnishing a bond of Rs. 5,000/- (Rupees Five Thousand) with one surety of like amount to the satisfaction of the concerned Court subject to the conditions laid down under section 438(2) of the Code of Criminal Procedure, 1973.
35. The application is accordingly allowed.
