Showing posts with label anticipatory. Show all posts
Showing posts with label anticipatory. Show all posts

17 November 2020

Magistrate; after taking cognizance, cannot issue, at the first instance, non bailable arrest warrant against accused who has obtained anticipatory bail

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.[Para No.1]

    Learned Magistrate thereafter again issued arrest warrants.[Para No.2]
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    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
Magistrate; after taking cognizance, cannot issue, at the first instance, non bailable arrest warrants against accused who has obtained anticipatory bail
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.

01 September 2020

After dismissal of petition for quashing of offence under STSC Atrocity Act, application u/s. 438 for anticipatory bail can not be considered

The appellants upon such filing of the complaint, raised an issue that the ingredients of the offences are prima facie not established and thereby initially, preferred a petition for quashing before the High Court, being Criminal Misc. Application No.6223 of 2017 and by raising multiple contentions about non-applicability of the provisions of the Act, a request was made to quash the complaint. But, after hearing both the sides at length, the said petition for quashing came to be withdrawn vide order dated 11.12.2019 and the interim order which was granted earlier on 6.3.2017 was vacated. Of-course for a period of one week, the said protection was extended.[Para No.3]

    It appears from the record that after disposal of the petition for quashing, the present appellants appeared to have rushed down for anticipatory bail under Section 438 of the Criminal Procedure Code ('the Code' for short) before learned District and Sessions Judge, (Special Atrocity Court) at Surat, which application came up for consideration before learned 7th Additional Sessions Judge, Surat, who by order dated 24.12.2019 was pleased to dismiss the same, which has given rise to present Criminal Appeal before this court [Para No.4]

    At this stage, even if the Court may consider that after disposal of the petition for quashing, application under Section 438 of the Code can be considered, but, in view of the fact that after exhausting meritorious contentions, the petition for quashing came to be disposed of and hence very little scope is left for the Court to consider Section 438 request of the appellants, since prima facie, it cannot be said that no offence is made out and further, it is not open for the bail Court to jump to a conclusion of this elementary stage that this complaint is nothing but abuse of process of law, particularly when the quashing petition is already disposed of. Therefore, with full effect, embargo created by the Statute by way of Section 18 and 18A of the Atrocity Act, the request for anticipatory bail cannot be considered.The intention of the legislature is not to be brushed aside as has been held by the Apex Court. Large number of decisions which are pressed into service, in the considered opinion of this Court, are of no avail to the appellants, particularly when in recent pronouncement of the judgment in the case of Prathvi Raj Chauhan (supra), the Court has expressly made it clear that liberal use of power to grant pre- arrest bail would defeat the intention of the Parliament. So, the Court would not like to exercise the discretion in view of this peculiar set of circumstance and having gone through the overall material on record, the appeal is found to be merit-less since facts are altogether different.[Para No.12]

22 July 2020

Possibility of improvisation should be considered by Special Judge while deciding anticipatory bail in SC & ST Atrocity offences

When facts constituting atrocity are not mentioned in FIR but added in supplementary statement the it does not rule out possibility of improvisation.


   The important point that the learned Special Judge failed to consider is that, there is absolutely no mention in First Information Report of those facts which would attract offence under Atrocities Act. Those facts came to be mentioned in the supplementary statement. The possibility of improvisation should have been considered by the Special Judge. Definitely the ratio laid down in Prithviraj Chavan's case (Supra) is required to be considered and in the said case it has been observed thus, "10. Concerning the applicability of provisions of section 438 of Cr.P.C., it shall not apply tot he cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (I) shall not apply. We have clarified this aspect while deciding the review petitions "

Possibility of improvisation should be considered Special Judge while deciding anticipatory bail in SC & ST Atrocity offences
  Therefore, if we brush aside those allegations under the Atrocities Act, what remains is only the offences under Indian Penal Code and Information Technology Act. Those remaining allegations do not require physical custody of the appellant for the purpose of investigation. Time and again this Court is observing the approach of the Special Judges under the Atrocities Act, who are dealing with the bail applications. They are not considering the facts of the case in proper manner and only on the apparent allegations and especially without considering the ratio laid down in Prithviraj Chavan's case (Supra), just dismissing the bail applications, especially the pre-arrest bail applications holding that, there is bar under Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atocities) Act, 1989. Time has again come to remind the Special Judges under the Atrocities Act that, they should consider the ratio laid down in Prithviraj Chavan's case (Supra) and other Judgments of Hon'ble Supreme Court and this Court in proper manner while dealing with the bail applications.[Para No.9]

16 May 2020

Submission of the charge-sheet is not a lock gate to seek anticipatory bail

F.I.R. alleging non bailable offence registere - During the course of investigation notices under Section 41(A) of Cr.P.C. have been served upon the accused upon which he has given reply through Email - After completion of the investigation, a charge-sheet against the accused filed in the Court - Court took cognizance and issued summons to accused.

Is application seeking anticipatory bail after filling of chargesheet tenable?

   Submission of the charge-sheet is not a lock gate for the applicant to be enlarged on anticipatory bail.

18 April 2020

Bail applications has to be decided expeditiously

Bail-applications-to-be- decided-expeditiouslyThe application for bail or anticipatory bail is a matter of moment for the accused and protracted hearing thereof may also cause prejudice to the investigation and affect the prosecution interests which cannot be comprehended in this order. Such application needs to be dealt with expeditiously and finally, one way or the other and cannot brook delay.

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