N. Dasaratha Reddy Petitioner (Accused No. 3) v. State By The Public Prosecutor, Andhra Pradesh .

(1) The short question that arises for consideration in this case is whether anticipatory bail under sec. 438 cr. P. C. Can be granted to an accused against whom a magistrate issued a non - bailable offence on a police report (charge - sheet) ?

(2) In arriving at a decision on the question, it may be necessary to examine the various provisions in the new code in regard to arrest, remand and ball section 41 stipulates conditions for arrest by a police officer without a warrant from a magistrate. Section 56 provides for the production of the person arrested before a magistrate having jurisdiction in the case. Section 73 provides for the issue of a warrant by a first class magistrate to any person accused of a non - bailable offence and avading arrest. Section 76 provides for the production of the arrested person before the court without delay. Section 167 (1) provides for the remand of the person arrested when the investigation cannot be completed within 24 hours. Section 309 (2) provides for the remand of an accused, if in custody, after the court takes cognizance of the offence or after the commencement of the trial. The direct provisions in regard to grant of bail are contained in sections 436 (i) , 438 (1) and 439 (1). These provisions read as follows:

"436. In what cases bail to be taken,. (i) when any person other than a person accused of a non - ballable offence is arrested or detained without warrant by an officer - in - charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such court to give bail such person shall be released on bail: provided that such officer or court, if he or it thinks fit, may instead of taking ball from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided; provided further that nothing in this section shall be deemed to affect the provisions of sub - section (3) of sec. 116, 437. When bail may be taken in case of non - bailable offence. (1) when any person accused of or suspected of the commission of any nonbailable offence is arrested or detained without warrant by an officer in - charge of a police station or appears or is brought before a court, other than the high court or court of session he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of offence punishable with death or imprisonment for life : provided that the court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on ball : provided further that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the court. (2) (3) (4) (5) (6) (7) 438. Direction for grant of bail to person apprehending arrest. - (1). When any person has reason believe that he may be arrested on an accusation of having committed a nonbailable 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). (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 a 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 confirmity with the direction of the court under subsection (i). 439. Special powers of high court or court of session regarding bail. - (i) a high court or court of session may direct. - (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of sec. 437. May impose any condition which it considers necessary fcr the purposes mentioned in that sub - section ; (b) that any condition imposed by a magistrate when releasing any person on bail be set aside or modified : provided that the high court or the court of session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the court of session or which, though not so triable. Is punishable with imprisonment for life, give notice of the application for bail to the public prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(3) Besides the above provisions, sec. 167 (2) (a) provides that it is mandatory on the part of a magistrate to release the accused on bail, whatever the offence may be, on the expiry of a total period of 60 days of detention during the investigation, provided, the accused is prepared to and does furnish bail. Section 209 (b) provides that a magistrate while committing an accused to the court of session in the case of an offence exclusively triable by a court of session, may remand the accused to custody during and until the conclusion of the triual, subject to the provisions of the code regarding ball.

(4) An examination of the above extracted provisions would show that the scheme of the code for granting bails is to give primary jurisdiction to the court which has taken cognizance of the case and the court of session or the high court comes into the picture only after the court which took cognizance of the offence exercised its jurisdiction by granting or refusing the bail. It is only sec. 438 that invests the court of session and the high court with the jurisdiction to grant anticipatory bail and the reason for not investing a magistrate with this juris, diction is that it is an extraordinary special power requiring the exercise of considarable care rnd caution. The provision is newly added to provide for a situation not covered by the other provisions in the code read as a whole, the section shows that it is not designed to assist those who want to avoid the due process of law and to avade aarest pursuant to a warrant issued by a court. The court's process must be respected first before any one can seek the aid of a court. If there is a warrant for the arrest of a person, such person may sub - mtt imself to arrest or may himself appear before the court and seek bail under sec. 437. Section 438 applies only to arrests while the court's process has not been issued. That is clear if section 438 (3) is read along with sec. 438 (1). The first limb of sub - section (3) of section 438 contemplates arrest by a police officer without warrant and it happens only when the cour; did not take cognlzence of the offence and did not issue any warrant of arrest. The second limb of the sub - section contemplates a magistrate taking cognizance of the offence after the person has been granted antlclpatoy ball. There is no provision in sec. 438 cr. P. C. Or any where in the code for the grant of anticipatory bail to a person who apprehends arrest in pursuance to a warrant issued by a magistrate taking cognizance of the offence. While section 438 does not cover the case an accused against whom a non - bailable warrant has been issued by a court which took cognizance of an offence against him, section 439 provides for grant of ball by the high court or the court of session, only to "a person accused of an offence and in custody. " granting or refusing bail to an accused when a warrant of arrest is pending against him, the same having been issued by the court of a magistrate who took cognizance of the offence, is essentially and primarily the jurisdiction of the magistrate who isiued the warrant and the superior courts are not expected to preempt the exercise of such jurisdiction. The new provisions in regard to anticipatory ball postulates a stage where the court having jurisdiction over the offence has not taken cognizance of the offence. It does not take in its amble the case of an accused against whom a court has already issued a warrant by taking cognizance of the offence.

(5) Under the circumstances, this petition for anticipatory ball is not maintainable and has to be dismissed. In the light of this finding, it would be unnecessary to examine the marits of the petitioner's case for the grant of anticipatory bail. However, as the learned counsel for the petitioner, sri a. Krishnaiah, has argued a considerable length in regard to the merits, i deem it desirable to consider this aspect also. The petitioner's learned counsel states that the petitioner is a sarpanch, that he is of weak health, that he has teen falsely implicated in the case by the village munsiff and that therefore he may be granted anticipatory bail. The learned additional public prosecuted opposes the application contending that the accusation against the petitioner is true, that the petitioner is highly influential, and that if he is not remanded to custody, he would be interfering with the prosecution witnesses. It is further urged that the petitioner is hale and healthy and is not of such weak health as represented.

(6) The admitted facts of the case are as follows : m. Devi reddy of naganathanhalll village in aluru taluk gave a report to the vlllage munsiff that his father autchappa was axed and stabbed to death by three persons (a - 1 - to a - 3) on the instigation of the petitioner (a - 4) who was physically present at the time of the commission of the murder at about ii p. M. On 20 - 4 - 1975. It was stated in the report chat one veerabhadrappa who was in the company of the deceased at the time of the occurence and who received a sickle - injury at the hands of a - 3 and escaped from the scene, gave the information to devi reddy. The report having been forwarded to the police at aluru by the village munslff. Cr. No. 16 of 1975 of the aluru police station was registered aga'nst the four accused with the potitioner is the fourth accused on 21 - 4 - 1975. By the time the police arrived at the scene for investigation a - 1 in the case was murdered. While a - 2 and a - 3 could be apprehended, the petitioner who was the sarpanch of the village could not be appreherded. While so, devi reddy, the first informant submitted a petition on 30 - 7 - 75 before the judicial first class msgistrats. , adoni. Requesting that his statement u/s 164 cr. P. C. Might be recorded and the magistrate recorded a statement in this statement devi reddy stated that in his report to the village munsiff he did not mention anything against the petitioner, but the vil'age munsiff has unnecessarily included the name of the petitioner in the report and 'hat he signed the report be for the vllage munsiff without the report having been read over to him. Subsequently, after completion of the investigation, the police, aluru submitted a charge - sheet against three: accused including the petitioner as a - 3 for murder and the munsiff - maglstrate, aluru took cognizance of the same. As a - l and a - 2 are already under remand and as a - 3 (the petitioner herein) is reported by the police to be absconding, the munsiff - magistrate issued a nonbailable warrant against the petitioner. Thereafter the petitioner submitted an application under sec. 438 cr. P. C. Before the sessions court, kurnool on 5 - 8 - 75 praying the court to grant him anticipatory bail and to direct the munilf magistrate, aluru to relesse the petitioner on bail in the event of his surrendering before the court. The sessions court dismissed the application under it order dated 12 - 8 - 75. The petitioner has come up with the instant application to this court on 20 - 8 - 1975.

(7) It is clearly stated in the report of the village munsiff that the deceased was axed to death on the exhortation of the petitioner. Devi reddy stated in his repcrt to the village munsiff that he was giving the report on the information given to him by veerabhadrappa, who is an injured witness in the case and whose investigation statement, it is represented by the public prosecutor, implicates the petitioner as an abettor of the murder. Admittedly, devi reddy is not an eye witness. No doubt, section 438, does not provide as to under what circumstances anticipatory bail should be granted or should not be granted, and it does not, however, mean that the special powers of the court under sec, 438, can be exercised arbitrarlly. What all section 438 provides is that bail can be granted to a person apprehending arrest on the accusation of a non - bailable offence. The granting of such bail is subject to the general principles governing the grant of ball in non - bailable offences. If the allegation against the petitioner is true, he would be guilty of an offence punishable with death or imprisonment for life. Even though the f. I. R. Against him has been registered on 21 - 4 - 75 he could not have been so far apprehended by the police, though he is a sarpanch the apprehension of the prosecution that the petitioner is influential and that he may interfere with the prosecution witnesses, if at targe, does not appear to me to be without substance the deceased's own son has a'ready resiled from his statement before the village munsiff when he gave a statement before the munsiff - magistrate, adoni under sec. 164 cr. P. C. Under the circumstances, i do not find that this is a fit case for grant of anticipatory bail. For the reaions recorded, this petition is dismissed