Balwant Singh And Others v. State Of Punjab And Another

K.S Tiwana, J.:— This application has arisen as a result of counter-cases pending between the parties for mutual exchange of violence on 24th of October, 1979. For the injuries of Balwant petitioner, First Information Report No. 161 dated 24th of October, 1979 was registered at Police Station Bhogpur, District Jullundur under section 307 etc. of the Indian Penal Code. After investigation the opposite party, accused of causing injuries to Balwant Singh petitioner, have been sent up for trial under section 307 of the Indian Penal Code and other allied offences to the Court of Session. On 7th January, 1980, Malkit Singh, respondent No. 2, filed a complaint before Judicial Magistrate Ist Class Jullundur against the petitioners for the same incident under sections 307, 447 and 323 of the Indian Penal Code. After enquiry under section 200 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) the learned Magistrate under S. 204 of the Code issued non-bailable warrants for the arrest of the petitioners in the complaint c se. The petitioners were not successful in their application before the learned Sessions Judge, Jullurdur for anticipatory bail under section 438 of the Code. They have now approached this Court under that section for bail in anticipation appreheuding their arrest. Notice was issued to the State and the complainant in this case.

2. At the outset Mr. Sharma, on behalf of the complainant raised an objection that once the Magistrate issues a warrant for the arrest of any accused person in a complaint after enquiry then he cannot approach the Court under section 438 of the Code for his release in anticipation of the apprehended arrest. He has cited Ram Lal v. The State of Punjab, 1976 C.L.R (Pb. & Hry.) 38, to support his argument. For purposes of reference the reproduction of section 438 of the Code, is necessary which is as under:—

“438 (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 of 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 in such directions in the light of the facts of the particular case, as it may think fit, including—

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

(ii) a condition that the person shall not, directly or indirectly, make any 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 India without the previous permission of the Court;

(iv) such other condition as may be imposed under sub-section (3) of section 437, 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 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 conformity with the direction of the Court under Sub-section (1)”.

3. This section does not make any distinction between the arrest by the police or under orders of the Courts for a criminal offence. In the absence of any such distinction the non-bailable warrants issued by Magistrate 1st Class, summoning the accused, at the first instance and an attempt by the police during the course of the investigation for the arrest of the accused for a non-bailable offence are to be considered on the same level. I cannot identify the distinction in the language of the section as has been projected by Mr. Sharma during the course of his arguments. Sub-section (1) of section 438 of the Code provides that when any person has reason to be believe that he may be arrested on an accusation for a non-bailable offence, he may apply to the Court of Session or High Court and such Court may release him on bail. The main governing feature for the attraction of this provision is the apprehension of arrest of an accused person on accusation of the commission of non-bailable offence whether before the Police or the Magistrate. Reliance has been placed by Mr. Sharma on sub-section (3) of section 438 of the Code. It is constituted of two parts. The first which concerns about the taking of accused in custody is not attarcted for application. The second part which is relevant is “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 conformity with the direction of the Court under sub-section (1)”. This enjoins upon the magistrate, when he, exercising jurisdiction after taking cognizance of the case, decides to summon the accused he has to issue a bailable warrant in the first instance. The bailable warant has to be issued irrespective of the fact whether the offence is bailable or non-bailable. Themakir of this provision regarding the issue of a bailable warrant in Chapter XXXIII of the Code, which concerns provisions as to bail and bonds, has a special meaning in the form of a mandate to the Magistrate that unmindful of the nature of the offence he shall issue a bailable warrant, at the first instance. This provision is mandatory and it cannot be by passed or misconstrced.

4. The Magistrate, in the case, in hand, in the first instance acted in complete disregard of this provision in issuing non-bailable warrants. The issuing of the non-bailable warrants gives a cause in my view justifiably, to the petitioner to apprehend arrest and detertion in custody in execution of the non-bailable warrants issued by the Courts. They were justified in making an approach to the Courts under section 438 of the Code for their release on bail.

5. The facts of the case Ram Lal v. The State of Punjab (Supra), relied upon by the learned counsel for the complainant are distinguishable. In that case the warrants were issued in conformity with subsection (3) of section 438 of the Code i.e, it was a bailable warrant issued for an offence under S. 302, Indian Penal Code. When the warrant itself provides that the accused has to be released on bail on the implementation of the order of the Court in executing the warrant then it is only a failure of the accused to either furnish a surety or insufficient surety which, can lead to his detention in custody. In Ram Lal's case (supra), the accused approached the Court of Sessions and as is discernible from the judgment, the learned Sessions Judge accepting the plea of the accused that section 209 of the Code provides for the commitment of the accused in custody allowed bail under section 458 of the Code. The learned Sessions Judge could not anticipate at the stage of section 438 of the Code, the commitment under custody under section 209 of the Code nor is Section 438 meant for that purpose. In that case that was the main factor and due to this distinction Ram Lal's case, (supra), is not applicable to this case.

6. Taking into consideration the fact that the complaint in this case was made after two months of the alleged occurrence, the petitioners deserve to be released on bail during the pendency of the case against them. A direction shall be issued in the name of the Court of Judicial Magistrate Ist Class, Jullundur, which issued the non-bailable warrants or the Officer to whom the warrants have been entrusted for execution, to release the petitioners on bail on their furnishing surety and personal bonds in the amount of Rs. 5,000 each to the satisfaction of such Court or such Officer in the event of the execution of the warrants. The petitioners shall attend the Court of Judicial Magistrate Ist Class, Jullundur, on each date fixed in the case. They shall not in any way or in any manner tamper with the prosecution evidence or offer inducement or threat or any promise to any person on the side of the prosecution to deter him from making any truth-full narration of the events to his knowledge in the Court. The petitioners shall not abscond, jump bail or place themselves beyond the reach of the Court during pendency of the case against them. They shall also not leave the country without the permission of the Court.

Petition allowed.