M.L.Jain, J - (1.) This application has been made under section 438 Cr. P. C. Bhoora Ram resident of Sabaipur, District Nagpur. It is being opposed by the learned Public Prosecutor and Shri D. K. Sorai counsel for the complainant. I have heard arguments of both the parties. In order to understand the case, it is necessary to briefly narrate the facts : It is alleged that on 12-12-1974, one Bhagirath was done to death. A telegraphic information of the occurrence was sent to the Deputy Superintendent of Police, Makrana that Bhagirath was killed by 20 persons of the party of Nathmal and Mool Chand. After examining 9 witnesses, the police put up a challan on 5-4-75 against three persons namely Dayala, Jiwan and Mishariya under section 302 I.P.C. in the court of the Judicial Magistrate Parbatsar. An application was made on 7-4-75 to the Judicial Magistrate, Parbatsar that besides the three accused persons, there were a large number of assailants whom the police has left. Learned Magistrate it appears, did not take any action upon this application and on 8-4-75 committed the three accused persons for trial to the court of session, Merta. On 29-4-75 a complaint was lodged by Ghisa Ram against 14 persons in the court of the said Magistrate. He held a preliminary inquiry and examined six witnesses. On 2-5-75 the court of session granted bail to accused Mishariya. On 28-7-75 the said Judicial Magistrate took cognizance under section 302 read with 34 I.P.C; against only four persons, namely:- Raghunath, Nathmal, Mool Chand and Bhoora Ram. On 29-7-75 Dayala Ram was bailed out by the High Court but the application for bail of Jiwan was refused. On 22-9-75 a case was registered against Dayala and others on the complaint of witness Mukha under sections 147, 149 and 323 I.P.C. on the ground that he and his nephew Bhanwar Lal were witnesses against them and therefore they were attacked. Meanwhile, an application was made on behalf of the accused persons for quashing the proceedings against them under section 482 Cr. P.C. in the High Court. This application was dismissed on 9-10-75 and subsequently, a review application was also dismissed. The accused Mool Chand, Raghunath, Bhoora and Natbmal made an application for anticipatory bail in the High Court. That application was dismissed on 25-10-75 on the ground that the warrants issued against the accused persons were bailable. On 28-11-75 Dayala was arrested in the F.I.R. which Mukna Ram lodged against him. On the same date an affidavit was also filed by Bhanwar Lal in the court of the Judicial Magistrate, Parbatsar that the accused were threatening him. It appears that meanwhile the Magistrate was transferred and the new magistrate who took over charge thought it proper to issue non-bailable warrants against Mool Chand and others because it was a murder case. Mool Chand however, was granted bail by the learned Magistrate. On 3-12-1975 an application for cancellation of bail of Dayala was also made which is said to be pending still in the court of session. On 18-12-1975 Nathmal was granted bail by the High Court on the ground as his case was not different from the case of Mool Chand. Thereafter a bail application under section 428 Cr. P.C, was moved on 14-1-76 in this.court on behalf of Bhoora Ram. On 13-2-76 the learned counsel for the petitioner undertook to present the accused before the court and sought adjournment. However, on 19-2-76 the bail application was not pressed and was therefore, rejected. On 25-2-76 the present application was filed. The learned Public Prosecutor urged at the very outset that the accused should be required to surrender, before his bail application can be entertained. The learned counsel, for, the applicant however, submitted that lie has-no particular objection to produce the, applicant before the court and if the court so directed he will have little, hesitation, in complying with such direction. But be vehemently argued that it, was no requirement of the law that the accused must, surrender, before his application for anticipatory bail can be entertained. The .controversy appears to have arisen because of a decision of this court in Sawai Singh v. State, 1974 RLW 615 , In this case Sharma J. observed : "There is nothing in section 438 Cr. P.C. which enjoins that the appellant should physically appear in the court to apply for a direction and should be present throughout the course of his application." But a little later, the learned Judge appears to have held that "where a warrant of, arrest of the applicant has been issued, or a step has been taken by a police officer to arrest him without a warrant, or an order in writing has been issued under section 55(1) of the Code, bail can be granted only if he physically appears in the court and surrenders himself because in such a case if bail is refused, he shall be taken into custody and shall forth with be sent to judicial custody or shall be forwarded to the officer in charge who had issued an order in writing to a subordinate to make his arrest." It is upon these observations that it is insisted that a person applying under section 438 Cr. P.C. should surrender if any step towards his arrest is being taken. But it appears to me that the final view of the learned Judge has been expressed in the following words towards the end of para second of the aforesaid judgment:- "The conclusion at which, I therefore, arrive is that the words "he may apply" used in section 438 of the Criminal Procedure Code, 1973, cannot be given a literal meaning so as to insist upon the petitioner to physically appear in the court and surrender himself before his application under section 438(1), Cr. P. C. can be entertained." Thus, the aforesaid decision cannot be relied upon for the submission that the accused must surrender before his application under section 438 Cr. P. C. could even be entertained or granted, for the simple reason that there is no such requirement of the law.
(2.) Indeed in Sawai Singh v. State, 1976 RLW 6. Kudal J. was of the view that the discretion vested in the High Court and the court of session is an unfettered discretion. If the Court of session or the High Court thinks fit, a direction under section 438(1) Cr. P. C. may be issued in appropriate cases. The learned Judge observed as follows : "I have no hesitation in holding that the ordinarily rule of arrest aDd enlargement on bail shall continue to function during the investigation or trial of the cases ; but when it is brought to the notice of the court that the investigation agency is being exploited, or that the process is likely to be misused, the High Court or the Court of Session has been given the discretion to issue a direction in appropriate cases for releasing the accused on bail whenever he is apprehended. This would mean that the provisions of section 438 Cr. P. C. are to be utilised when either the investigation agency misdirects itself or from the perusal of the case diary it appears that innocent persons are likely to be harassed or entangled in false or frivolous cases." It does not appear to me that the learned Judge was laying down that the anticipatory bail can be granted only if the investigating agency is being exploited counsel for Jethanand Devandas submitted an application to the non-petitioner No. 3 Girdharilal. In these circumstances it has teen alleged that the non-petitioners had no right to enter the premises of Tikamdas but they did so in order to insult Tikamdas.
(3.) When the non-petitioners appeared before the court, the non-petitioner No. 3 Girdhariial, Assistant Engineer (Mining), submitted an application under' Section 197 of the Criminal Procedure Code, 1898 that the court should not take cognizance of the offence without the sanction ' of the Government as the act alleged was done while discharging the duty as public servant. An amount of Rs. 45,16226 P was due against Jethanand Devandas as arrears and in view of the various provisions of the Land Revenue Act the non-petitioners went for attachment of the property and the proceedings of attachment were done.;