Police officers cannot arrest automatically when the offence is punishable with imprisonment for a term that may be less than seven years or which may extend to seven years, whether with or without a fine. The High Court bench consisting of J. Anoop Chitkara relied on various case laws while granting bail to the petitioner in the matter of Parveen Kumar v. State of Himachal Pradesh [Cr.MP(M) No. 141 of 2021].
The petitioner was accused of commission of offences punishable under the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Section 3(1) of the said Act is a cognizable and non-bailable offence, the petitioner came up under Section 439 of the Code of Criminal Procedure, 1973, seeking permission to surrender before the court and simultaneously seeking release on ad-interim bail. Briefly, the allegations against the petitioner were of using derogatory words prohibited under the Act. The learned counsel for the petitioner stated that the petitioner had no criminal past relating to offences prescribing a sentence of 7 years and more, or when on conviction, the sentence imposed was of more than 3 years. The counsel for State argued that if the Court was inclined towards granting bail, then it should be made subject to very strict conditions.
The High Court found that the petitioner had straightaway filed the bail petition before the court which the Court said was permissible as in the case of Mohan Lal v. Prem Chand [AIR 1980 HP 36], the full judge bench held that “a person can directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge”. The court turned to the case of Ami Chand v. State of H.P. [CrMPM 1116 of 2020], wherein it was held that “in the absence of any riders or restrictions under S. 439 Crpc, any person accused of a non-bailable offence, under any penal law, including the violations under the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989, can apply under section 439 Crpc, offering to surrender and simultaneously seeking interim bail”.
On receipt of such an application, the Court is to satisfy that the applicant stands arraigned as an accused in an FIR disclosing Non-bailable offences and if all the parameters are complete, then the Court is under an obligation to accept surrender. Since custody is the sine qua non for considering a bail application, the Court is under an obligation to consider the prayer for interim bail after the said deemed custody. The Court hence released the petitioner on bail and subjected him to furnish a personal bond.
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Judgement reviewed by-Sarita Kumari
