Additional Session Judge was ordered by the High Court to read 10 landmark judgment of the Supreme Court of India on Anticipatory Bail covered under Section 438 of the Code of Criminal Procedure and to submit a written synopsis on the same. The High Court passed the order after observing that the Judge wrongly dismissed the application for anticipatory bail. The Punjab and Haryana High Court presided over by J. A.S. Sangwan laid down this ratio in the case of Amarjit Singh & Ors. Vs. State of Punjab & Anr., [CRM No. 31214 of 2020]
The brief facts of this case are that one Haardeep Singh son of Nagendra Singh was arrested by the Petitioners in the year 2005 under the NDPS Act. When he was being taken to the Magistrate for a hearing he escaped and there was no information regarding his physical being. After, sometime the father of the accused i.e. Nagendra Singh filed a habeas corpus petition contending that his son was illegally held by the Police. Later on, there was a body found in a pond which was alleged to be of Hardeep and Nagendra accused the police for murder of his son. A report was filed by the Police stating that the body was not of Hardeep and the High Court directed the Sessions Court to further investigate on this matter. The Sessions Court confirmed on the report that the body found was of Haardeep and hence an order was passed to close the Habeas Corpus proceedings and register an FIR in this case.
Meanwhile, a report by the Special Investigating officer was filed which stated that the body was not of Haardeep and that he had escaped while he was being taken to the court. Hence, a cancellation petition was filed before the trial court in the year 2011. Nagendra opposed this petition and filed a protest petition in the year 2012. The Court considered this petition as a criminal complaint and recorded statements of all the parties in the case. Later the court issued summons for the case proceedings to the three petitioners and in the year 2019 non-bailable warrants were issued by the Magistrate against the three Petitioners. The Petitioners contended that Haardeep Singh was alive and in custody of the Police for the crimes committed under the NDPS Act. The Police Commissioner verified the same. An anticipatory bail application was filed by the Petitioners on the grounds that a fraud was played on the courts and Criminal Complaint was filed against the three petitioners whereas the son of the Complainant i.e. Haardeep was alive and the complainant had the knowledge about the same.
The Additional Session Judge proceeded to dismiss the anticipatory bail application. The Magistrate court then dismissed the application moved before the it to dispose of the protest petition, stating that it did not possess the power to dispose of the application since cognizance had already been taken and accordingly the matter would have to be tried by a court of higher jurisdiction.
The High Court was of the opinion that, “The Magistrate, while dismissing the application vide impugned order dated 02.12.2020 even again issued Non-bailable Warrants against the petitioners. This part of the order is also illegal as in view of provision of Section 87 of Cr.P.C., the Magistrate can withdraw Warrants as per the information supplied and also in view that the petitioners through counsel had already appeared. The proper course was to direct the counsel for the petitioners to furnish bail/surety bonds as they intended to appear before the Magistrate, but for dismissal of anticipatory bail by the Additional Sessions Judge, they apprehended arrest for no fault.”
The Court further noted that, “However, the Additional Sessions Judge having failed to exercise the jurisdiction under Section 438 Cr.P.C., in dismissing the anticipatory bail application of the petitioners despite the fact that it was brought to his notice that they are being prosecuted in pursuance to a fraud committed by the complainant, has passed a totally illegal order.”
