Naveen Kumar vs State Of Haryana

CRM-M-62048-2018 (O&M) - 1-

208 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CRM-M-62048-2018 (O&M) Date of decision:14.01.2019 Naveen Kumar ...Petitioner Versus State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE RAJBIR SEHRAWAT

Present: Mr. Sukhdeep Singh Sandhu, Advocate for the petitioner.

Mr. Munish Dev Sharma, AAG, Haryana.

Mr. Vivek Goyal, Advocate for the complainant.

***** RAJBIR SEHRAWAT, J. (ORAL)

Prayer in this petition filed under Section 438 of Cr.P.C. is for

grant of anticipatory bail in case FIR No.373, dated 29.09.2018 under

Sections 406, 420, 506 of IPC, registered at Police Station Nissing, Karnal.

The facts, which have given rise to the present FIR, are that one

Rajesh Kumar, complainant; approached the police with the allegations that

he was doing business of commission agent. In the normal course of

business, the accused had purchased paddy from his firm. However,

thereafter, the payments as agreed between the parties were not made by the

petitioners. In this process, the complainant has been put to loss of

Rs.1,12, 87,500/- . Though there are more details of allegations yet on the

basis of these broad allegations, the FIR has been lodged.

Before proceedings further, it is apposite to note that the

present petition has been filed under Section 438 Cr.P.C. directly before the

High Court, without first approaching the Court of Sessions Judge

concerned.

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Learned counsel for the complainant, who is present in Court,

has raised the objection that unless there were some specific and compelling

reasons disclosed by the petitioner, for bye-passing the Court of Sessions

Judge, he could not have approached directly to the High Court for seeking

anticipatory bail. Still further, it is contended that even if, he has

approached this Court directly, then this Court would not intervene in the

matter; bye-passing the jurisdiction of Competent Subordinate Court.

Learned counsel for the complainant has relied upon the judgments passed

by Delhi High Court in Jasbir Singh Sodhi Vs. UOI and another; 2010

(10) R.C.R. (Criminal) 523; Karnataka High Court in C.P.Yogeshwara

and others vs. Serious Fraud Investigation Officer., Delhi, 2013 (15)

R.C.R. (Criminal) 929; Rajasthan High Court in Satya Deo Rajpurohit

and others vs. State of Rajasthan and another, 2002(2) RajCriC 604.

Before proceedings further upon merits of the case, the

question was put up to the counsel for the petitioner as to why he has not

approached the Sessions Court of the area concerned, and instead, why he

has approached this Court directly for the same relief for which the Sessions

Court was competent to grant.

As an answer to the query put up by this Court, the counsel for

the petitioner has submitted that the reasons for not approaching the

Sessions Court is that the petitioner belongs to Uttar Pradesh, whereas, the

case has been got registered in the State of Haryana. It is further contended

that all the male members of the family of the petitioner have been made

accused in this case, therefore, there is nobody in family to take care of the

case of the petitioner. It is further submitted that if he appears before the

Sessions Court for filling petition under Section 438 Cr.P.C., then he would

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be arrested by the police, who are already in connivance with the

complainant.

Still further, it is argued by the counsel for the petitioner that

there are judgments; including the judgment from the Hon'ble Supreme

Court to the effect that since the power conferred under Section 438 Cr.P.C.,

is the concurrent power, therefore, the petitioner has legal right to choose

the place for remedy. Hence, if he has straightway approached the High

Court for the same relief, for which the Court of Sessions had the concurrent

jurisdiction, then the petitioner cannot be asked to go back to the Court of

Sessions. It is further contended that once this Court is seized of the matter

then there is no reason for sending the petitioner to the Court of Sessions.

Learned counsel for the petitioner has relied upon the judgments passed by

the Hon'ble Supreme Court in Barun Chandra Thakur Vs. Central Bureau

of Investigation and others, 2018 (5) R.C.R. (Criminal) 49; Chander

Bhan Singh Vs. Central Bureau of Investigation and others, Criminal

Appeal No.30 of 2019 (Arising out of SLP (Criminal) No.1740 of 2015),

decided on 08.01.2019 and still another judgment of Uttarakhand High

Court in Mubarik and another Vs. State of Uttarakhand and others in

CWP No.2059 of 2018, decided on 02.11.2018. Counsel for the petitioner

has also relied upon the Full Bench judgment of Himachal Pradesh High

Court rendered in Mohan Lal and others Vs. Prem Chand and others, AIR

1980 Himachal Pradesh 36; judgment of Division Bench of Andhra

Pradesh High Court rendered in Y. Chendrasekhara Rao and others vs.

Y.V. Kamala Kumari and others, 1993 Cr.L.J. 3508; Judgment of Division

Bench of Kerala High Court rendered in Balan Vs. State of Kerala, 2004

Cr.L.J. 3427.

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Before proceeding further in the case, this Court deemed it

appropriate to consider whether in view of the concurrent powers conferred

upon Sessions Court and the High Court, the petitioner should have

approached the Sessions Court for the same relief or not; and further that

even if the petitioner has approached this Court, then is the High Court

bound to entertain the petition filed by the petitioner or should this Court,

require the petitioner to approach the Sessions Court in the first instance for

seeking anticipatory bail.

The Hon'ble Supreme Court of India, in case 2016 AIR (SC)

3506, Anita Kushwaha and others Vs. Pushap Sudan and others has held

that 'Right to access to Justice' is a fundamental right of a citizen, being

integral part of right to life and liberty guaranteed by Article 21 of

Constitution of India. Hence every individual has to be provided with

appropriate forums to access to justice; in case the situation so arises.

Accordingly, some of these forums are provided in the form of

constitutional Courts, i.e. the Supreme Court of India and the High Courts

for the respective states. However due to multi-fariousness of the human

situations it would neither be appropriate nor possible to restrict the

availability of judicial form to Supreme Court and High Court. So other

forums have been provided through appropriate legislative instruments like

statutes and notifications. Hence a hierarchy of Courts is established

besides the Tribunals and the Regulators. Similarly the rights conferred

under the Constitution are fructified by legislative and statutory instruments.

The substantive law defines the rights of the citizen and the procedural law

ensures the availability of remedy to protect the rights. While a right may

be claimed as a matter of entitlement; the remedy cannot be claimed; in a

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particular manner; as a matter of right. Remedy can be regulated, restricted

or may not even be indefinitely available. Remedy has to be availed subject

to its restrictions and parameters. Even within the specified parameters the

remedy is to be availed subject to the regulation through appropriate

exercise of discretion by the adjudicating forum like; the Court. If the

discretion of the adjudicating forum does not violate and provision

regulating the remedy available to the person then it can very well be used

to restrict the scope, expense and the extent of the remedy itself. A person

has no right to infinite and uncontrolled remedy. Hence the Courts are

given ample powers to control the process of remedy available to a person;

under the law of evidence and law of procedure. The Courts; with regulated

remedies; constitute the system of administration of justice.

For administration of the criminal justice, a completely

hierarchy of the Courts is prescribed under law. For a particular State, the

High Court is the highest Court of criminal justice. Thereafter, only the

Hon'ble Supreme Court is there, which is the Court of special apex

jurisdiction. Although keeping in view the unforeseen exigencies; in which

an individual citizen can be put, on certain aspects concurrent powers have

been given to the High Court as well as to the Court of Sessions, however,

same statutory law nowhere mandates that where power is prescribed to be

concurrent then the high court is bound to exercise its jurisdiction by

entertaining the petition; which has been filed under its concurrent

jurisdiction.

At this stage, it is appropriate to have a reference to the

provisions as contained in Section 438 Cr.P.C. reproduced as under:-

"438. Direction for grant of bail to person apprehending arrest. - [(1) Where any person has reason to believe that he

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may be arrested on accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:-

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application. (1-A) Where the Court grants an interim order under subsection (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice].

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions

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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 interrogation 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 subsection (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 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 conformity with the direction of the Court under sub-section (1)."

A perusal of the bare provision shows that under this section an

individual has been provided the remedy to protect his right to life and

liberty by approaching Court. However, the power to protect that right of

the petitioner is conferred upon the Courts concurrently. Under this

provision the High Court and the Sessions Court have been conferred

concurrent jurisdiction. Other significant aspect is that this section uses the

words 'Court may' either reject the application forthwith or issue an interim

order for protection of accused. If the protection order is to be passed, then

Court shall have to take into consideration the factors mentioned in this

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Cr.P.C. as a circumscribed power. Still further the operational aspect of an

order passed under this section renders such order more in proximity with

the place of the trial Court or the Magistrate concerned. In any case, this

section does not cast a mandate upon the Court, once approached, to

exercise the power in any particular manner. It leaves the matter entirely to

the Court.

No doubt, the accused as a citizen has a fundamental right to

life and liberty. However, that right to life and liberty can very well be

curtailed in accordance with the procedure established by law. As per the

procedure prescribed for Criminal Administration of Justice, the normal

procedure for curtailing the life and liberty of the accused, Cr.P.C.

prescribes that the Investigating Officer can arrest an accused even without

warrant and without assistance /interference of the Court. However, to

ensure that a person is not unduly harassed, at least in those cases, where the

circumstances are leading, predominately, towards ex-facie innocence of the

accused, the Courts have been given special and extra-ordinary power under

Section 438 Cr.P.C. This statutory power of granting pre-arrest bail is so

extraordinary that it is not even available in all parts of the country; and

even through-out the country qua some offences under special statutes.

Hence, right to get anticipatory bail is not any fundamental right. The

provision of Section 438 Cr.P.C. provides only a remedy to an accused and

leaves the extent of right to liberty to be decided by the Court.

Learned counsel for the petitioner has relied upon the judgment

of Hon'ble the Supreme Court in Barun Chandra Thakur's case (supra) in

which in para No. 9, the Hon'ble Supreme Court has observed as under:-

" 9. Further, we cannot lose sight of the fact that this incident had received wide coverage in the media, both

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electronic and print. In fact, it can be said that there was a trial by media, therefore, when the private respondents have directly approached the High Court for grant of anticipatory/interim bail under Section 438 of the Code, that too when the High Court has concurrent jurisdiction, we cannot find any fault with the action of the private respondents."

However, this Court finds that this judgment of the Supreme

Court is not a precedent on a point that once there exists a concurrent

jurisdiction with the High Court and the Court of Sessions, then the High

court would, in all cases, where approached, exercise its power instead of

asking the accused to approach the Sessions Court. A bare perusal of the

judgment relied upon by the counsel for the petitioner, shows that in that

particular case, the Hon'ble Supreme Court had only upheld the power

which has already been exercised by the High Court; in particular facts and

circumstances of that case. There was a specific reason given by the

petitioner in that case, which was considered as sufficient by the High Court

to invoke and exercise the jurisdiction under Section 438 Cr.P.C.

Learned counsel for the petitioner has also relied upon the

judgment of Hon'ble the Supreme Court in Chander Bhan Singh's case

(supra). Counsel for the petitioner has relied upon Paras 7 and 10 of this

judgment, to contend that in that case the Hon'ble Supreme Court had

directed the High Court to decide the case itself, by setting aside its order

directing the petitioner in that case to approach the Court of Sessions. A

bare perusal of this judgment also shows that the Hon'ble Supreme Court

had asked the High Court itself to decide the case because the case had

already remained pending before the High Court for about 2 years and it had

also applied his mind. However, on the question of concurrent jurisdiction,

the Hon'ble Supreme Court had specifically left the question open without

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deciding the same. Para 10 of the judgment is quite unequivocal in this

regard. Thus in this judgment, the Supreme Court has, by no means, laid

down that in case of concurrent jurisdiction; the High Court would be bound

to consider and finally decide the case on merits; if the person approaches it,

without requiring him to go to Court of competent concurrent jurisdiction at

the lower level.

Counsel for the petitioner has further relied upon the judgment

of Uttarakhand High Court in Mubarik and another's case (supra), which

in turn has further relied upon the judgment of Full Bench of Himachal

Pradesh High Court in Mohan Lal's case (supra), and have said that in

case the petition is filed before the High Court then it should consider the

same and particularly in para 16, it has been held as under:-

"In view of the aforesaid legal position, we have no hesitation in holding that the High Court and the Court of Session have concurrent jurisdiction under Section 438 of Cr.P.C. It is for the accused to choose the forum and the same cannot be restricted by construing the provision of Section 438 of Cr.P.C. narrowly."

However, this Court finds itself in respectful disagreement with

the Division Bench of Uttrakhand High Court. There is no doubt that the

jurisdiction of the Court of Sessions and the High Court is concurrent.

However, if the High Court requires the accused to approach the Court of

Sessions Judge in the first instance, that by no means restricts the scope of

or narrows down the interpretation of Section 438 Cr.P.C., in any manner.

The Court of Sessions, qua the grant or denial of the anticipatory bail,

would still be considering the case of the accused in the same scope as

would have been considered by the High Court and the parameters of

consideration would still be the same. Rather by sending the accused to the

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Court of Sessions, the High Court would be enlarging the expense of

Section 438 Cr.P.C. for the accused; because in case the anticipatory bail

filed by the accused before the Court of Sessions is dismissed; he would

have remedy of approaching the High Court as well. On the contrary, if an

anticipatory bail is rejected by the High Court itself, then he has no scope

for going backward in the hierarchy of Courts, to Court of Sessions; for the

same cause of action. Therefore, the interpretation put up by the Hon'ble

High Court of Uttarkhand, rather, narrows down the scope of remedy made

available to accused under Section 438 Cr.P.C. and reduces it to half only.

Learned counsel for the petitioner has re-emphasized the Full

Bench judgment of Himachal Pradesh High Court in Mohan Lal's case

(supra), which has, ultimately, held as under:-

" 15. Our answers to the questions referred to the Full Bench are that persons can apply for revision or anticipatory bail to the High Court direct without first invoking the jurisdiction of the Sessions Judge."

However a reading of this judgment also makes it clear that the

Hon'ble Full Bench has categorically observed in preceding paras that it is

true that where a concurrent jurisdiction was conferred on more than one

Court, the inferior Court was expected, as a matter of practice, to be

approached first. However, thereafter only on the basis that the concurrent

jurisdiction is created by statute itself, but without furnishing any further

jurisprudential basis the Hon'ble full Bench has held that in case the accused

is required to move the Court of Sessions first, this may result in curtailment

of his right. This Court see no reason as to how the right of the accused to

get the anticipatory bail would be curtailed if he is asked to move the

competent court of concurrent jurisdiction at the lower stage. Conditions to

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be considered by Sessions Court for deciding upon the anticipatory bail

would still be the same as would have been considered by the High Court.

So it is obvious that there is a jurisprudential fallacy in this judgment of the

Full Bench; because it confuses the 'Remedy' with the 'Right'. What Cr.P.C.

provides; by way of concurrent jurisdiction; is the remedy to move the

Court and not the right to seek decision in particular manner. As observed

above the right of the accused is only 'right to access to justice' which is

conferred upon him by Article 21 of the Constitution of India, and not the

'right to get that justice from a particular Court'. Section 438 is only a

remedy, even that a highly circumscribed remedy. Although this remedy is

made available to him at two levels of hierarchy of Courts, however, this

Court finds no reason to leave the absolute choice to the accused to

overlook the hierarchy of Courts. The propriety of the judicial hierarchy

demands that unless there are some compelling reason; virtually and

effectively depriving or disabling the accused to avail remedy before the

Court below, the hierarchy of Courts has to be respected. In case of

concurrent jurisdiction; if the High Court does not entertain the petition

directly and on the contrary, ask the accused to go to the competent Court of

jurisdiction of the first instance having the concurrent power, that by no

means would be denial of his right to access to justice. In any case, he

would be having his right to access to justice intact.

Counsel further relied upon the Y. Chendrasekhara Rao's

case (supra). The High Court of Andhra Pradesh have proceeded primarily

on the basis that denying the accused to move the High Court directly; for

seeking anticipatory bail; would amount to violation of Article 21 of the

Constitution of India. However, this Court does not find this to be

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constitutionally valid reason in view of the various pronouncements of the

Supreme Court. As mentioned above, of course, the accused has a

fundamental right to access to justice. But, right to move for anticipatory

bail under Section 438 Cr.P.C. itself is not any fundamental right. It is only

a statutory remedy, which is not even available in some parts of the country

qua the offences under general penal law and is not available anywhere in

country qua the offences under some special statutes. Hence, this Court

does not find itself in agreement with the judgment of the Hon'ble Andhra

Pradesh High Court in Y. Chendrasekhara Rao's case (supra).

On the contrary, this Court find itself in agreement with the

judgments cited by the counsel for the complainant, which have a common

streak running through all these judgments that, but for some special

disabling reason, even in case of concurrent jurisdiction, the accused should

be required to go to the Court of first instance. All these judgments relied

upon by the counsel for the complainant have categorically held that unless

there is some extraordinary or exceptional circumstance, forcing the accused

to move directly in the High Court for seeking anticipatory bail, in normal

course, he should approach the Court of Sessions Judge. This Court finds

these judgments to be more in line with judicial propriety of respecting the

hierarchy of the Courts. Section 438 is not conferring any fundamental

right upon a person. It is only enabling provision for providing remedy to

the accused to move a Court, out of the Courts provided in this section, for

consideration of his case for grant of anticipatory bail. However, he has no

inalienable right to seek order on merits from any particular Court. So if

instead of deciding itself, the High Court requires the accused to move the

Sessions Court in the first instance then no right of the petitioner would be

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violated. On the contrary, if the High Court considers the case itself and

decides to decline the accused anticipatory bail, then it would deny the

accused an additional opportunity to approach a legal forum; which would

have been available to him before High Court, had he moved the Sessions

Court first.

In the present case, the reasons pointed out by the counsel for

the petitioner for directly approaching the High Court for seeking

anticipatory bail are that the petitioner is resident of State of Uttar Pradesh,

all male members of his family have been involved in the case and that the

complainant is hobnobbing with the police for getting the petitioner

arrested. Therefore, counsel has expressed his apprehension that in case,

the petitioner approached the Sessions Court at Karnal then he could be

arrested by the Police. However, this Court finds that this argument of

learned counsel for the petitioner is having nothing to do with the aspect; as

to which Court is required or would be appropriate to exercise the powers

under Section 438 Cr.P.C. None of these factors are disabling factors so as

to compel the petitioner not to approach the Court of session, in the first

instance; and so to directly approach the High Court. The factors which are

mentioned by the counsel for the petitioner as the reasons for not

approaching the Sessions Court at Karnal, would be very much applicable in

that situation as well; when he is approaching the High Court. Therefore

this Court does not find the reason; given by the counsel for the petitioner

for not approaching the Court of Sessions in the first instance, to be

sufficient to exclude the ordinary concurrent jurisdiction of Court of

Sessions.

Counsel for the petitioner has further submitted that the present

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FIR is a counter blast to the complaint already filed by the petitioner against

the complainant and his family members, as well as against the uncle of the

complainant. On the basis of those complaints, two FIRs have already been

registered against the side of the complainant, through the orders passed by

this Court.

However, this Court finds that even this argument is having

something to do only with the merits of the case, which this Court is not

even entering into, for the purpose of consideration of the present petition.

In view of the above, this Court finds no exceptional or special

circumstances to exercise its concurrent jurisdiction under Section 438

Cr.P.C. and to pass any order on merits of the case.

The petitioner, if he so deems appropriate; may approach the

Court of Sessions Judge for the same relief.

With above observations, the present petition is dismissed.

(RAJBIR SEHRAWAT) JUDGE 14.01.2019 Hemlata

Whether speaking/reasoned Yes / No Whether reportable Yes / No

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