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Javed Anand and Others v/s State of Gujarat and Others

    Anticipatory Bail Application No. 627 of 2018
    Decided On, 05 April 2017
    At, High Court of Judicature at Bombay
    By, THE HONORABLE JUSTICE: REVATI MOHITE DERE
    By, J.
    For Petitioner: Mihir Desai, Senior Advocate and Vijay Hiremath i/b Mihir Joshi & Associates And For Respondents: Mahesh Jethmalani, Senior Advocate, Panav Badheka and Deepak Thakare, P.P.


Judgment Text

1. Heard learned counsel for the parties.

2. By this application, the applicants seek transit anticipatory bail till 20th May, 2018, in connection with an offence registered vide C.R. No. I/20/2018, with the DCB Police Station, Ahmedabad City, Gujarat, for the alleged offences punishable under Sections 120B, 153A, 153B, 406, 409 and 420 of the Indian Penal Code and Sections 13(1)(d)(i) and 3 (2) of the Prevention of Corruption Act.

3. At the outset, Mr. Mahesh Jethmalani, learned senior counsel for the respondent No. 1 raised a preliminary objection with regard to the maintainability of this application. He submitted that this Court (Coram: A.S. Gadkari, J.), vide order dated 14th September, 2017 passed in Anticipatory Bail Application No. 1599 of 2017 and other connected applications, has held that applications for transit anticipatory bail are not maintainable. Mr. Jethmalani, learned senior counsel, further submitted that although notice under Section 41-A has been sent to the applicants, today, there is no apprehension of immediate arrest and makes a statement on instructions, that if the applicants appear before the Investigating Officer on 6th April, 2018, and if the Investigating Officer considers it necessary, he would not effect arrest of the applicants till 9th April, 2018.

4. Mr. Mihir Desai, learned senior counsel for the applicants submitted that there is no impediment to grant transit anticipatory bail. He submitted that when the order dated 14th September, 2017 was passed by this Court (Coram: A.S. Gadkari, J.) in the aforesaid applications, it was not pointed out to the learned Judge that the order dated 14th June, 2013 (Sandeep Lohariya's case) passed by the Apex Court was only an interim order and that an interim order does not finally and conclusively decide an issue and as such cannot be termed as a precedent. He submitted that it appears that the order dated 1st August, 2013 passed by the Apex Court disposing of the application finally in Sandeep Sunilkumar Lohariya vs. Jawahar Chelaram Bijlani @ Suresh & Ors., was also not placed before Justice Gadkari. Mr. Mihir Desai relied on the judgment of the Apex Court in the case of State of Assam vs. Barak Upatyaka D.U. Karmachari Sanstha (2009) 5 SCC 694, in particular, para 21 of the said judgment to show that an interim order containing prima facie findings are only tentative in nature. He submitted that the interim order dated 14th June, 2013 passed in Sandeep Lohariya's case was, in the facts of that case, having regard to the manner in which the accused therein, had applied for transit anticipatory bail in Madhya Pradesh Court, when infact, his anticipatory bail application was rejected by the Bombay High Court and confirmed by the Supreme Court. He submitted that the Division Bench judgment in the case of N.K. Nayar, Director, Hastinapur Metals Ltd. vs. State of Maharashtra & Ors. 1985 Mh. L. J. 450 has held that transit anticipatory bail application was maintainable and that the said Division Bench judgment is binding on this Court. He also relied on the order of this Court (Coram: Mrs. Mridula Bhatkar, J.) dated 31st January, 2014 granting transit anticipatory bail to the very applicants, relying on the judgment of the N.K. Nayar (supra).

5. Perused the papers and the orders and judgments relied upon by the parties. In N.K. Nayar (supra), the Division Bench of this Court was called upon to consider whether the High Court has jurisdiction to grant anticipatory bail to persons apprehending arrest in offences registered in another State. The Division Bench of this Court observed that when an application for transit anticipatory bail is made, the real cause for making an application under Section 438 of the Code of Criminal Procedure, is the contemplated arrest of a person. It was further observed that if the arrest is likely to be made within the jurisdiction of the Court, where an application for transit bail is filed, is not the Court where criminal proceedings are initiated, yet the concerned person, has the remedy of applying for transit anticipatory bail. The Division Bench referred to the judgments of the Karnataka High Court in the case of Dr. L.R. Naidu vs. State of Karnataka 1984 Cr. L. J. 757 and Calcutta High Court in the case of B.R. Sinha vs. The State 1984 Cr. L. J. 61 and observed that the Court would have jurisdiction to entertain applications, even if the offences are said to have been committed outside Maharashtra. It was further observed that there were no inbuilt restrictions in Section 438 itself, when a Court is considering an application for anticipatory bail, however, this discretionary power is to be exercised by imposing restrictions and conditions, if required. Accordingly, the Division Bench in exercise of the powers under Section 438 Cr. P.C. granted transit anticipatory bail to the applicant therein, for a period of one month to enable them to move the appropriate Court for seeking appropriate orders.

6. Relying on the said Division Bench judgment in the case of N.K. Nayar (supra), this Court (Coram: Mrs. Mridula Bhatkar, J.) was pleased to grant transit anticipatory bail for four weeks to the aforesaid applicants i.e. Javed Anand and Teesta Atul Setalvad vide order dated 31st January, 2014. This Court (Coram: Mrs. Mridula Bhatkar, J.) in the said order dated 31st January, 2014 observed in para 8 as under:

"8. Generally the powers of High Courts in the cases of anticipatory bail are limited to its territorial jurisdiction and the power cannot be usurp by disregarding the principle of territorial jurisdiction which is in the interest of the comity of the Courts. However, temporary relief to protect liberty and to avoid immediate arrest can be given by this Court."

7. In the case of Dr. Augustine Francis Pinto & Anr. vs. The State of Maharashtra & Ors., and other connected applications, this Court (Coram: A.S. Gadkari, J.) vide order dated 14th September, 2017, placing implicit reliance on the interim order dated 14th June, 2013 of the Apex Court in Sandeep Lohariya's case (supra), held that the application seeking transit anticipatory bail was not maintainable. It was observed in paras 9 and 10 as under:

"9] It appears from the record that, at the time of deciding the case of Teesta A. Setalvad & Anr. (supra), the Order/decision of the Supreme Court in the case of Sandeep Lohariya (supra) dated 14th June 2013 was not brought to the notice of the learned Single Judge of this Court and therefore the learned Single Judge did not had an occasion to consider the said observations of the Supreme Court. Therefore, according to me, the decision of the learned Single Judge of this Court in the case of Teesta A. Setalvad (supra) does not have binding effect of a precedent. It further clearly appears to me that in view of the observations made by the Supreme Court in the case of Sandeep Lohariya (supra), the view expressed by the Division Bench of this Court in the case of N.K. Nayar & Anr. (supra) does not hold the field as of today.

10] As noted above, the Supreme Court in the case of Sandeep Lohariya (supra) has categorically observed that, an application for anticipatory bail in the nature of transit bail, which in the view of their Lordships has no provision under the Code of Criminal Procedure, 1973 and it is difficult to comprehend under what provisions and under what authority of law such an application was even registered by the concerned High Court."

(emphasis supplied)

8. It is pertinent to note, that in the case of Sandeep Lohariya (supra), the Apex Court in its interim order dated 14th June, 2013 had observed as under:

"These special leave petitions have come up before this Court challenging the order passed by the High Court of Madhya Pradesh Bench at Indore in which notice has already been issued by this Court and the impugned order has been stayed. The matter came up before us in the category of 'notice served' cases and on perusal of the impugned order and hearing the counsel for the parties, we are amazed and shocked to see the nature of the order passed by the High Court of Madhya Pradesh in M. Cr. C. No. 3807 of 2013 whereby the High Court has granted transit bail to the respondent no. 1 even without notice to the State of Maharashtra where the case against the respondent no. 1/accused was registered; although admittedly he is an accused in a case under Sections 302, 120B, 34 of the Indian Penal Code, 1860 and under Section 3 and 25 of the Arms Act, which offence took place at Police Station Washi, Navi Mumbai, Maharashtra. The respondent no. 1/accused thereafter applied for anticipatory bail before the High Court of Bombay which was rejected vide order dated 25.02.2013. Thereafter, the respondent no. 1/accused appears to have filed an application for anticipatory bail in the nature of transit bail, which in our view has no provision under the Code of Criminal Procedure, 1973. The High Court of Madhya Pradesh, without considering as to whether the bail application was maintainable before it or not in regard to an incident which took place at Police Station Washi, Navi Mumbai, Maharashtra and the High Court of Bombay had already rejected the anticipatory bail application for the respondent no. 1, ignoring the fact that the order of the High Court of Bombay was upheld by this Court in SLP (Cri.) No. 2790/2013 vide order dated 29.04.2013. Learned senior counsel for the respondent submitted that one of the matter was dismissed as withdrawn. However, the implication of this order is quite clear that the order of the High Court of Bombay was refused to be interfered with by this Court and the SLP against the same practically was dismissed and the order of the High Court of Bombay was upheld. Thereafter, the respondent no. 1 had also filed a second special leave petition SLP (Cri.) No. 4297/2013 against the same order, which also was dismissed vide order dated 13.05.2013. In spite of the aforesaid orders, the High Court of Madhya Pradesh entertained anticipatory bail application termed as transit bail application.

It is difficult to comprehend under what provisions and under what authority of law such an application was even registered by the High Court of Madhya Pradesh. In our view it is an absolutely shocking order which has been brought to the notice of this Court, hence we deem it appropriate to direct the Petitioner-State of Maharashtra as also the Petitioner-complainant/son of the deceased to implead the High Court of Madhya Pradesh in these petitions. Thereafter a notice be issued to the High Court of Madhya Pradesh through the Registrar indicating to file reply as to how the bail application of the respondent no. 1/accused was even registered by the High court before it was taken up by the Bench and also as to whether the Bench was apprised of the fact of rejection of his anticipatory bail application by the High Court of Bombay, which was upheld by the Supreme Court of India on two occasions.

List for further arguments on 12.07.2013.

In the meantime the respondent no. 1/accused is directed to surrender forthwith before the concerned Trial Court in the State of Maharashtra."

9. Prima facie, it appears that the said observations were made in the facts of that case, considering the fact, that the respondent therein had filed a transit bail in the High Court of Madhya Pradesh after his anticipatory bail application was rejected by the Bombay High Court and confirmed by the Supreme Court on two occasions. It appears that it is in this context that the Apex Court had observed the aforesaid. The said order dated 14th June, 2013 was an interim order and the matter was listed for arguments on 12th July, 2013. Finally, the matter came up on 1st August, 2013 and the SLPs were disposed of as infructuous, since the respondent-accused therein had surrendered. It is not in dispute that the order dated 14th June, 2013, was an interim order.

10. Mr. Desai, submitted that the interim order dated 14th June, 2013, cannot be considered as a binding precedent. To substantiate his submission, learned senior counsel relied on the judgment of the Apex Court in the case of State of Assam (supra), in particular para 21 of the said judgment. Para 21 reads as under:

"21. A precedent is a judicial decision containing a principle, which forms an authoritative element termed as ratio decidendi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing."



11. It is pertinent to note that Section 438 enables a person to apply for anticipatory bail. No doubt, generally the powers of the High Courts in anticipatory bail applications are limited to its territorial jurisdiction and the said powers cannot be usurped by disregarding principle of territorial jurisdiction, which is in the interest of the comity of the Courts, however, there may be cases, where, if the said protection is not granted, the liberty of an individual would be jeopardised.

12. Prima facie, this Court is in agreement with the submissions advanced by Mr. Desai. This Court (Gadkari, J.), as noted above, has held that an application seeking transit anticipatory bail is not maintainable and I having been satisfied that the liberty of an individual, in a given case, cannot be curtailed for want of territorial jurisdiction, am constrained to refer the following issues to a larger bench:

(1) Whether an application for transit anticipatory bail for a short duration, is maintainable in order to enable the accused to approach the Court of appropriate jurisdiction for seeking regular anticipatory bail for a short duration?

(2) Whether the order dated 14th September, 2017 passed by Gadkari, J. in Anticipatory Bail Application No. 1599 of 2017 and other connected applications, on the basis of the observations made by the Apex Court in an interim order dated 14th June, 2013 would lay down the law, that an application seeking transit anticipatory bail is not maintainable?

(3) Whether the judgment of the Division Bench of this Court in the case of N.K. Nayar (supra) is a binding precedent?

13. It is pertinent to note, that the applicant No. 2 has already sought permission to travel abroad from 10th April, 2018 to 15th May, 2018 and the said permission was granted by the Court of the Metropolitan Magistrate, Mumbai, as well as the Sessions Court, Ahmedabad. The applicant No. 2 has already executed the bond as directed by both the Courts, pursuant to the permission granted by both the Courts.

14. Mr. Desai, learned senior counsel for the applicants states that, in the meantime, the applicants on their own volition, wi

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thout prejudice to the merits of the matter, including the issue of jurisdiction of the concerned police station, to entertain the FIR, are willing to appear before the concerned Officer on 6th April, 2018 at 10:00 a.m. He states that the applicant No. 1 will thereafter, appear as and when called for. 15. Stand over to 2nd May, 2018. 16. In the meantime, till the next date, the applicants are granted interim transit bail till 2nd May, 2018. Accordingly, the following order is passed: ORDER (i) In the event of the arrest, the applicants are granted interim transit bail till 2nd May, 2018, on executing P.R. Bond in the sum of Rs. 25,000/- each, with one or two sureties in the like amount; (ii) The applicants shall appear before the concerned Officer on 6th April, 2018 at 10:00 a.m. Thereafter, the applicant No. 1 shall appear as and when called for; (iii) Mr. Pranav Badheka undertakes to inform the above order passed today, to the concerned Investigating Officer; (iv) Registry to place the aforesaid application before the Hon'ble the Acting Chief Justice to enable her to constitute a larger bench to decide the framed issues; (v) In the eventuality, till the next date i.e. 2nd May, 2018, the reference is not enlisted for hearing, the applicants are at liberty to renew their prayer for continuation of the interim relief; (vi) At this stage, learned counsel for the respondent No. 1-State of Gujarat seeks stay of the order. The request for stay is rejected; (vii) Stand over to 2nd May, 2018. All concerned to act on the authenticated copy of this order.
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