The Supreme Court on Thursday (April 23) flagged a serious procedural irregularity in Bihar and Jharkhand, noting the practice of litigants approaching the Sessions Court / High Court for anticipatory bail in complaint cases on the apprehension that the mere issuance of process would lead to their arrest. The Court clarified that once a process is issued, the litigant needs to only comply with the process, as no arrest can take place in a complaint case unless a non-bailable warrant is issued to effect process.
“Once the Court takes cognizance and issues summons, all that the accused has to do is to appear before that Court and join the proceedings. Why should the accused go before the Sessions Court or the High Court, as the case may be, and pray for anticipatory bail? Police has no power to arrest the accused in a complaint case unless there is a non bailable warrant issued by that Court along with the summons.”, observed a bench of Justice JB Pardiwala and Justice Ujjal Bhuyan.
The bench made this observation while hearing an appeal against the rejection of an anticipatory bail by the Jharkhand High Court. The Jharkhand High Court not only entertained and then rejected the anticipatory bail plea in a complaint case, but also directed the Appellant to surrender before the trial court, leading to an appeal before the Supreme Court by the accused person. Disapproving the High Court's direction requiring the appellant to surrender before the trial court and seek regular bail in a complaint case, the Court expressed concern that such an approach led to an unnecessary appeal before it, attributing this to an incorrect application of law by the High Court.
“Unnecessarily anticipatory bail applications are entertained and when rejected the litigants have to travel all the way upto the highest Court of this Country. We also remind the High Court that the direction issued that the petitioner should surrender and seek regular bail before the Court was also wholly without jurisdiction.”, the court observed.
By way of illustration, the Court explained that where a Magistrate takes cognizance on a private complaint but postpones the issuance of process pending an inquiry under Section 202 Cr.P.C., even if such inquiry is entrusted to the police, it does not confer upon them the power to arrest during the course of that inquiry. “If a magistrate orders a Police inquiry under Section 202 and asks the police to give a report, then whether in the course of such inquiry, the police can arrest the accused. The answer is an emphatic “NO”, Police has no powers to arrest even during the course of the inquiry under Section 202 of the Cr.PC.”, the court held.
Sessions Court Or High Courts not empowered to order litigant to surrender in a complaint case The Court clarified that although the Sessions/High Court can reject the anticipatory bail plea, but it is impermissible for them to order surrender. “If the Court wants to reject the anticipatory bail, it may do so but the Court has no jurisdiction to say that the petitioner should now surrender.”, the court held. In terms of the aforesaid the appeal was disposed of, with a direction to the Registry “to forward one copy of this order to the Registrar General of the High Court of Bihar and also the Registrar General of the High Court of Jharkhand, respectively who in turn shall place this order before the Hon'ble Chief Justice of the respective High Courts.”
