Dismissed

Rajeshwar Prasad Dwivedi v. State of Chhattisgarh

Chhattisgarh HC14 Mar 2023WPCR/141/2023

Case brief

AI extract

What is this about?

The High Court clarified that despite a statutory bar under Section 15 of the Chhattisgarh Protection of Depositors' Interest Act, 2005 on Section 438 CrPC anticipatory bail, the bar does not apply where the complaint fails to make out a prima facie case under the Act.

What did the court decide?

The writ petition for anticipatory bail was finally disposed of; the petitioner was not granted the relief at this stage.

Rajeshwar Prasad Dwivedi Vs State… — Constitutional and Fundamental Rights | Chhattisgarh HC (2023)

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AFR

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{W.P.(Cr.)No.141/2023}

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Writ Petition (Cr.) No.141 of 2023

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Rajeshwar Prasad Dwivedi, S/o Late Shri Daya Shankar Dwivedi, aged about 61 years, R/o Village & Post Tedesara, Distt. Rajnandgaon (C.G.)

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---- Petitioner

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Versus

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State of Chhattisgarh, through the Secretary, Department of Home, Mahanadi Bhawan, Nawa Raipur, Atal Nagar, District Raipur (C.G.)

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Station House Officer of Police Station Gandhi Nagar, Ambikapur Dehat, Distt. Sarguja (C.G.)

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Chainsai Rajwade, S/o Late Shri Ratan Sai, aged about 59 years, R/o Sonpur Khurd, Ambikapur, Distt. Sarguja (C.G.)

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---- Respondents

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For Petitioner: Mr. Ajay Pal Singh, Advocate. For Respondents No.1 and 2 / State: -

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Mr. Ashish Tiwari, Govt. Advocate.

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Hon'ble Shri Sanjay K. Agrawal and H on’ble Shri Radhakishan Agrawal, JJ.

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Order On Board (14/03/2023)

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Sanjay K. Agrawal, J.

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The petitioner has been arraigned as an accused in FIR under Crime No.302/2021 registered at Police Station Ambikapur Dehat, Distt. Surguja for the offence punishable under Section 420 read with Section 34 of the IPC and ultimately, on investigation, in final report, offences punishable under Sections 4, 5 & 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 and Section 10 of the Chhattisgarh Protection of Depositors’ Interest Act, 2005 (for short, ‘the Act of 2005’) have also been added. The

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{W.P.(Cr.)No.141/2023}

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petitioner made application under Section 438 of the CrPC for grant of anticipatory bail before the Court of Session which was ultimately rejected and thereafter, he filed M.Cr.C.(A)No.1007/2021 before this Court. This Court by order dated 27-9-2021 (Annexure P-6), rejected the application principally on the ground that by virtue of Section 15 of the Act of 2005, application for anticipatory bail under Section 438 of the CrPC is not maintainable. By way of this petition, the petitioner has sought anticipatory bail stating inter alia that since anticipatory bail provision with regard to Section 438 of the CrPC is not applicable, therefore, no prima facie case is made out against the petitioner and he is entitled for anticipatory bail, as the anticipatory bail application is not maintainable by virtue of Section 15 of the Act of 2005.

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Submissions: -

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Mr. Ajay Pal Singh, learned counsel appearing for the petitioner, would submit that Section 15 of the Act of 2005 takes away the right of the petitioner in availing the anticipatory bail which the petitioner would have otherwise been entitled to. According to him, Section 438 of the CrPC is a most essential safeguard for liberty of a person and that it is found necessary to meet the obvious cases of misuse of police power. He would rely upon the decision of the Supreme Court in the matter of Hema Mishra v. State of Uttar Pradesh and others 1. He would finally submit that considering the allegations in the FIR and facts and circumstances of the case, the petitioner is entitled for anticipatory bail.

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1 (2014) 4 SCC 453

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{W.P.(Cr.)No.141/2023}

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Mr. Ashish Tiwari, learned State counsel, has brought legal position with respect to grant of anticipatory bail when there is specific statutory bar under the special Act like Section 15 of the Act of 2005 and would submit that this is not the case where the petitioner is entitled for the privilege of anticipatory bail by way of writ petition.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and went through the record with utmost circumspection.

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Legal position: -

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The law governing grant of anticipatory bail in writ petition is well settled. The Constitution Bench of the Supreme Court in the matter of Kartar Singh v. State of Punjab 2 has held that a claim for prearrest protection is neither a statutory nor a right guaranteed under Article 14, Article 19 or Article 21 of the Constitution of India and observed in sub-para (17) of para 368 as under: -

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“368. (17) Though it cannot be said that the High Court has no jurisdiction to entertain an application for bail under Article 226 of the Constitution and pass orders either way, relating to the cases under the 1987 Act, that power should be exercised sparingly, that too only in rare and appropriate cases in extreme circumstances. But the judicial discipline and comity of courts require that the High Courts should refrain from exercising the extraordinary jurisdiction in such matters.”

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The Supreme Court in Hema Mishra (supra) taking note of its earlier Constitution Bench decision in Kartar Singh (supra) has held that in appropriate cases the High Court is empowered to entertain the petition under Article 226 of the Constitution of India

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2 (1994) 3 SCC 569

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{W.P.(Cr.)No.141/2023}

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where the main relief itself is against arrest and when provisions of Section 438 of the CrPC are not available to the accused. It was further held that this power is to be exercised with extreme caution and sparingly in those cases where arrest of a person would lead to total miscarriage of justice, and observed in paragraphs 30, 31, 34, 35 & 36 as under: -

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“30. It is pertinent to explain that there may be imminent need to grant protection against pre-arrest. The object of this provision is to relieve a person from being disgraced by trumped up charges so that liberty of the subject is not put in jeopardy on frivolous grounds at the instance of the unscrupulous or irresponsible persons who may be in charge of the prosecution. An order of anticipatory bail does not in any way, directly or indirectly, take away for the police their right to investigate into charges made or to be made against the person released on bail.

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The purposes for which the provisions of anticipatory bail are made are quite obvious. One of the purposes of the arrest is that the accused should be available to the investigating machinery for further investigation and questioning whenever he is required. Another purpose is that the trial should not be jeopardized and for this purpose the restrictions on the movements of the accused are necessary. The genuineness of the alleged need for police custody has to be examined and it must be balanced against the duty of courts to uphold the dignity of every man and to vigilantly guard the right to liberty without jeopardizing the state objective of maintenance of law and order.

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xxx xxx xxx

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It would be pertinent to mention here that in light of the above mentioned statements and cases, the High Court would not be incorrect or acting out of jurisdiction if it exercises its power under Article 226 to issue an appropriate writ or direction or order in exceptional cases at the behest of a person accused of an offence triable under the Act or offence jointly triable with the offences under the Act.

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It is pertinent to mention that though the High Courts have very wide powers under Article 226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the judicial consideration and well established principles, so much so that while entertaining writ petitions for granting interim protection from arrest, the Court would not go on to the extent of including the provision of anticipatory bail as a blanket provision.

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Thus, such a power has to be exercised very cautiously keeping in view, at the same time, that the provisions of Article 226 are a devise to advance justice and not to frustrate it. The powers are, therefore, to be exercised to prevent miscarriage of justice and to prevent abuse of process of law by the authorities indiscriminately making pre-arrest of the accused persons. In entertaining such a petition under Article 226, the High Court is supposed to balance the two interests. On the one hand, the Court is to ensure that such a power under Article 226 is not to be exercised liberally so as to convert it into Section 438 CrPC proceedings, keeping in mind that when this provision is specifically omitted in the State of Uttar Pradesh, it cannot be resorted to as back door entry via Article 226. On the other hand, wherever the High Court finds that in a given case if the protection against pre-arrest is not given, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending trial, the High Court would be free to grant the relief in the nature of anticipatory bail in exercise of its power under Article 226 of the Constitution. ...”

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Finding: -

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Reverting to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in Hema Mishra (supra) and considering the facts and circumstances of the case and allegations against the petitioner, we are not inclined to entertain the writ petition seeking anticipatory bail to the petitioner herein as we do not find that any miscarriage of justice has

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{W.P.(Cr.)No.141/2023}

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occasioned to the petitioner herein. However, we wish to clarify certain aspects qua the bar of anticipatory bail under Section 15 of the Act of 2005.

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Bar of anticipatory bail under Section 15 of the Act of 2005: -

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In order to consider the question involved qua bar of Section 438 of the CrPC, it would be appropriate to notice Section 10 of the Act of 2005 which states as under: -

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“10. Punishment for defaults by financial establishment – Where any financial establishment fraudulently defaults or any financial establishment acts in a calculated manner with an intention to defraud the depositors; every person including the promoter, partner, director, manager or any other person or an employee responsible for the management of or conducting of the business or affairs or of such financial establishment shall be punished with imprisonment for a term which shall not be less than 3 years but may extend to ten years and with fine which shall not be less than one lakh rupees but may extend to five lakhs rupees and such financial establishment shall also be liable to fine not less than three lakhs rupees but may extend to ten lakhs rupees.”

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A careful perusal of the aforesaid provision would show that for commission of offence under the Act, the offender will be punished with imprisonment for a term which shall not be less than three years but may extend to ten years and also with fine.

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10.By virtue of Part II – Classification of offences Against Other laws under the First Schedule of Classification of Offences appended to the CrPC, offence punishable with death, imprisonment for life, or imprisonment for more than 7 years, would be cognizable, nonbailable and triable by Court of Session.

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{W.P.(Cr.)No.141/2023}

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11.Section 15 of the Act of 2005 provides as under: -

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“15. Anticipatory bail not to be granted – Notwithstanding anything contained in section 438 of the Code of Criminal Procedure, 1973 (No.2 of 1974) no application for anticipatory bail shall lie for an offence punishable under the Act.”

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12.By virtue of Section 15 of the Act of 2005, no application for anticipatory bail would lie for an offence punishable under the Act of 2005, as the provisions of the Act of 2005 would have overriding effect over Section 438 of the CrPC. Right of the accused in anticipatory bail is definitely a most essential safeguard for liberty of a person and it is necessary to meet the obvious cases of misuse of police power. Section 15 of the Act of 2005 bars the application of Section 438 of the CrPC for grant of anticipatory bail for an offence punishable under the Act of 2005. However, their Lordships of the Supreme Court in umpteen number of cases have held that where prima facie case is not made out, the Court is not bereft of its power to grant benefit of anticipatory bail in appropriate cases of exceptional nature.

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13.In the matter of Prathvi Raj Chauhan v. Union of India and others 3 while examining challenge to the constitutionality of Section 18-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘the Act of 1989’), their Lordships of the Supreme Court have examined the scope of Section 18 of the Act of 1989 also with particular reference to maintainability of application for grant of anticipatory bail under Section 438 of the CrPC as against statutory bar created under Section 18 of the Act

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3 (2020) 4 SCC 727

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{W.P.(Cr.)No.141/2023}

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of 1989 and it has been held that despite such a statutory bar created, such a bar may not come in the way for grant of anticipatory bail by taking recourse to the provision contained in Section 438 of the CrPC where complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989. It was observed as under :

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“11. Concerning the applicability of provisions of Section 438 CrPC, it shall not apply to the cases under the 1989 Act. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18-A(i) shall not apply. We have clarified this aspect while deciding the review petitions.”

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In separate but concurring judgment rendered by S. Ravindra Bhatt,

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J., also it was held as under :

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“33. I would only add a caveat with the observation and emphasize that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament. ”

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14.Thereafter, recently, in the matter of Rahna Jalal v. State of Kerala and another 4, their Lordships of the Supreme Court have considered the issue, whether the provisions of Section 7(c) of the

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4 (2021) 1 SCC 733

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{W.P.(Cr.)No.141/2023}

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Muslim Women Act, 2019 bar the grant of anticipatory bail under Section 438 of the CrPC, in context of Section 18 of the Act of 1989 and held that a statutory exclusion of the right to access remedies for bail is construed strictly, for a purpose. It was further held that excluding access to bail as a remedy, impinges upon human liberty. Their Lordships observed in paragraphs 20, 22, 24 & 25 of the report as under: -

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“20. Certain other statutes expressly exclude the provisions of Section 438 CrPC. The provisions of Section 7(c) of the Act must be distinguished from the provisions which are contained in such statutes. For instance, the Maharashtra Control of Organised Crime Act, 1999 (“MCOCA”) explicitly excludes the application of Section 438 CrPC. Section 21(3) of MCOCA stipulates:

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“21. (3) Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under this Act.”

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Section 18 explicitly excludes the application of Section 438 CrPC in relation to any case involving the arrest of any person on an accusation of having committed an offence under the Act. Sub-section (2) of Section 18-A specifically excludes the application of the provisions of Section 438 CrPC, notwithstanding any judgment, order or direction of a court.

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The same view has been taken in Prathvi Raj Chauhan³ in the concurring judgment of S. Ravindra Bhat, J. in the following observations: ( Prathvi Raj Chauhan case³ , SCC p. 759, para 32)

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“32. As far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a prearrest bail.”

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{W.P.(Cr.)No.141/2023}

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Thus, even in the context of legislation, such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, where a bar is interposed by the provisions of Section 18 and sub-section (2) of Section 18-A on the application of Section 438 CrPC, this Court has held that the bar will not apply where the complaint does not make out “a prima facie case” for the applicability of the provisions of the Act. A statutory exclusion of the right to access remedies for bail is construed strictly, for a purpose. Excluding access to bail as a remedy, impinges upon human liberty. Hence, the decision in Chauhan³ held that the exclusion will not be attracted where the complaint does not prima facie indicate a case attracting the applicability of the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.”

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15.Reverting finally to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments, it is quite vivid that where no prima facie material exists warranting arrest in complaint or where the complaint does not make out a prima facie case under the Act of 2005, the concerned Court will have power and jurisdiction to consider the application for grant of anticipatory bail in appropriate case of exceptional nature and in that case, bar under Section 15 of the Act of 2005 would not come in way to consider the application under Section 438 of the CrPC. Accordingly, we clarify the legal position.

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16.It is made clear that this Court has declined to entertain the writ petition finding that no case is made out to grant anticipatory bail in writ jurisdiction / Article 226 of the Constitution of India, however, this will not bar the petitioner to proceed in accordance with law in light of the legal position clarified herein-above.

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{W.P.(Cr.)No.141/2023}

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17.The writ petition stands finally disposed of. No order as to cost(s).

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Sd/Sd/(Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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Soma

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Page 12 of 12

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{W.P.(Cr.)No.141/2023}

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Head Note

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Bar of Section 15 of the Chhattisgarh Protection of Depositors’ Interest Act, 2005 will not apply where the complaint does not make out a prima facie case under the Act of 2005.

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Rajeshwar Prasad Dwivedi v. State of Chhattisgarh

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Rajeshwar Prasad Dwivedi v. State of Chhattisgarh

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