1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR CRIMINAL APPLICATION NO. 3093/2009 (Mohammad Iqbal Sk.Rahim vs State of Maharashtra ) Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order Mr P S Patil Adv. for applicant Mr. D B Patel APP for Respondent-State C ORAM : A.P. BHANGALE, J. DATED : 21st August, 2009. 1. Heard learned counsel for respective parties. 2. By this application, the applicant prayed for grant of anticipatory bail in connection with Crime No.220/2005 for offence punishable under sections 147, 148, 149,323, 326 read with section 34 of the Indian Penal Code, registered at City Kotwali Police Station, Amravati. 3. Learned counsel for the applicant wants to rely upon the ruling in Bharat Chaudhary and another vs. State of Bihar reported in 2003 (4) Crimes 264 (SC), to argue that an application for anticipatory bail can be entertained after charge-sheet is filed or cognizance is taken in a suitable case. Thus, it is contended that merely because the Court has taken cognizance of complaint or the investigating agency has filed charge-sheet there is no bar itself to prevent High Court from granting anticipatory bail in appropriate case. It appears that the case referred to was in connection with accusations u/s 504, 498A and 406 IPC read with section 3 & 4 of the Dowry Prohibition Act and apprehending their arrest, husband and wife had moved the Court as their daughter-in-law was making accusations against them. Under these circumstances, the Hon’ble Apex Court has observed that it did not find any restriction or absolute bar on the concerned Court in granting anticipatory bail even in cases where either cognizance has been taken or charge-sheet has been filed. Learned Advocate also contended that the name of the applicant -accused was not 2 mentioned in the FIR and, therefore, he is entitled to anticipatory bail. 4. Learned APP objected the prayer on the ground that earlier also the applicant has moved the Sessions Judge, Amravati who, by order dated 7.7.2009 in Misc. Cri. Application No.364/2009 rejected anticipatory bail application on the ground that the complaint was lodged on 8.9.2005 and rest of the accused involved were arrested and charge-sheet was filed and the present applicant was absconding since beginning and by showing him so the charge-sheet came to be filed. The learned APP in view of the Salauddin Sheikh vs. State of Maharashtra reported in AIR 1996 SC 1042 ( 3 Judges’ Bench ruling ), contended that the anticipatory bail orders can be of limited duration and ordinarily on the expiry of that duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter, on an appreciation of evidence placed before it after the investigation has made progress and charge sheet is submitted. Thus, ordinarily, the Court granting anticipatory bail should not substitute itself with the original Court which is expected to deal with the offence. It is that Court to consider having regard to the material placed before it as to whether the accused is entitled to bail. Reference is also made to the ruling in the case of Hemanta Kumar Nayak vs. State of Orissa reported in 2000 Cri.L.J. 3267 by the learned APP to contend that pre- arrest bail cannot be granted after submission of charge-sheet against the accused. 5. Considered the legal position which is well-established since Salauddin Shaikh’s case referred to above that anticipatory bail be granted only for a limited period within which the applicant/ accused shall move the regular Court, surrender himself, apply for bail on merits in the regular Court on the basis of material produced before it and may either grant or refuse to grant the bail. It is the correct procedure to follow particularly when the case is old arising from Crime No. 220/2005 reported at City Kotwali Police Station, Amravati. Therefore, without expressing any opinion on merits as to whether the applicant/ accused is absconding or not, as also whether he is entitled to grant bail or not, the 3 matter must be left to the regular Court to be decided in accordance with law and on its own merits. However, in order to enable the applicant to move the regular Court till the plea for bail on merits is considered, the following order is passed : In the event of applicant’s arrest in respect of Crime No.220/2005 reported at City Kotwali Police Station Amravati for offence punishable under sections 147, 148, 149,323, 326 read with section 34 of the Indian Penal Code, he be released upon executing PR bond in the sum of Rs. 25,000/- with one or more sureties in the like amount, provided that the applicant shall approach the regular Court on or before 7th September, 2009; surrender himself and apply for bail on merits. If such an application is moved, the regular Court to deal with it on its own merits and in accordance with law and hear it as expeditiously as possible. The applicant, if he avails of the temporary anticipatory bail, shall attend the Investigating Officer as and when required; shall not commit any crime while on bail; shall inform the fixed address or change in the address with mobile/cellphone to the I.O. It is made clear that the anticipatory bail is granted for a temporary period which would stand automatically expire on 7th September, 2009. Application stands disposed of accordingly. Humdast granted. JUDGE. sahare