(1) Apprehending arrest for commission of offences punishable under Sections 294, 506, 323, 452, 392/34 and 342 of the Indian Penal Code (henceforth âIPC) in connection with Crime No. 185/2013 registered at Police Station â Civil Lines, Raipur, present applicants filed their application under Section 438 of the Code of Criminal Procedure (for short âthe Code), which was eventually transferred to the Court of Second Additional Sessions Judge, Raipur for hearing and disposal in accordance with law.
(2) During pendency of the application, learned Public Prosecutor relying upon the newly amended provisions brought into statute book in shape of sub-Section (1-B) of Section 438 of the Code, filed an application stating that presence of the petitioners is necessary at the time of final hearing of the application for anticipatory bail, therefore, the personal presence of the applicant be directed in the interest of justice. The said application was opposed by the present petitioners.
(3) Learned Additional Sessions Judge, Raipur, by its order dated 13.10.2014 allowed the application of prosecution and directed the personal presence of the petitioners at the time of final hearing of the bail petition on 17.10.2014.
(4) Present petitioners, being aggrieved against that part of the order directing personal presence of the petitioners at the time of final hearing of the application for anticipatory bail, have filed the instant petition stating inter alia that though Section 438 (1-B) of the Code has been brought into statute book by the Code of Criminal Procedure (Amendment) Act, 2005 but the said provision has not brought into force as on date under Sub Section (2) of Section 1 of the Code of Criminal Procedure (Amendment) Act, 2005 and, therefore, order directing personal presence of the present petitioners at the time of final hearing of their anticipatory bail being contrary to law, deserves to be set aside.
(5) Appearing for the petitioners, Mr. Goutam Khetrapal, learned counsel would submit that though Section 438 (1-B) has been brought into statute (Cr.P.C.) with effect from 23rd June, 2005 by Code of Criminal Procedure (Amendment) Act, 2005 but the effective date has not been notified in exercise of power conferred under sub-Section (2) of Section 1 of the Code of Criminal Procedure and, therefore, order passed by Additional Sessions Judge is apparently illegal and bad in law, which deserves to be quashed.
(6) Appearing for the State, Shri D.K. Gwalre, learned Govt. Advocate would submit that the order impugned is not supportable in law, as such provisions in shape of Section 438 (1-B) of the Code has not been in force till this date by notification issued by the Central Government.
(7) I have heard learned counsel for the parties and considered the rival submissions made therein and perused the record with utmost circumspection.
(8) Section 438 of the principal Act was amended by Section 38 of the Code of Criminal Procedure (Amendment) Act, 2005 (No. 25 of 2005) with effect from 23.06.2005, which reads as under:-
â(1B) 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.â
(9) A plain perusal of the Code of Criminal Procedure (Amendment) Act, 2005, it appears that the Central Government has to issue notification in the official Gazette regarding the date on which the amended provisions shall come into force.
(10) Thereafter, in exercise of power conferred under sub-Section (2) of Section 1 of the Code of Criminal Procedure (Amendment) Act, 2005 (No.25 of 2005), the Central Government has issued notification on 21st June, 2006, by which certain provisions of amendment Act, 2005 has been brought into force, which states thus:
âMINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, the 21st June, 2006
S.O. 923 (E).- In exercise of the powers conferred by Sub-section (2) of Section 1 of the Code of Criminal Procedure (Amendment) Act, 2005 (No.25 of 2005), the Central Government hereby appoints the 23rd June, 2006, as the date on which the provisions of the said Act, except the provisions of Sections 16, 25, 28(a), 28(b), 38, 42(a), 42(b) 42(f) (iii) and (iv) and 44(a), shall come into force.â
(11) A plain reading of the above stated notification issued by Central Government would show that Section 38 of the Amending Act, 2005 by which Section 438 of the Code has been amended and Section 438(1-B) has been inserted, has not been brought into force by aforesaid notification.
(12) Thus, as on date Section 438(1-B) of the Act, 2005 has not been brought into force by the Central Government by notification in the official gazette as required under sub-Section (2) of Section 1 of the Act, 2005.
(13) The aforesaid legal position has recently been noticed by their Lordships of Supreme Court in case of Sundeep Kumar Bafna V. State of Maharashtra and another [AIR 2014 SC 1745], in which, their Lordships has held that above-stated amendment requiring presence of the persons seeking anticipatory bail (Section 438-1B) has yet not been notified. The relevant paragraph states as under:-
â18. â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦An amendment was proposed to the provisions vide Cr.P.C. (Amendment) Act, 2005 making the presence of the applicant seeking anticipatory bail obligatory at the time of final hearing of the application for enlargement on bail. The said amendment has not been notified yet and kept in abeyance because of two reasons. Firstly, the amendment led to widespread agitation by the lawyers fraternity since it would virtually enable the police to immediately arrest an accused in the event the Court declined to enlarge the accused on bail. Secondly, in the perception of the law Commission, it would defeat the very purpose of the anticipatory bail. The conclusion of the Law Commission, in almost identical words to those extracted above are that: âwhen the applicant appears in the Court in compliance of the Courts order and is subjected to the Courts directions, he may be viewed as in Courts custody and this may render the relief of anticipatory bail infructuousâ. Accordingly, the Law Commission has recommended omission of sub-section (1-B) of Section 438, Cr.P.C.
(14) In the aforesaid judgment Sundeep Kumar Bafna (supra), it has also been held by their Lordships that presence of the person apprehending arrest in the Court is not mandatory and held as under :-
â5. The pandect providing for bail is Chapter XXXIII comprises Section 436 to 450 of the Cr.P.C., of which Sections 437 and 439 are currently critical. Suffice it to state that Section 438 which deals with directions for grant of bail to persons apprehending arrest does not mandate either the presence of the applicant in Court or for his being in custody.â
(15) Thus in view of the aforesaid discussion, it is quite vivid that the Section 438(1B) of the Code requiring the presence of the applicant seeking anticipatory bail at the time of final hearing has not been made effective by the notification issued by the Central Government in the official Gazette under Sub-Section (2) of Section 1 of the Act, 2005 and, therefore, learned Additional Sessions Judge is absolutely unjustified in directing personal presence of the petitioners at the time of final hearing of their application for anticipatory bail, thus the part of the order dated 13.10.2014 directing personal presence of the petitioners at the time of final hearing of their application for anticipatory bail is hereby quashed. It is held that presence of the petitioners at the time of final hearing is not necessary and learned Additional Sessions Judge, Raipur shall decide the petitioners application for anticipatory bail in accordance with law expeditiously.
(16) At this stage, learned counsel for the petitioners submits that by way of present petition, the petitioners are also seeking the relief of judicial enquiry for which, they be granted liberty to file appropriate petition separately, liberty is granted, as prayed for in the interest of justice
(17) Accordingly, the Cr.M.P. is allowed in part.