Rajinder Vs. State - Court Judgment

Excerpt:
criminal procedure code, 1973 - section 438--anticipatory bail--abscondance--no steps taken to set aside the process initiated against the accused to declare him proclaimed offender--the power to grant anticipatory bail cannot be exercised in favor of person likely to abscond or misusing the liberty on bail--order denying anticipatory bail, affirmed. - labour & services disability pension: [vikramajit sen, sanjiv khanna & s.l.bhayana,jj] army act (46 of 1950), section 192 & pension regulations for the army (1961), regulation. 173 claimant was on casual leave sustained injury which contributed to invalidation for military service claim for disability pension held, to claim disability pension by military personnel it requires to be established that the injury or fatality suffered by the concerned claimant bears a causal connection with military service. secondly, if this obligation exists so far as discharge from the armed force on the opinion of a medical board the obligation and responsibility a fortiori exists so far as injuries and fatalities suffered during casual leave are concerned. thirdly, as a natural corollary it is irrelevant whether the concerned personnel was on causal or annual leave at the time or at the place when and where the incident transpired. this is so because it is the causal connection which alone is relevant. fourthly, since travel to and fro the place of posting may not appear to everyone as an incident of military service, a specific provision has been incorporated in the pension regulations to bring such travel within the entitlement for disability pension if an injury is sustained in this duration. fifthly, it cannot be said that each and every injury sustained while availing of casual leave would entitle the victim to claim disability pension. sixthly, provisions treating casual leave as on duty would be relevant for deciding questions pertaining to pay or to the right of the authorities to curtail or cancel the leave. lastly, injury or death resulting from an activity not connected with military service would not justify and sustain a claim for disability pension. this is so regardless f whether the injury or death has occurred at the place of posting or during working hours. this is because attributability to military service is a factor which is required to be established. - it is also well established that this power is not meant to assist an accused person to avoid due process of law.j.b. goel, j.1. this is an application for anticipatory bail.2. the petitioner had apparently absconded. proceedings under sections 82, 83 and 299 of the code of criminal procedure (for short the 'code') were held and the case was consigned to record room.3. the petitioner has been challaned in fir no. 563/93 of police station punjabi bagh under section 279/338 ipc. he was summoned for 24.5.1996. the process server took the summons to the address earlier given by the petitioner himself i.e. h.no. 3235, dharampur, gandhi nagar. his father met him who informed that the petitioner was living at his in-law's house at h.no. 9/1904 gali no. 3, kailash nagar, delhi. the process server went there and on making inquiry outside neighborhood of the house, he was informed that the petitioner was present inside his house. his mother-in-law met the process server who told him that the petitioner was not present at that time.4. his surety appeared in court on 24.5.1996 and took time to produce the accused. the accused was not produced. a notice under section 446 of the code was given to the surety on 20.6.1996. he chose not to file any reply to the notice. a penalty of rs. 5,000/- was imposed on him which was paid and he was discharged. non-bailable warrants (nbws) were issued against the accused for 8.8.96 which remained un-executed. proceedings under sections 82/83 of the code were taken and he was declared proclaimed offender and after complying with section 299 of the code, the case file was consigned.5. subsequently, the petitioner approached the sessions court for anticipatory bail. learned addl. sessions judge considered the circumstances but rejected the said application on 10.6.1998.6. now, the petitioner has approached this court for anticipatory bail. the petitioner apparently has not taken appropriate steps to set aside the process already taken against him under sections 82, 83 and 299 of the code including his having been declared as a proclaimed offender.7. learned counsel for the petitioner has contended that the petitioner had shifted from his old residence to kailash nagar; his changed address was given to the process server and the process server had visited there but he was not present at his house; a false report was made by the process server that he was present inside the house of his mother-in-law, that second attempt was not made to serve him on the changed address and in the circumstances various steps taken by the learned trial court are not proper and justified. the learned addl. sessions judge was not justified in not exercising thejurisdiction in granting bail. 8. this is strongly opposed by the learned counsel for the state. in support of his contentions he has relied on the circumstances that the conduct of the petitioner is not proper and he has evaded the process of law and was declared proclaimed offender. the grant of anticipatory bail is discretionary and in the circumstances grant of bail would not be proper and justified.9. admittedly, the petitioner had not given written intimation of his changed address. process server had visited his given address and also the address where he would be available as given by his father. if he was not available he should have taken steps to appear before the io or the court on or before the next date. his surety was unable to produce him and he had to suffer a penalty of rs. 5,000/ for it. the surety must have made search for him and he also could not produce the petitioner in court.10. the power of granting anticipatory bail is somewhat extraordinary in character. it is generally not exercised where there is reason to believe that the accused may abscond or otherwise misuse his liberty while on bail. it is also well established that this power is not meant to assist an accused person to avoid due process of law. the proclaimnation under sections 82/83 of the code has already been against him. the petitioner has not taken any steps to set aside the same. obviously he is evading the due process and is thereby misusing the process of law.11. the learned addl. sessions judge has considered the circumstances of the case but has declined to exercise discretion under section 438 of the code. this discretion cannot be said to have been exercised arbitrarily or unreasonably.12. i do not find any valid ground to interfere in the discretion exercised by the learned addl. sessions judge. this application has no merits and the same is accordingly dismissed.