In CRM-M-25907-2023-PUNJ HC- Court is duty bound to strike balance between individual’s right to personal freedom & investigational right of police: P&H HC imposes cost of Rs 25,000 as accused had not disclosed fact with regard to issuance of non-bailable warrants
Justice Sandeep Moudgil [22-05-2023]

Read Order:  NEELAM RANI v. STATE OF PUNJAB 

Tulip Kanth

Chandigarh, May 23, 2023: The Punjab and Haryana High Court has dismissed a second petition filed under Section 438 CrPC, for grant of anticipatory bail to the petitioner-accused in an FIR registered under Sections 406 and 420 of the IPC while imposing cost of Rs 25,000 which has to be deposited in the Punjab & High Court Bar Clerks' Association Fund.

“...the Court is duty bound to strike a balance between the individuals right to personal freedom and the investigational right of the police, therefore, the provisions of anticipatory bail cannot be allowed to put to abuse at the instance of unscrupulous petitioner”, the Single-Judge Bench of Justice Sandeep Moudgil said.

The Bench had asked the petitioner to show changed circumstances and fact for maintainability of second anticipatory bail petition. It was submitted that the chargesheet had not yet been filed and even after the withdrawal of the earlier petition seeking anticipatory bail, nothing had been done by the Investigating Agency so far.

A perusal of the earlier order indicated that the first petition was withdrawn “after arguing for some time” from where it could be easily inferred that once the Court was not convinced on merits to grant interim protection to the petitioner, the opportunity to withdraw the same was availed and under the garb of withdrawal of the petition, the instant petition had been filed on the same cause of action alleging that challan has not been filed. Far apart from that there was no change of circumstance to bring the instant petition within the parameters of maintainability of second anticipatory bail petition.

Referring to the judgments in Gurubaksh Singh Sibbia vs. State of Punjab & Gaurav Matta vs. State of Haryana (CRM-M-9494- 2023) as well as Section 438 Cr.P.C.,  the Bench opined, “ This Court has to make an effort to strike a balance between the individual's right to personal freedom and the investigational rights of the police. This provision is not to be applied mechanically especially in the light of phraseology “if it thinks fit” as envisaged therein with Sub Section(2) is indicative enough that such order on the face of it must show the reasons for granting anticipatory bail.”

Evidently the discretionary power to the Court does not flow from Article 21 of the Constitution for grant of anticipatory bail but conferred by the Statute enacted by the Parliament, wherein a distinction from the language of Sections 438 and 439 Cr.P.C., is quite evident that the provisions contained in Section 439 flow from Article 21 of the Constitution of India, the Bench asserted.

It was the observation of the High Court that the second or subsequent bail application under Section 438 Cr.P.C., can be filed, if there is a change in the fact-situation or in law, which requires the earlier view being interfered with or where the earlier finding has become obsolete. 

“An accused, who has been denied the bail earlier can move a subsequent application only on in that limited area. If the issue, which had been canvassed earlier, would not be permitted to be re-agitated on the same grounds, as it would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting”, the Bench said.

Noting that the petition was mischievous and a serious attempt had been made before the Court, wherein the fact with regard to issuance of non-bailable warrants had not been disclosed, the Bench held that the petition deserves to be dismissed with cost of Rs 25,000  which shall be deposited in the Punjab & High Court Bar Clerks' Association Fund, Chandigarh.