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Judgment
C.T. Selvam, J.—The petitioner in Crl. O.P. (MD) Nos. 15602 and 15252 of 2012, accused in Crime No. 161 of 2012 on the file of the
respondent, pray for the relief u/s 438 of Cr.P.C. They are alleged to have committed offences punishable under Sections 447, 379, 109, 116,
202, 406, 409 and 420 of IPC and Section 3(1) of TNPPDL Act, Section 4(1), 4(2)(A), 4(3) and 21(b)(v) of Mines and Minerals (Development
and Regulation) Act, 1957, Section 4 of the Explosive Substances Act, 1908 and Sections 120(B), 447, 379, 109, 116, 119, 202, 406, 409 and
420 of IPC r/w. Section 3(1) of TNPPDL Act r/w. Section 4(1), 4(1)A, 21 and 23 of Mines and Minerals (Development and Regulation) Act,
1957, and Section 4 of the Explosive Substances Act, 1908. The petitioner in Crl. O.P. (MD) Nos. 15810 and 16025 of 2012 prays to call for all
records and set aside the order passed in Cr. M.P. No. 5564 of 2012 dated 15.10.2012 on the file of the learned Judicial Magistrate, Melur,
Madurai District.
More than 60 cases stand registered against 55 granite quarrying lease holders. In most of them the allegation is that they have violated
conditions of lease and in doing so committed offences under the Mines and Mineral (Regulations and Development) Act, 1957, The Explosives
Substances Act, Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 and under the IPC. While they have been granted lease in
respect of particular areas they have encroached upon neighbouring lands such as those to be mined by Tamil Nadu Minerals Limited (TAMIN)
and other public areas, tanks, channels, etc. They have illegally transported and exported granite so wrongfully obtained. The first case was
registered on 04.08.2012. More than 250 persons involved in such wrong doing have been named till date. Pursuant to complaints received and
prior to registration of cases, the District Collector, had ordered inspection by as many as 18 teams. It was found that the offending activities had
been rampant for over a period of six or seven years. The loss occasioned to Government presently was assessed at Rs. 2000 Crores but
estimated to be much more.
The offences have been committed by encroachment of areas not leased out to the offenders and through acting in collusion with ''raising
contractors'' of TAMIN. It is informed that raising contractors are persons who have been awarded contract towards excavating the mineral and
are paid a fee on the quantum excavated by them. It is alleged that the raising contractors had not delivered the entire minerals excavated by them
to TAMIN but handed over a larger portion thereof to the lessees, whose benamis they were. Explosive substances had been found housed in the
toilet of one lessee. Investigation in this regard is in progress as also in relation to export of granite illegally obtained, the quantum whereof is to be
ascertained. A comparison of the seigniorage fee paid by the lessees and their transport records with a calculation of the mineral that could have
been excavated from the portion of leasehold lands in respect of which mining operations had been conducted revealed huge discrepancies.
The petitioners are the Directors of company by name M/s. Olympus Granite Pvt. Ltd., which held a lease from Government for quarrying of
granite. In the present case the accusation is that quarrying operations have been conducted by the petitioners in lands other than that leased out to
them and particularly in areas reserved for quarrying by TAMIN. The related transactions in respect of such alleged wrong doing viz., transport
and export are also complained against. Suffice it to state that the general prosecution allegations afore recorded apply also to the present cases.
The petitioners earlier had moved petitions u/s 438 Cr.P.C. in Crl. O.P. (MD) Nos. 11705 and 11697 of 2012 which came to be dismissed on
27.09.2012 and 25.09.2012 respectively.
Appearing in Crl. O.P. (MD) Nos. 15602 & 15252 of 2012 learned Senior Counsel Shri. V. Gopinath submitted that as per the original FIR in
Crime No. 161 of 2012, the commission of offences alleged were under Sections 447, 379 r/w. 3(1) of the TNPPDL Act, Section 4(1), 4(2)(A),
4(3) and 21(b)(5) of the Mines and Mineral (Development and Regulations) Act, 1957. Presently offences under Sections 120(b), 109, 116, 119,
202, 406, 409, 420 of IPC and Section 4 of the Explosive Substances Act and Sections 21 & 23 of the Mines and Minerals (Development and
Regulation) Act, 1957, stand included.
Lease was granted for quarrying in patta land. There absolutely was no material to show that the accused had used explosives. They cannot
vicariously be held liable for use thereof. The Tamil Nadu Property (Prevention of Damage and Loss) Act was intended to address damages
caused to property in the course of political processions/meetings etc. The same provided for payment of compensation by the concerned wrong
doers. On the face of it, such enactment was not applicable. In the absence of any direct overt act attributed to these petitioners or material to
show their involvement, there could be no charge of commission of offences u/s 379 IPC or under the Mines and Minerals (Regulation and
Development) Act, 1957 as the concept of vicarious liability was foreign to such offences.
Learned Senior Counsel submitted that when Directors were sought to be made liable, there must be material to show that they were in charge
of the administration and day-to-day affairs of the company. As the earlier petitions for grant of anticipatory bail moved by these petitioners in Crl.
O.P. (MD) Nos. 11705 and 11697 of 2012 stood dismissed, the petitioners had presently moved a second time for the same relief. Learned
Senior Counsel would inform that A3, one Balasubramaniam and another Director of the company, M/s. Olympus Granite Pvt. Ltd., had been
arrested and subsequently released on bail on 08.10.2012. It was the prosecution stand that such person was vicariously liable and responsible for
the offence committed by the company.
The custodial interrogation of such Director had not been sought by the prosecution. He has been released on bail on 08.10.2012 subsequent to
the dismissal of the earlier anticipatory bail petition of these petitioners in Crl. O.P. (MD) Nos. 11705 and 11697 of 2012 on 27.09.2012 and
25.09.2012 respectively. Submitting that the dismissal of the earlier application was not one on merits and therefore there really could be no bar to
the filing of a second application, learned Senior Counsel would state that even otherwise the release on bail of a person similarly placed would be
a change of circumstance which would justify the moving of subsequent application. Where the custodial interrogation of a Director of the company
similarly placed as these petitioners was not considered necessary, it followed that custodial interrogation of these petitioners also was not
necessary and consequently so was their arrest. The objections to grant of relief at the earlier instance was that the quantity of granite quarried was
to be quantified, Section 164 Cr.P.C. statements of the witnesses was to be recorded and details regards export of granite had to be ascertained
from officials. The status report filed by the prosecution in Crl. O.P. (MD) No. 11697 of 2012 informed:
It is submitted that in pursuant to the order of the District Collector special teams have been constituted to find out the extent of violations by the
quarry companies at Melur. The special team formulated by the District Collector, Madurai have inspected the petitioner/accused quarry site on
16.05.2012 and submitted a report. The inspection report of the special team reveals that the petitioner/accused had quarried only 468.243 CBM
in his permitted area, but transported to an extent of 2292.814 CBM. The inspection itself expose that petitioner/accused had illegally quarried in
the adjoining Government poramboke lands. The exact quantum of illegal quarry is assessed using advanced scientific technologies, namely ""Total
Station Survey"" and a device by name ""Dhaksha"" developed by Anna University.
It is the submission of the learned Senior Counsel that the position of the prosecution having knowledge of the exact nature and extent of
quarrying operations stood admitted. Paragraph 10 of such status report informs of requisition made to the learned Chief Judicial Magistrate,
Madurai for recording of statement of witnesses u/s 164 Cr.P.C. The applications had been filed on 20.09.2012. Even after the passage of two
months no steps had been taken by the prosecution in this regard. Such report also informed of employees of the petitioners being afraid of
tendering statements against them. Such allegation was totally vague and in fact some employees had been arrested and none of them had
complained of being afraid of the petitioners. Two employees of the company had been examined as witnesses and their Section 161 Cr.P.C.
statement stood recorded. Such persons had not alleged any threat. Again the status report informed of officials of other Departments/Agencies
having been summoned by the Investigating Agency. Two months had since passed. As officials, who would be persons speaking from the
records, it cannot be stated that they would be influenced by the petitioners. Three officials of TAMIN had been arrested. They were the persons
who could best have spoken to the role of TAMIN officials. Their custodial interrogation had not been sought. Therefore, the prosecution could
not oppose the present applications informing that the role of officials is to be ascertained. The persons who have been accountants, office
assistants in the company had been arrested and stand released on bail. Their custodial interrogation had not been sought while they were in
custody. In dismissing Crl. O.P. (MD) No. 11697 of 2012 this Court has observed as follows:
This court has carefully struck a balance between the submission made by Mr. R. Shanmugasundaram, the learned Senior counsel appearing
for the petitioner and the submissions made by Mr. Ranjithkumar, the learned Senior counsel for the State.
This court has also made a meticulous analysis on the materials available on record. This court understand the object and intention of section
438 of Cr.P.C., which is meant to prevent the mischief, which is sometimes played by false implication of innocent persons.
This court also understand that the law presumes an accused person to be innocent, till his guilty is proved and as such, as a presumably
innocent person, he is entitled to every freedom and facility to defend himself effectively and the object of section 138 Cr.P.C. is to protect
innocent persons from being disgraced or detained in jails at the instance of influential persons, who try to implicate their rivals in false cases.
However, in so far the present case is concerned, since the investigation is in the crucial stage and that the prosecution is to proceed further to
examine other witnesses, this court finds that it may not be proper to grant anticipatory bail to the petitioner for the present. Keeping in view of the
facts, this court is not inclined to allow this petition.
Referring to the above, learned Senior Counsel submitted that the same made amply clear that this Court was of the view that some time ought
to be afforded to the prosecution to do that which it espoused necessary. The prosecution had failed to act in furtherance of its espoused cause.
Several witnesses had been examined and the office premises had been searched but nothing incriminating had been found against the petitioner.
Even the fellow Director A3, Balasubramaian who had been arrested had not implicated the petitioner. Under the guise of interrogation the family
members of the petitioner repeatedly had been harassed. The prosecution had further no purpose to seek arrest of the petitioner other than to
humiliate them. Learned Senior Counsel placed reliance in decision of this Court passed in State by the Inspector of Police, J1, Saidapet Police
Station, Chennai v. M.K. Mohan, Crl. O.P. No. 30236 of 2011, to inform that there was no bar in moving the second anticipatory bail
application.
Adopting the submissions of the learned Senior Counsel, Shri. Veera Kathiravan, learned Counsel for petitioner in Crl. O.P. (MD) No. 16025
of 2012 would add that the petitioner therein had been the Managing Director upto July 2011 and now was a Director. The fellow Director had
been released on bail. The lease in favour of the company stood cancelled.
Shri. L. Nageshwara Rao, learned Senior Counsel appearing for the respondent/State submitted that the judgment of this Court reported in
State by the Inspector of Police, J1, Saidapet Police Station, Chennai v. M.K. Mohan, Crl. O.P. No. 30236 of 2011, was per incuriam in the light
of earlier judgments. The earlier anticipatory bail application had been rejected on 25.09.2012. Immediately thereafter the present petitions have
been filed on 08.10.2012. The dismissal of the earlier petitions was not at the request of the prosecution but after consideration of the merits of the
case. The same could be gathered from the reading of the order in its entirety. There had been no change of circumstances between 28.09.2012
and 08.10.2012. Though a decision of a Full Bench of Calcutta High Court informs that no second petition of anticipatory bail could be moved in
any circumstances, a reading of decisions of the Supreme Court would show that the same could be done only given a change of circumstances.
Informing that what has been argued earlier could not be agitated later, learned Senior Counsel informs that the only submission was that an
another Director stood released on bail. Such is not a change in circumstances and the present petitions are not maintainable. Learned Senior
Counsel refer to decisions reported in Kalyan Chandra Sarkar etc. Vs. Rajesh Ranjan @ Pappu Yadav and Another, and in State of Tamil Nadu
Vs. S.A. Raja, whereof which reads as under:
When a learned Single Judge of the same court had denied bail to the respondent for certain reasons and that order was unsuccessfully
challenged before the appellate forum, without there being any major change of circumstances, another fresh application should not have been dealt
with within a short span of time unless there were valid grounds giving rise to a tenable case for bail. Of course, the principles of res judicata are
not applicable to bail applications, but the repeated filing of the bail applications without there being any change of circumstances would lead to
bad precedents.
He submitted that in offences of similar nature relating to coal mines and in response to Public Interest Litigation, the Forest Bench of the
Supreme Court had called a halt to the entire mining operations and informed that the investigating agency may arrest and carry out search, seizure,
etc., It was only about 11/2 months back that such an interim order had been lifted.
Learned Senior Counsel submitted that the State was opposing the grant of relief towards avoiding tampering of the witnesses in the light of
evidence of their being frightened. Crucial incriminating material had been secreted by the accused. In one case a computer hard disk was
recovered. The same could not be accessed owing to non availability of the password. Towards finding out details of issues being investigated,
arrest and custody of the persons was necessary.
Learned Senior Counsel would submit that the business of M/s. Olympus Granite Pvt. Ltd., had earlier been conducted as a partnership.
Thereafter a company had been registered on 22.02.2007. Lease had been obtained on 13.08.2008 for quarry on an extent of 1.21 hectares. The
same was valid for a period of 20 years and adjacent extent of 10.24 hectares had been leased out to TAMIN. The FIR registered on
06.08.2012 complained of encroachment into TAMIN leased land to an extent of 10 metres. It was informed that the pit in the property leased
out to the petitioners was 482 Sq. Mts. TAMIN had granted raising contracts to one Kanagavel and Sundarapandian between 2006/2007 to
2010/2011. There was material to show that such persons were benamis of the petitioners. As much as 72400 cubic metres had been excavated
and it was seen that the transport by TAMIN was negligible. Three officials of TAMIN who had been taken into custody had tendered statements
that they were on the pay role of the petitioners. The investigation was in progress. 14 persons stood accused. 8 had been arrested and
subsequently released on bail and 41 witnesses had been examined. Much more was to be unearthed. Responding to the submission of the learned
Counsel for the petitioners that the offences alleged would not stand made out, learned Senior Counsel stated that a specific allegation stood made
of a conspiracy regards illegal mining and transport. Consequently offence of theft stands made out. Entrustment had been made by TAMIN to the
persons engaged as raising contractors. Wrong doing had been committed taking advantage thereof. Therefore, the offences u/s 406 and 420 IPC
would stand attracted. Offence u/s 409 IPC would stand attracted since officials of TAMIN were also involved in the wrong doing. There could
be no doubt about the attraction of offences under Sections 4, 21 and 4(1) of the Mines and Minerals (Regulation and Development) Act, 1957.
Section 4 of the Explosives Substances Act encompassed injury to property. The prosecution contention is that quarry operations were conducted
also on property other than that belonging to the company. Explosives had been used to cause injury thereto and hence such Act was stood
attracted. Again Section 3 of the TNPPDL Act encompassed mischief to any property and the same also stood attracted.
Answering the submissions that the petitioners had been sought to be made vicariously liable, learned Senior Counsel submitted that there was
material to show the direct involvement of the petitioners. Co-accused, Director Balasubramanian, who had been arrested had in his Section 161
Cr.P.C. statement informed that the petitioners are the persons directly in charge and control of the company. Police had sought to effect seizure in
the premises of the company on 13.08.2012 but no material was available as the same has been surreptitiously removed. He would submit that the
requisition for recording of statement u/s 164 Cr.P.C. had been made on 17.09.2012. The same had not been recorded as the post of Judicial
Magistrate, Thirumangalam had fallen vacant. The present incumbent had joined on 03.11.2012 and was away on training after handing over
additional charge to the Additional Judicial Magistrate, Usilampatti. Summons for such purpose now stood issued on 26.11.2012 towards
recording of the statement on 30.11.2012.
Summing up, learned Senior Counsel for the respondent submitted that the custodial interrogation of the petitioners was necessary as records
of the company has been secreted. Only recovery and perusal thereof would disclose the extent of wrong doing and where the material now was.
Involvement of other officials of the State Government without whose connivance, the offences could not have been committed also was to be
probed. Considering the status of the petitioners and that there was a threat perception, the possibility of their tampering with witnesses was large.
There had been no substantial change in circumstance from 25.09.2012 to 08.10.2012 when the present anticipatory bail petitions were moved.
Even on merits, considering the gravity of offence, the present petitions deserve to be dismissed.
In reply, Shri V. Gopinath, learned senior counsel relied on a judgment of this Court in M. Gokulakrishnan @ Adithya vs. State by Inspector
of Police, Chennai, (in Crl. O.P. No. 30236 of 2011) to inform that a second anticipatory bail petition was maintainable. Learned senior counsel
also drew support from judgment of the Apex Court in Ravindra Saxena Vs. State of Rajasthan, wherein it has been held as follows:
Being unsuccessful before the Sessions Judge, the appellant moved an application for anticipatory bail before the High Court in the earlier case,
which was dismissed by the High Court as well on 13.08.2007. The appellant also sought quashing of the FIR in a petition filed u/s 482 CrPC
before the High Court of Rajasthan. This was also rejected by the High Court. The appellant again moved an application for anticipatory bail which
was rejected by the High Court on 24.03.2008.
Therefore, the appellant approached this Court by way of petition for special leave to appeal, which was disposed of on 12.02.2009 with the
following order:
This SLP is filed against an order of the High court dismissing the second bail application of the petitioner u/s 438 Cr.P.C.
On the prayer of Mr. S.K. Jain, learned counsel appearing for the petitioner, the SLP is dismissed as withdrawn with liberty to the petitioner to
apply for a third bail application before the High Court. If such an application for bail is moved the court concerned shall decide it on the same day.
Learned senior counsel submitted that after the dismissal of the first anticipatory bail petition on 25.09.2012, the second had been filed on
08.10.2012. On such day, i.e., 08.10.2012, another Director had been granted bail. Whilst, he was in custody, his custodial interrogation had not
been sought. Referring to the submissions of learned Advocate General in the earlier petitions, learned senior counsel points out that according
thereto, the offence had been committed by the company and A3 vicariously was liable. The change of circumstance is the grant of bail to A3, who
stood similarly placed as the petitioners. That there was no need for custodial interrogation was borne out by the fact that the same had not been
sought in respect of such person. He submitted that the cases are relied upon by learned senior counsel for the respondent which call for a change
of circumstance towards entertaining a subsequent anticipatory bail petition would not be applicable in the present case since those were cases
wherein the earlier orders had been passed on merits. Though submissions of either side had been recorded in the earlier order paragraphs 71 to
73 thereof reflected the clear position that the order was not one on merits. Presently, two months had passed and subsequent to the earlier order,
several employees, most importantly, persons in charge of day-to-day affairs such as the cashier, clerk etc. had been released on bail. The
custodial interrogation of none of these persons had been sought. Learned senior counsel pointed out that except for offences u/s 397 IPC,
Explosive Substances Act and Tamil Nadu Property (Prevention of Damage and Loss) Act, all else were bailable.
Use of explosives towards removal of the top layer (crust) in quarries was necessary and the same cannot be termed unlawful. As regards the
Tamil Nadu Property (Prevention of Damage and Loss) Act, it is submitted that a perusal of the object and reasons, would show that the primary
purpose of such enactment was to prevent damage caused as an outcome of political meetings/processions etc. and provision was made therein for
payment of compensation by the party concerned.
Learned senior counsel submits that even on 16.10.2012, the houses and other premises of the petitioners have been searched and the same
had yielded nothing. Three officials of TAMIN and other staff had been arrested. The statements recorded from them would show who was
involved. The present was not a case calling for recovery of material/discovery of facts in the exclusive knowledge of the petitioners. Even at the
stage of earlier anticipatory bail petitions, one of the objects informed was the necessity to record Section 164 Cr.P.C. statements. Having failed to
record such statements, presently an untenable explanation was being provided. Pointing out that recovery made on the basis of statements made
by persons who were not in custody would also be admissible u/s 27 of the Evidence Act, learned senior counsel would inform that this whilst
granting anticipatory bail, Court may impose conditions. The vindictive attitude of the State was laid bare. Not having sought custodial interrogation
of persons who were arrested it was now being insisted that the arrest and custody of the petitioners was necessary. Strong reliance was placed by
learned senior counsel in the judgment of Apex Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, Stating that two of
the staff of the company had given statements regards the petitioners regularly visiting the place of mining operations, learned senior counsel
submitted that they have not spoken to any threat or interference by the petitioners. All necessary information was available and for the larger part,
the prosecution case would be borne out by records. Having earlier contended that a most scientific method has been used for determining the
volume of wrongfully excavated material, it was now being submitted that only a preliminary assessment has been made.
Learned counsel, Mr. Veera Kathiravan, stated that it was wrong to inform of wrongful use of explosives for recovery of granite. Use of
explosives would result in granite being broken into pieces and being rendered useless. Explosives were used only towards removing the crust.
Referring to the show cause notice issued to the company on 12.07.2012, learned counsel would inform that even according thereto, the wrong
doing was said to be in respect of 169.534 cubic metres of granite blocks. Presently, imaginary figures of huge volumes were being touted.
Learned Advocate General would submit that the earlier order informing of the vicarious liability of A3 (Director) had been wrongfully
recorded. He would inform that the raising contractors are absconding. Learned Senior Counsel for petitioners would state that a sequential
reading of the order would show that learned Advocate General was wrong in his submission.
The further challenge to the maintainability of the present petitions raised by the learned Senior Counsel for the respondent on the ground that
Non-Bailable Warrants stand issued against the petitioners brings us to a discussion on the merits of Crl. O.P. (MD) Nos. 15810 and 16025 of
2012.
Upon petitions by the Investigating Officer moved in Crl. M.P. No. 5564 of 2012 before the Judicial Magistrate, Melur, contending that the
petitioners were evading arrest, Non Bailable Warrant stands issued by the Judicial Magistrate, Melur under orders in Crl. M.P. No. 5564 of
2012, dated 15.10.2012. The same stands challenged in Crl. O.P. No. 15810 and 16025 of 2012 and under orders dated 17.10.2012, the order
of the lower Court were stayed and by subsequent orders, such stay stands extended.
Shri. P. Kumaresan, learned Counsel for the petitioner in Crl. O.P. (MD) No. 15810 of 2012 submitted that the pendency of petitions seeking
anticipatory bail as also the pendency of quash petitions before this Court had been brought to the notice of the Judicial Magistrate. Judicial
discipline required the Magistrate to await the disposal of the anticipatory bail petitions. In this regard, learned Counsel relied upon a decision of
this Court in Saminathan and 4 others Vs. The Inspector of Police, Puddukkottai Town Police Station, Puddukkottai and 10 others, In such case,
one of the parties to proceedings u/s 145 Cr.P.C. had sought quash thereof. Though this Court admitted the quash petition, only notice stood
issued in the accompanying stay petition. The opposite party moved this Court for a direction for expedition of Section 145 Cr.P.C. proceedings.
The learned Executive Magistrate having adjourned the proceedings before him from time to time and despite having been informed that this Court
was seized of the matter which was to be taken up on a particular day, passed an order holding the opposite party to be in possession of the
property. Thereby, the petition challenging the Section 145 Cr.P.C. proceedings were rendered infructuous. This Court had deprecated such
conduct and set aside the order and remitted the matter for fresh consideration, ordering maintenance of status quo. It is the contention of learned
Counsel that such decision would apply in the instant case on all fours.
The next submission of learned Counsel is that when power of arrest stood vested in the Investigating Officer, he cannot seek the help of the
Court for such purpose. The seeking of warrant u/s 70(2) Cr.P.C. was mala fide. More than 50 similar cases were pending, these petitioners had
been singled out. The case against the petitioners had been registered on 06.08.2012. The affidavit in support of the petition seeking issue of Non
Bailable Warrant was dated 06.10.2012. That the earlier anticipatory bail petition was dismissed on 25.09.2012 is admitted. Till 25.09.2012, this
Court directed the respondent not to effect arrest. Therefore, it cannot be stated that the petitioner had been absconding between the period
28.09.2012 to 06.10.2012. It could not be assumed that the respondent cannot effect arrest or that the petitioner would evade the same. Learned
Counsel has also made submissions touching upon Section 41 and Chapter VI of the Cr.P.C. dealing with the power of arrest and process to
compel appearance. It is submitted that as the offences complained of are cognizable, the Investigating Officer had powers of arrest and since
charge sheet had not been filed the purpose of seeking Non Bailable Warrant was only to aid the investigation. As per the decision of the Apex
Court in State through C.B.I. Vs. Dawood Ibrahim Kaskar and others, Non Bailable Warrant could not be issued for the purpose of aiding the
Investigating Agency. The effect of executing a warrant issued by the learned Magistrate would be that of rendering the petitions for anticipatory
bail, infructuous. Consequently, Article 21 of the Constitution of India would stand breached.
Shri. Veera Kathiravan, learned Counsel appearing for the petitioner in Crl. O.P. (MD) No. 16025 of 2012 submitted that the Investigating
Officer had power to arrest without warrant. He also would touch upon decision of the Apex Court in the case of State through C.B.I. Vs.
Dawood Ibrahim Kaskar and others, to submit that a Non Bailable Warrant could be issued only where an accused is evading arrest and in this
case there was absolutely no material to show that such was the case. He would add that at the stage when the affidavit seeking the issue of Non
Bailable Warrant was filed, even the order copy in the earlier anticipatory bail petition which was dismissed had not been made ready. He would
refer to judgment of the Apex Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, wherein referring to decision of the
Constitution Bench in Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, t has been stated as follows:
Section 438 CrPC does not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted.
The order granting anticipatory bail is a direction specifically to release the accused on bail in the event of his arrest. Once such a direction of
anticipatory bail is executed by the accused and he is released on bail, the court concerned would be fully justified in imposing conditions including
the direction of joining the investigation.
Learned Counsel submitted that in moving petition for anticipatory bail the petitioners have undertaken to furnish sureties and have subjugated
themselves to the process of law and therefore it could not be stated they are evading arrest.
Learned Senior Counsel Shri. L. Nageshwara Rao submitted that this Court on a detailed discussion on the law applicable, under judgment
reported in P.A. Saleem and others Vs. State and Others, had held that where a specific provision stood made u/s 70(2) Cr.P.C. for cancellation
of warrant by the Court which issued it, it was not open to invoke inherent jurisdiction of this Court u/s 482 Cr.P.C. Though thereafter under
decision of this Court in Francis Xavier v. State, 1995 1 L.W. (Crl.) 237 it has been held that power u/s 482 Cr.P.C. could be exercised towards
directing recall of Non Bailable Warrant, a further judgment of this Court in S. Shreenivasa Rao alias S.S. Rao Vs. Inspector of Police, had
followed the view expressed in PA. Saleem and others v. State rep. by the Inspector of Police, R-4, Pondy Bazaar and others, 1994 2 L.W.
(Crl.) 402. Therefore, it would be necessary for this Court, if not inclined to accept the view expressed in PA. Saleem and others v. State rep. by
the Inspector of Police, R-4, Pondy Bazaar and others, 1994 2 L.W. (Crl.) 402, to refer the matter for decision by a Larger Bench. When asked
if the decision referred to PA. Saleem and others v. State rep. by the Inspector of Police, R-4, Pondy Bazaar and others, 1994 2 L.W. (Crl.) 402
would apply in a case such as the present where after hearing the accused, an order on consideration of merits came to be passed by the learned
Magistrate and it would be illusory for the accused to expect relief u/s 70(2) of Cr.P.C., learned Senior Counsel would respond that the provision
u/s 70(2) Cr.P.C. does not draw distinction between cases where the parties have been heard and where they have not. He also submit that it
might be illusory to expect relief u/s 70(2) Cr.P.C. in a case where the matter had been fully considered but in the instance case all that had been
contended by the petitioners was that it was not open to the Magistrate to issue a Non Bailable Warrant given the fact that the anticipatory bail
petition was pending and the case was politically motivated. Referring to the decision in State through C.B.I. Vs. Dawood Ibrahim Kaskar and
others, learned Senior Counsel would inform that according thereto, a Non Bailable Warrant could be issued at any stage, the only restraint being
that the same could not be issued towards aiding the investigation. He would justify the order of the lower Court by submitting that the earlier
anticipatory bail petition stood dismissed and in the one presently pending no interim order had been made. It cannot be stated that merely because
an anticipatory bail petition was pending, the Magistrate could not proceed to issue Non Bailable Warrants as otherwise the power u/s 70 Cr.P.C.
could be denied to the Magistrate by repeatedly resorting to applications before this Court. Answering the charge of discrimination, learned Senior
Counsel would state that as many as 16 applications to issue Non Bailable Warrant had been made. Six of them, relating to the case against the
petitioners, were filed on 06.10.2012. Two against M/s. P.R.P. Granites were filed on 16.10.2012 and all these petitions were allowed. Two
relating to M/s. Sindhu Granite and six cases relating to M/s. Madurai Granites were filed on 16.10.2012 and the same are pending. A notice
stood issued by the Investigating Agency to the petitioners to join investigation on 28.09.2012. They have been failed to do so. The issue of Non
Bailable Warrant against them was justified. Considering the huge magnitude of the crime, prompt action of the investigating agency immediately
after dismissal of the earlier anticipatory bail petitions could not be termed mala fide by invocation of the administrative law principles of
discrimination. Learned Senior Counsel would also factually dispute the submissions of the learned Counsel for the petitioners that during pendency
of the earlier anticipatory bail petitions there was a direction to the respondents not to arrest the petitioners. Shri. P. Kumaresan, learned Counsel
would join issue stating that the earlier petitions had been repeatedly adjourned at the instance of the prosecution as the State had not been ready
to get along with the matter and a direction as informed by him stood issued across the Bar. This Court had required the respondent even while
allowing the adjournments not to precipitate matters. While Special Public Prosecutor contended that there had been no oral understanding,
learned Advocate General vehemently would state that the respondent/State had not given any undertaking to this Court not to effect arrest.
Shri. Veera Kathiravan, learned Counsel for the petitioner in Crl. O.P. (MD) No. 16025 of 2012 submitted that the present was not a case
where petitioners were seeking recall of Non Bailable Warrant. The petitioners contention was one of abuse of process of law and hence the
petitions u/s 482 Cr.P.C. would be maintainable.
Before entering upon consideration of merits of the case we are to make the following general observations:
i) The substantial wrong doing complained of in the present cases is of unlawful quarrying of granite. Consequential wrong doing of illegal transport
and sale are also complained of. The accusations are of offending actions over several years. The Mines and Minerals (Development and
Regulation) Act, 1957, contain provisions regulating activities at every stage viz., reconnaissance, prospecting, mining and transport. The Act
provides for prosecution/levy of penalties in respect of wrong doings. All the offences thereunder are cognizable and bailable. The Act further
provides for recoveries from offenders in Section 21(5) thereof. All the offences also are compoundable. Section 21 of the Act reads as under:
Penalties.--(1) Whoever contravenes the provisions of sub-section (1) or sub-section (1-A) of Section 4 shall be punished with imprisonment
for a term which may extend to two years, or with fine which may extend to twenty-five thousand rupees, or with both.
(2) Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable with imprisonment for a term
which may extend to one year, or with fine which may extend to five thousand rupees, or with both, and in the case of a continuing contravention,
with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the
first such contravention.
(3) Where any person trespasses into any land in contravention of the provisions of sub-section (1) of Section 4, such trespasser may be served
with an order of eviction by the State Government or any authority authorised in this behalf by that Government and the State Government or such
authorised authority may, if necessary, obtain the help of the police to evict the trespasser from the land.
(4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for
that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be
seized by an officer or authority specially empowered in this behalf.
(4-A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the
court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court.
(5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the
mineral so raised, or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or
tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.
(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under sub-section (1) shall be
cognizable.
In Karnataka Rare Earth and Another Vs. The Senior Geologist, Department of Mines and Geology and Another, the Supreme Court has
observed as follows:
In our opinion, the demand by the State of Karnataka of the price of the mineral cannot be said to be levy of penalty or a penal action. The
marginal note of the section--""penalties"", creates a wrong impression. A reading of Section 21 shows that it deals with a variety of situations. Sub-
sections (1), (2), (4), (4-A) and (6) are in the realm of criminal law. Sub-section (3) empowers the State Government or any authority authorized
in this behalf to summarily evict a trespasser. Sub-section (5) empowers the State Government to recover rent, royalty or tax from the person who
has raised the mineral from any land without any lawful authority and also empowers the State Government to recover the price thereof where such
mineral has already been disposed of inasmuch as the same would not be available for seizure and confiscation. The provision as to recovery of
price is in the nature of recovering the compensation and not penalty so also the power of the State Government to recover rent, royalty or tax in
respect of any mineral raised without any lawful authority car. also not be called a penal action. The underlying principle of sub-section (5) is that a
person acting without any lawful authority must not find himself placed in a position more advantageous than a person raising minerals with lawful
authority.
Quarrying operations necessarily involve use of explosives towards removal of crust layer consequently resulting in breaking of rock which forms
the same. The purpose which the Explosive Substances Act seeks to serve viz., prevention of anarchist crimes and that which the Tamil Nadu
Property (Prevention of Damage and Loss) Act does viz., prevention of damage to properties in the course of political meetings/processions, etc
and recovery of compensation from the offenders, cannot be lost sight of. The maximum punishment provided for offences u/s 379 IPC is three
years.
(ii) It is not disputed that excavated granite is predominantly meant for export. Though it presently has been submitted on behalf of the respondent
that only an initial estimation of the extent of quarrying operations had been done we note that the status report filed in earlier proceedings before
this Court informs the specific contention of the State that exact quantum of the illegal quarry is assessed using advance scientific technologies viz.,
Total Station Survey"" and a device by name Dhaksha developed by Anna University. It is by taking into account the transport particulars going by
the transport slips '' given to the concerns as also the seigniorage fee paid by them that the prosecution affirms that the concerns have excavated
more that that was possible in the quarrying effected by them within their leasehold areas. Therefore, while the extent of quarry operations is
ascertainable by use of scientific methods, the quantity transported is ascertainable through perusal of records relating to transport and payment of
seigniorage fee. That the petitioners/accused contention is of recovery is in the range of 15% to 20% while the State contention is of the same
being 80% to 90% is a different matter.
(iii) In as many as 60 cases investigation has now been in progress for months. Granite blocks are not material that easily can be secreted.
(iv) The particulars of export would be matters of record. Consequential flow of moneys therefrom would also be matters of record.
It is keeping the above in mind that a decision would have to be arrived at.
In decision of the Apex Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, it is informed as follows:
A good deal of misunderstanding with regard to the ambit and scope of Section 438 CrPC could have been avoided in case the Constitution
Bench decision of this Court in Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, was correctly understood, appreciated and applied.
This Court in Sibbia case laid down the following principles with regard to anticipatory bail:
(a) Section 438(1) is to be interpreted in the light of Article 21 of the Constitution of India.
(b) Filing of FIR is not a condition precedent to exercise of power u/s 438.
(c) Order u/s 438 would not affect the right of police to conduct investigation.
(d) Conditions mentioned in Section 437 cannot be read into Section 438.
(e) Although the power to release on anticipatory bail can be described as of an ""extraordinary"" character this would ""not justify the conclusion that
the power must be exercised in exceptional cases only"". Powers are discretionary to be exercised in the light of the circumstances of each case.
(f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re-
examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the
applicant.
The Law Commission in July 2002 has severely criticised the police of our country for the arbitrary use of power of arrest which, the
Commission said, is the result of the vast discretionary powers conferred upon them by this Code. The Commission expressed concern that there
is no internal mechanism within the Police Department to prevent misuse of law in this manner and the stark reality that complaint lodged in this
regard does not bring any result. The Commission intends to suggest amendments in the Criminal Procedure Code and has invited suggestions from
various quarters. Reference is made in this article to the 41st Report of the Law Commission wherein the Commission saw ""no justification"" to
require a person to submit to custody, remain in prison for some days and then apply for bail even when there are reasonable grounds for holding
that the person accused of an offence is not likely to abscond or otherwise misuse his liberty. Discretionary power to order anticipatory bail is
required to be exercised keeping in mind these sentiments and spirit of the judgments of this Court in Joginder Kumar Vs. State of U.P. and others,
Relevant consideration for exercise of the power.
No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no
attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly
visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should
necessarily depend on the facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia case that the High
Court or the Court of Session has to exercise their jurisdiction u/s 438 CrPC by a wise and careful use of their discretion which by their long
training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.
The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court
in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused''s likelihood to repeat similar or other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role
of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court
should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be
caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of
grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is
entitled to an order of bail.
Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts
and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been
directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.
These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by
no means exhaustive but they are only ""illustrative in nature because it is difficult to clearly visualise all situations and circumstances in which a
person may pray for anticipatory bail. If a wise discretion is exercised by the Judge concerned, after consideration of the entire material on record
then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to
exercise this jurisdiction only to the Judges of the superior courts. In consonance with the legislative intention we should accept the fact that the
discretion would be properly exercised. In any event, the option of approaching the superior court against the Court of Session or the High Court
is always available.
Irrational and indiscriminate arrests are gross violation of human rights.
In Joginder Kumar case a three-Judge Bench of this Court has referred to the 3rd Report of the National Police Commission, in which it is
mentioned that the quality of arrests by the police in India mentioned the power of arrest as one of the chief sources of corruption in the police. The
Report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action
accounted for 43.2% of the expenditure of the jails.
Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts
and circumstances of the case.
In case, the State considers the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal
liberty of the accused in a routine manner. These suggestions are only illustrative and not exhaustive:
(1) Direct the accused to join the investigation and only when the accused does not cooperate with the investigating agency, then only the accused
be arrested.
(2) Seize either the passport or such other related documents, such as, the title deeds of properties or the fixed deposit receipts/share certificates
of the accused.
(3) Direct the accused to execute bonds.
(4) The accused may be directed to furnish sureties of a number of persons which according to the prosecution are necessary in view of the facts
of the particular case.
(5) The accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the possibility of tampering
of evidence or otherwise influencing the course of justice can be avoided.
(6) Bank accounts be frozen for small duration during the investigation.
Though made in the context of applications for bail, the observations in Sanjay Chandra Vs. CBI, , are relevant:
In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused
person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a
punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to
the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time
to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such
cases, ""necessity"" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution
that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be
deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before
conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct
whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of
imprisonment as a lesson.
In the instant case, we have already noticed that the ""pointing finger of accusation"" against the appellants is ""the seriousness of the charge"". The
offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the
appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no
doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also
requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of
Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather ""recalibrating the scales of
justice"".
The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against
convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an
individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High
Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement
that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situation and would
jeopardise the personal liberty of an individual.
Coming back to the facts of the present case, both the courts have refused the request for grant of bail on two grounds: the primary ground is
that the offence alleged against the accused persons is very serious involving deep-rooted planning in which, huge financial loss is caused to the
State exchequer; the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the present case, the
charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document.
The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may
be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining
whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration.
The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and
circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community
against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of
keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after
conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required.
This Court in Gurcharan Singh v. State (Delhi Admn.) observed that two paramount considerations, while considering a petition for grant of
bail in a non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with
the prosecution witnesses. Both of them relate to ensure the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned
order, in our view, the same is not convincing.
Though the nature of crime and gravity of the offence alleged are considerations to be taken into account at the stage of petitions u/s 438
Cr.P.C. it needs, no emphasis that the decision would not rest on the merits of the case. Merits of the case is a matter for trial. In such view of the
matter, we are not inclined to enter upon a discussion thereon and particularly the hotly contested contentions on the percentage of recovery. We
merely will stop with saying that a report of an expert body which commences with observations that the contention of the person/accused regards
percentage of recovery is not correct is not one to be expected and that undoubtedly the percentage of recovery would have a bearing on the
magnitude of the prosecution case. The prime consideration would be whether custodial interrogation of a petitioner is essential.
The maintainability of a second anticipatory bail petition vehemently has been argued. While learned Counsel for the petitioners have relied
upon decisions which would inform that the same are maintainable, learned Senior Counsel for respondent has relied upon various decisions, some
of High Courts which go to the extent of saying that a second anticipatory bail petition never would be maintainable and some of the Apex Court
which would inform that a second anticipatory bail petition would be maintainable only given a change of circumstances. It has also been held that
change of circumstance merely should not be merely cosmetic but substantial. We would add that non-consideration of matters relevant or
consideration of matters extraneous to the case on hand would also be circumstances which would justify the moving of a further petition for
anticipatory bail. Non-consideration of the merits of the case in disposal of the earlier petition again would be a circumstance which would justify
the filing of a further application. We would state that investigation into offences is required to be a continuous process till the same is completed. If
in a given case it is seen that the situation of ''no change in circumstance'' is that of the investigating agency''s making, then it would be unfair to deny
an accused the right of moving a fresh petition for anticipatory bail owing thereto.
We may straightaway inform that we are in agreement with the learned Senior Counsel for the petitioners that the order of dismissal passed in
the earlier petition was not the one on consideration of the merits of the case. We do not find it necessary to dwell at length with the decisions
relied upon by either side as we are of the view that a change of circumstance presents itself indeed in the instant case. One similarly placed as the
petitioners i.e., one who was also a Director of the company had been arrested and subsequently released on bail. Grant of bail to a co-accused
similarly placed generally is accepted to be a change of circumstance. That the custodial interrogation of such similarly placed person was not
considered necessary by the prosecution leads to the inference that custodial interrogation of the petitioners is not necessary. We also find that very
many accused persons have been arrested and the custodial interrogation of none of them has been sought. At the stage of the earlier anticipatory
bail petitions it had been submitted that Section 164 statement of witnesses were to be recorded. Though learned Counsel for the respondent
would submit that second petition for anticipatory bail had been moved within a few days of the dismissal of the first, we find that no attempt of
recording statement u/s 164 Cr.P.C. had been made even till 21.11.2012, the date on which all these petitions first were heard. It is only after
contention in this regard has been made before this Court that prosecution has thought it proper to take steps there towards. Though learned
Senior Counsel for respondent had informed of the concerned Judicial Magistrate having gone on leave, his having handed over charge to another
Magistrate who had gone on training as the reasons for not taking such steps earlier, we are not impressed. If presently steps have been taken
towards recording of Section 164 Cr.P.C. statement before a different Magistrate, we fail to see why the same could not have been done earlier.
Turning to the question raised on petitions u/s 482 Cr.P.C. challenging the issue of Non-Bailable Warrants under orders of learned Judicial
Magistrate, Melur, in Cr. M.P. No. 5564 of 2012, dated 15.10.2012 being not maintainable, we would follow the rationale of the judgment
reported in Saminathan and four others v. The Inspector of Police, Pudukkottai, etc and others, 2000 1 L.W. (Crl.) 33. Where the Court below
has been appraised of the pendency of anticipatory bail petitions before this Court, judicial discipline would require it to await the outcome thereof.
It would always be open to the prosecution to urge the early disposal of the anticipatory bail petitions before this Court informing the pendency of
petitions u/s 73 Cr.P.C. before the Magistrate. The answer to the hypothetical situation placed before us by the learned Senior Counsel for
respondent viz., that power u/s 73 Cr.P.C. could be denied to a Magistrate by a party successfully moving applications before this Court, would
be that if and when such a situation arose, a constitutional Court would know how to respond. We find no need to make any reference as
suggested by the learned Senior Counsel for respondent since we are of the view that in the instant case judicial discipline stands observed not and
therefore exercise of jurisdiction u/s 482 Cr.P.C. is called for. Though we are of prima facie opinion that it would be unrealistic to expect an
accused to seek recall of Non-Bailable Warrant issued u/s 70(2) Cr.P.C. in a case where submissions on his behalf have been heard, we do not
consider it necessary to go into such question. As the Counsel on either side have relied upon decisions of the Apex Court in State through C.B.I.
Vs. Dawood Ibrahim Kaskar and others, , we find it necessary to touch upon the same. Such decision informs that a Non-Bailable Warrant may
be obtained at any stage that is also at the stage of investigation. However, on execution thereof the concerned person is to be produced before
the Magistrate. At such instance, he may seek bail. The Magistrate may grant or refuse the same. In the event of refusal of such right, it would be
open to the prosecution to seek custodial interrogation, applications where for again is to be considered on merits.
Given the general observations above informed, the rationale of the decision of the Supreme Court in Siddharam Satlingappa Mhetre Vs. State
of Maharashtra and Others, and Sanjay Chandra Vs. CBI, the attendant factual circumstances and that these petitioners have no previous cases
against their names and are persons of good standing in society, this Court is of the view that interests of justice would be served if the petitioners
are required to cooperate with the investigation. In the light of the above discussions, Crl. O.P. (MD) Nos. 15810 and 16025 of 2012 are allowed
and the orders of the learned Judicial Magistrate, Melur in Crl. M.P. No. 5564 of 2012, dated 15.10.2012 shall stand quashed. Consequently,
connected miscellaneous petitions are closed. Crl. O.P. (MD) Nos. 15602 and 15252 of 2012 shall stand allowed. It is directed that
(a) In the event of arrest by or on appearance before the respondent police;
(b) In the event of appearance before the learned Judicial Magistrate, Melur within 15 days from the date of receipt of copy of the order;
(i) the petitioners shall be enlarged on bail on each of them executing a bond for Rs. 10,000/- (Rupees ten thousand only) with two sureties each
for the like sum to their satisfaction;
(ii) the petitioners shall surrender their passport before the learned Judicial Magistrate, Melur;
(iii) the petitioners shall be available for interrogation by the respondent police daily at 10.30 a.m. until further orders.