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The Indian Penal Code
Section 438 in The Indian Penal Code
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State Of Maharashtra vs Rashid B. Mulani on 4 January, 2006
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Punjab-Haryana High Court
Bharat Inder Singh Chahal vs State Of Punjab on 10 September, 2008
Criminal Misc. No.39183 of 2008
In Criminal Misc. No.M-22042 of 2008                       -1-

                                     ****


IN THE HIGH COURT OF PUNJAB AND HARYANA
              AT CHANDIGARH

                       Criminal Misc. No.39183 of 2008
                       In Criminal Misc. No.M-22042 of 2008
                       Date of decision : 10.09.2008

                             ****

Bharat Inder Singh Chahal                            .....Petitioner

                       Versus
State of Punjab                                ...Respondent

                             ****

CORAM : HON'BLE MR. JUSTICE S. D. ANAND

                             ****

Present:   Mrs. Manjari Nehru, Deputy Advocate General, Punjab
           for applicant-respondent.

           Mr. R.S.Cheema, Senior Advocate with
           Mr. K.S. Nalwa, Advocate for the non-applicant-petitioner

                                     ****

S. D. ANAND, J.

1. The non-applicant-petitioner Bharat Inder Singh Chahal, a former Media Advisor to the then Chief Minister, Punjab, filed Criminal Misc. No. M-22042 of 2008 under Section 438 of the Code of Criminal Procedure, 1973 ( hereinafter referred to as "the Code") "for the grant of pre-arrest bail or for issuance of 10 days' advance notice in any case likely to be registered against the petitioner in the State of Punjab by any wing of Punjab Police."

2. The matter came to be listed before this Court on Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -2- **** 29.8.2008.

3. The learned Deputy Advocate General, Punjab accepted notice on behalf of the State. An advance copy of the petition had been delivered (in the office of Advocate General, Punjab) a day earlier. Learned State counsel resisted the plea for grant of blanket (anticipatory) bail. The averment, in the context, was that it could be misused by the petitioner. That facet of the relief applied for was declined by this Court. Qua the other facet of the relief, this Court noticed the resistance offered by the State and passed the following orders:-

"Insofar as the other facet of the relief applied for is concerned, this Court is of the opinion that the period asked for is on the higher side.
It would be appropriate to grant an order that in case the respondent decides to proceed against the petitioner, in any fresh case, he will be afforded three days time to have recourse to the law."

4. It would be appropriate to indicate here that the State also resisted the plea afore-mentioned on an apprehension that the petitioner may go abroad in the meantime. Qua that apprehension, it was ordered by this Court that "the petitioner shall not leave the country without express orders of the Court." In that context, learned Senior counsel appearing on behalf of the non-applicant- petitioner also informed the Court that "the petitioner would not, in Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -3- **** any case, leave the country without express order of the Court."

5. Apart therefrom, learned State counsel placed on record that "averments made in the course of the petition are factually wrong and the grant of a part of the relief may not be taken to be an expression of opinion on the merits of the case."

6. In the context of that averment, this Court passed the following order:-

"This Court quite appreciates the anxiety of the learned State Counsel. By the very nature of things, the grant of partial relief to the petitioner would not, in any case, be taken to be any expression of opinion on the correctness or otherwise of averments made in the course of the petition."

7. The present plea (Criminal Misc. No. 39183 of 2008) has been filed by the State of Punjab for "modifying or/and for recalling of the order dated 29.8.2008 passed in CRM No. M-22042 of 2008 whereby this Hon'ble Court had been pleased to order that in case the State of Punjab decides to proceed against the petitioner then the State would afford three days time to the latter to have recourse to law is not in conformity with the settled law as laid down by the Hon'ble Supreme Court."

8. The plea is resisted on behalf of the non-applicant- petitioner.

9. Before proceeding to undertake the adjudicatory exercise Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -4- **** for determining the controversy, it would be appropriate to notice the premise upon which the plea for modification and/or for recall of the order dated 29.8.2008 is based.

10. The non-applicant-petitioner (Bharat Inder Singh Chahal) obtained the impugned order by `withholding' from the Court, the nature of the order granted by a Division Bench of this Court in Civil Writ Petition No. 9434 of 2007 (Bharat Inder Singh Chahal Vs. State of Punjab and others). That was a Civil Writ Petition filed by the non- applicant-petitioner under Articles 226/227 of the Constitution of India to obtain blanket/anticipatory bail in the light of a 'consensual' position that a prayer for blanket bail has to be made by filing a writ petition under Article 226 of the Constitution of India. That `consensual' position, it was pointed out, surfaced in the course of the hearing and is noticed in the order dated 1.6.2007 passed by a Coordinate Bench of this Court (Uma Nath Singh, J.) while disposing of Criminal Misc. No. 35545-M of 2007 (Annexure P-11) ("As during the course of hearing, there was a consensus that such a prayer for blanket bail should have been made by way of writ petition under Article 226 of the Constitution of India where this Court has got wide powers to deal with the question of life and liberty of a citizen, the petitioner is granted liberty to approach this Court by way of a writ petition, if so advised.").

11. The non-applicant-petitioner had also not brought to the notice of this Court that the disposal of the plea (preferred by non- Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -5- **** applicant/petitioner vide Criminal Misc. No. 35545-M of 2007) had to be disposed of in the light of the decision rendered by the Apex Court in Adri Dharan Das Vs. State of West Bengal reported in 2005 (4) SCC 303. It was pointed out that the above observation had been made by the Apex Court in the course of disposal of SLP No. 3514 of 2007 (Annexure P/17), which had been filed by the State of Punjab against the order dated 1.6.2007 passed by Uma Nath Singh, J. ("It shall be indicated in the notice that the order passed by the High Court may be modified to bring in lines with the decision of this Court in Adri Dharan Das Vs. State of West Bengal reported in 2005 (4) SCC 303.)

12. Learned State counsel conceded being cognizant of the proposition that the recall of an order is not provided for in criminal law but argued that a resort to the remedy to recall would be in the interest of justice in view of the fact that the non-applicant-petitioner obtained the impugned order by withholding relevant information (with regard to exact orders passed by a Division Bench of this Court in Civil Writ Petition No. 9434 of 2007 disposed of by P.Sathasivam, and Rajive Bhalla, JJ.) from the Court. The further argument, in the context, was that this Court was 'persuaded' to commit a mistake by the non-applicant-petitioner by not bringing to its pointed notice the fact that the Apex Court (in SLP No. 3514 of 2007) had ordered the decision of the relevant matter "in lines with the decision of this Court in Adri Dharan Das Vs. State of West Bengal reported in Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -6- **** 2005 (4) SCC 303.)"

13. In support of the plea that, in a such like eventuality, the law would envision a recall action, learned State counsel relied upon the following observations made by the Apex Court in Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd. 1996 (5) SCC 550:-

"Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order."

14. While drawing sustenance from the judicial pronouncement aforementioned, the Apex Court held in United India Insurance Co. Ltd. Vs. Rajendra Singh and others etc. 2000(2) R.C.R. (Civil) 483 that "no Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. ....... The person affected has no other remedy but to apply for review/recalling of a fraudulent order against him or to approach the High Court under Article 226 of the Constitution."

15. In order to buttress the plea afore-mentioned, reliance Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -7- **** was also placed on Gowrishankar Vs. Joshi Amba Shankar Family Trust 1996 (1) Apex Court Journal 286 (SC).

16. Further more, the non-applicant-petitioner also did not inform this Court that the relief sought in the present petition (Criminal Misc. No. M-22042 of 2008 disposed of by this Court vide impugned ordated 29.8.2008 and in Civil Writ Petition No. 9434 of 2007) was exactly similar. It was also argued that non-applicant- petitioner ought to have explained to the Court the circumstances under which a resort had been had to a petition under Section 438 of the Code after the `consensual' position that had surfaced before a Coordinate Bench of this Court that blanket bail could be applied for only by filing a Civil Writ Petition under Articles 226/227 of the Constitution of India (Annexure P/11).

17. In an act of resistance, learned Senior Counsel appearing on behalf of the non-applicant-petitioner, at the very outset, raised a challenge to the very maintainability of the present plea. In support of the advocated averment that the concept of recall/review/modification ( of the averred category) is foreign to criminal law, learned counsel relied upon Hari Singh Mann Vs. Harbhajan Singh Bajwa & others 2001 SCC (Criminal) 113, State of Orissa Vs. Ram Chander Agarwala AIR 1979 Supreme Court 87, Smt. Sooraj Devi Vs. Pyare Lal and another AIR 1981 Supreme Court 736 and Mostt. Simrikhia Vs. Smt. Dolley Mukherjee 1990 Criminal Law Journal 1599 (SC). Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -8- ****

18. Learned Senior Counsel further argued that the non- applicant - petitioner is not open to the charge of any concealment in view of the fact that it had been pointedly averred in para 6 (viii) ( at page 39 of the petition) that "This Hon'ble Court while disposing of CWP No. 9434 of 2007 filed by the petitioner, after considering the law as laid down in Gurbax Singh Sibia's case held that under Section 438 of the Code of Criminal Procedure, the Hon'ble High Court has power to grant a blanket order in an extraordinary case and if special circumstances are available. The said judgment of the Division Bench of this Hon'ble Court is reported as 2007 (3) RCR (Criminal) 977 (DB) (paras 6,7, 8)". It was also argued that factum of filing of that petition and also disposal thereof, had also been indicated in para 10 (at page 57 of the petition). It was further argued that, while disposing of Civil Writ Petition No. 9434 of 2007, a Division Bench of this Court had held that "the petitioner is free to raise all available objections before the concerned Court when he moves application(s) for anticipatory bail/bails."

19. In the context of the averment that the nature of the final order passed by a Division Bench of this Court in CWP No.9434 of 2007 had not been brought to the notice of this Court, it was argued that the relevant case had been reported in a large number of journals and there was no way the non-applicant-petitioner could be accused of having refrained from bringing the orders aforementioned to the notice of this Court. By raising that plea, the learned Senior Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -9- **** Counsel endeavoured to shrug off the accountability which the learned Counsel for the applicant-respondent wanted to force upon the petitioner in the context.

20. I have heard Ms. Manjari Nehru, learned Deputy Advocate General, Punjab appearing for the applicant-respondent and Mr. R.S. Cheema, learned Senior Counsel assisted by Mr. K.S.Nalwa, Advocate appearing for the non-applicant-petitioner and have carefully gone through the record.

21. Though the Code of Criminal Procedure does not envision a provision for review, the rulings rendered by the Apex Court in Indian Bank and United India Insurance Co. Ltd. cases (supra) cement the plea, advocated on behalf of the applicant- respondent that the Court is not powerless to recall its own order, if it is proved that it had been obtained by fraud practised upon the Court or if the Court had been misled by a party or the Court itself committed a mistake which prejudiced a party.

22. Apart therefrom, the Apex Court in R.Rajeshwari Vs. H.N. Jagadish 2008(2) RCR (Criminal) 171 upheld the power of High Court to revive its own order where the judgment was proved to have been obtained by a party by practicing fraud. Of course, a note of caution was added by the Apex Court by observing that it had to be done in rare cases. The following are the relevant observations made by the Apex Court in that case:-

"In view of the aforementioned specific bar created in Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -10- **** regard to exercise of the jurisdiction of the High Court to review its own order, we are of the opinion that ordinarily exercise of jurisdiction under Section 482 of the Code of Criminal Procedure would be unwarranted. We assume that in some rare cases, the High Court may do so where a judgment has been obtained from it by practicing fraud but it does not appear that such a case has been made."

23. As would be evident from a perusal of the record, the parties had, on consensual basis, agreed before a Coordinate Bench of this Court (Annexure P-11) that an order on point of blanket bail was obtainable only by filing a Civil Writ Petition under Article 226 of the Constitution of India. In fact, the non applicant-petitioner followed it up by filing Civil Writ Petition No. 9434 of 2007. In that view of things, it was for the non-applicant-petitioner to indicate to the Court the circumstances under which he had opted to prefer a petition under Section 438 of the Code, instead of preferring a Civil Writ Petition, for that very relief. It requires notice, at this stage, that the relief sought in the matter pending before this Court and Civil Writ Petition No. 9434 of 2007 was similar in character inasmuch as, in both the cases, the relief sought was for grant of advance notice "in case his custody is sought in any FIR which is to be registered against him in future." That prayer stemmed from an allegation that non-applicant-petitioner apprehended torture at the hands of the police. There can be no denial of the fact that there was Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -11- **** commonness of the relief sought insofar as the advance notice is concerned. By having filed that Civil Writ Petition, the non-applicant- petitioner reiterated the consensus noticed in Annexure P-11. The refrain, on the part of the non-applicant-petitioner, in explaining the filing of a petition under Section 438 of the Code (instead of a Civil Writ Petition under Articles 226 of the Constitution of India), amounted to what may be termed as an attempt to overreach the Court, particularly in the light of the commonness of the relief claimed in CWP No. 9434 of 2007 and Crl. Misc. No.M-22042 of 2008.

24. It is neither here nor there for the learned Senior Counsel for the non-applicant-petitioner to aver that the factum of disposal of the writ petition afore-mentioned came to be mentioned in the course of para 6 (viii) (at page 39) of the petition. The fact that the ruling aforesaid came to be reported in a journal can also not be of any assistance to the learned Senior Counsel for the non- applicant-petitioner to put forward a plea that the non-applicant- petitioner was not required to bring to the notice of the Court the exact terms in which that petition had been disposed of.

25. There is yet another count on which the non- applicant/petitioner cannot escape the charge of having refrained from bringing to the notice of this Court the exact orders passed by the Apex Court in SLP No. 3514 of 2007.

26. That charge does not stick only to the non-applicant- Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -12- **** petitioner. It sticks to the applicant-respondent as well. Though not sounding accusatory at all, this Court would like to notice the fact that both the parties did not bring to the notice of this Court the exact terms in which Civil Writ Petition No. 9434 of 2007 had been disposed of and also the fact that a similar plea had been ordered to be disposed of in terms of Adri Dharan Das's case (supra), as per the observations made by the Apex Court in SLP No.3514 of 2007. The applicant-respondent also did not file on record a copy of the order passed in that C.W.P. The Court was thereby persuaded to commit a mistake. It was incumbent upon the parties to bring all these facts to the notice of this Court. Then only, it could be said that proper assistance, in the matter of disposal of the matter under reference, had been rendered to this Court.

27. The reliance placed by the learned Senior Counsel for the non-applicant-petitioner upon Civil Writ Petition No. 10119 of 2007 (Raninder Singh and another Vs. State of Punjab and others) decided on 28.5.2008 is misconceived. That was not a petition under Section 438 of the Code. Instead, it was a petition under Article 226 of the Constitution of India in which blanket bail had been granted by a Division Bench of this Court.

28. The reliance placed by the learned Senior Counsel for the non-applicant-petitioner upon Hari Singh Mann, State of Orissa, Smt. Sooraj Devi and Mostt. Simrikhia's cases (supra) is equally misconceived for the reasons recorded hereunder:- Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -13- ****

29. In Hari Singh Mann's case (supra), a Single Judge of the High Court had disposed of a petition on 7.1.1999 with a direction to the SSP "to look into the allegations of the petitioner and if some cognizable offence was found to have been committed, to order for the registration of the case but if the allegations were found to be false, to prosecute the petitioner under Section 182 IPC." Thereafter, respondent no.1 therein again filed a Misc. Petition which came to be disposed of by the same Single Judge without notice to the opposite party thereto. Vide that Misc. petition, the respondent therein, informed the Court that he did not want to prosecute his allegation. In the light of the averment, the Single Judge issued a direction that the SSP need not comply with the direction dated 7.1.1999. The respondent therein also filed another Criminal Misc. petition to obtain quashment of the Court orders dated 30.4.1999. Consideration of that petition amounted to a review of the order dated 7.1.1999. It was in the light thereof that the Apex Court invalidated the orders by holding that with the disposal of the initial petition, under Section 482 Cr.P.C. on 7.1.1999, no lis remained pending where the respondent therein could have filed any Misc. Petition.

30. In State of Orissa Vs. Ram Chander Agarwala (supra) as well, the facts were entirely different. In that case, certain accused had been convicted under Section 20 (e) of the Forward Contracts (Regulation) Act, 1952. A consolidated fine of Rs.2000/- was Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -14- **** imposed upon them by the District Magistrate. It was ordered that they would under go simple imprisonment for three months in case they did not pay up the fine. An appeal, preferred by the accused against their conviction and sentence, was dismissed by the Sessions Judge, who referred the matter to the High Court for grant of an appropriate order in the matter of sentence. The Sessions Judge made that reference as he found that the fine imposed was less than the minimum provided under the law. The accused also preferred a revision petition against the order of Sessions Judge. The reference made by the Sessions Judge, as well as the revision- petitions, were heard by the High Court which dismissed the petition preferred by the accused and accepted the reference by the Sessions Judge and enhanced the fine payable by the firm. However, the High Court sentenced the Manager to six months imprisonment. The firm paid up the fine but the individuals, who had been awarded substantive sentence of imprisonment, filed Criminal Misc. petition before the High Court for review of its order. That review plea was accepted by the High Court. It set aside the substantive sentence awarded to the Manager and replaced it by a fine. It was under those circumstances that the Apex Court held that review on the above indicated lines was not permissible.

31. In Smt. Sooraj Devi's case (supra), the applicant therein had sought review of "the earlier order of the High Court directing restoration of possession of the property to the respondent be Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -15- **** clarified by a declaration that it was not binding on her and did not affect her possession." The Apex Court held, in the circumstances of that case, that clarification aforementioned was not permissible under the law.

32. In Mostt. Simrikhia Vs. Smt. Dolley Mukherjee's case (supra), the facts were entirely different. In that case, instituted on a private complaint, the Judicial Magistrate concerned transferred the case for enquiry under Section 202 of the Code of Criminal Procedure. The Court of Judicial Magistrate Second Class examined the witnesses and ordered the issuance of process against two accused. That order was challenged under Section 482 of the Code of Criminal Procedure before the High Court. The essential plea urged before the High Court was that the Judicial Magistrate First Class could not have transferred the case without taking cognizance of the offence. The High Court dismissed the petition by holding that there was no illegality in that order. The respondents therein again filed a Criminal Misc. application under Section 482 of the Code of Criminal Procedure before the High Court alleging inter-alia that "the record of the proceedings on close scrutiny would indicate that the case had not been taken cognizance of before the transfer." The learned Single Judge accepted the plea and quashed the proceedings. It was under those circumstances that the Apex Court held that a review was not permissible.

33. In the light of the above discussion, it is apparent that the Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -16- **** maintainability of the present petition cannot be successfully challenged.

34. The learned counsel for the parties had also addressed arguments on the merits of the case. The plea on behalf of the applicant-respondent was that the grant of the impugned order was neither legal nor appropriate in the circumstances of the case. Qua the former part of challenge, reliance was placed upon the view taken by the Apex Court in Adri Dharan Das vs. State of West Bengal, 2005(2) RCR (Criminal) 32 and State of Maharashtra vs. Mohd. Rashid and another, (2005) 7 Supreme Court Cases 56. Qua the latter count of grievance, it was argued that the petitioner having already obtained bail in the cases registered against him till date, has not been able to make out a case for grant of an order that a notice should be given to him `whenever he had to be arrested and for whichever offence he was to be arrested.' In support of the pleaded argument, reliance is placed upon the following observations made by the Apex Court in the former judicial pronouncement:-

"15. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead, innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has `reason to believe' that he may be arrested in a non-bailable Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -17- **** offence. Use of the expression `reason to believe' that the applicant may be arrested must be founded on reasonable grounds. Mere "fear" is not `belief' for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief on the applicant is based that he may be arrested in non- bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, if is for the Court concerned to decide whether a case has been made out of for granting the relief sought. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever".

Such `blanket order' should not be passed as it would Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -18- **** serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device is secure the individual's liberty' it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed."

35. It was also argued by the learned Counsel for the applicant-respondent that the grant of a notice of the indicated category would impede the process of investigation which, in a given case, could be aimed at obtaining information `regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime.'

36. The learned Senior Counsel appearing on behalf of the non-applicant / petitioner argued the contrary by urging that the grant of requested order would enable the Court to protect the petitioner, a citizen, against the wanton onslaught of the police which is acting in the context at the behest of the ruling party which has a grievance that it was the petitioner who was responsible for the launching of a prosecution under the Prevention of Corruption Act against the present head of the Government.

37. A conjunctive perusal of the relevant provisions of the Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -19- **** Code of Criminal Procedure and also the Judicial pronouncements which came to be rendered by the Apex Court and this Court on the subject from time to time (quite a few of which stand quoted in an earlier part of this order), the Courts have always been endeavouring to strike a balance between the desire to protect the liberty of a citizen and the liberty which an Investigating Agency deserves for freely conducting an investigation. It is reflection of that anxiety of the Court that persons applying for anticipatory bail in a given case are allowed the benefit of anticipatory bail. In such an eventuality, the Courts also issue direction to the Investigating Agency to afford few days time to the person (apprehending arrest) to have recourse to the law. That eventuality would, however, be inferred to have arisen only when the apprehension in the mind of a citizen is relatable to an indicated action at the hands of the police. The mere `fear' in the mind of citizen would not enable him to plead for a notice at the hands of the Investigating Agency before he could be arrested.

38. In the present case, it appears that the various Investigating Agencies of the State of Punjab have been investigating different complaints against the non-applicant / petitioner who has been able to obtain anticipatory and also regular bail in those matters. The averments, made in the course of the present petition, appear to be reflective of a fearful mind set of the non-applicant/petitioner for being proceeded against by the Investigating Agencies of the State. That fear in his mind does not Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -20- **** presently appear to stem from a cause which may have fructified in the form of an FIR or otherwise. It stems from a feeling in the mind of the petitioner that he would be picked up all of a sudden and involved in a case, as a measure of reprisal under an apprehension that he was responsible for the launching of a prosecution against the indicated head of the Government. A such like situation was the subject of judicial adjudication in State of Maharashtra vs. Mohd. Rashid and another, (2005) 7 Supreme Court Cases 56. In that case, the following observations made by the Apex Court would appear to be relevant in the context:-

"Having heard the learned counsel for the parties and also having perused the record, including the order dated 26.8.2002, it is clear that such a blanket protection of not arresting the first respondent in any crime, except after written notice to him, could not be passed. Accordingly, the direction given in the penultimate paragraph of the impugned order giving blanket protection to the first respondent is set aside and, to that extent, the impugned order stands modified."

39. The following facts can, thus, be safely culled out from the above discussion:-

a) In the light of the observations made by the Apex Court in Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd., 1996 (5) SCC 550, United India Insurance Co. Ltd. Vs. Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -21- **** Rajendra Singh and others etc. 2000(2) R.C.R. (Civil) 483 and Gowrishankar Vs. Joshi Amba Shankar Family Trust 1996 (1) Apex Court Journal 286 (SC), this Court is not powerless in the context and it has the inherent power to set aside an order obtained by fraud practiced upon it or where it was misled by a party or where it itself committed a mistake which prejudiced a party.
b) The non-applicant/petitioner neither gave an exact idea of the final order passed by a Division Bench of this Court in CWP No.9434 of 2007 nor enclosed a copy thereof with the petition. He, thereby, disabled this Court from noticing the fact that the Division Bench did not find that the petitioner therein (non-applicant/petitioner in the present case) had not been able to make out a case for issuance of advance notice before being arrested.
c) The non-applicant/petitioner also did not bring to the notice of this Court that the (anticipatory) bail plea had to be disposed of "in lines with the decision of this Court in Adri Dharan Das Vs. State of West Bengal reported in 2005(4) SCC 303", as observed by the Apex Court while disposing of SLP No. 3514 of 2007 (Annexure P/17).

d) For the reasons noticed in the foregoing paras of this order, it is evident that both the parties did not render Criminal Misc. No.39183 of 2008 In Criminal Misc. No.M-22042 of 2008 -22- **** proper assistance to this Court in the disposal of Crl. Misc. No.M-22042 of 2008 vide order dated 29.08.2008.

e) The grant of an order on point of advance notice in respect of cases which may come to be registered at any future date would be violative of the law laid down by the Apex Court in Adri Dharan Das's case (supra) and State of Maharashtra vs. Mohd. Rashid's (supra),

f) Though it may not be appropriate to say that any `deception' had been practised upon the Court, both the parties do not come out very clean in not having rendered proper assistance to this Court in the matter of disposal of Crl. Misc. No. M-22042 of 2008. This Court was pursuaded by the above refrain to commit a mistake in not having decided the plea (in Crl.Misc. No. M-22042 of 2008) in accordance with the law laid down by the Apex Court in Adri Dharan Das's case (supra) and State of Maharashtra vs. Mohd. Rashid's (supra),

40. In the light of foregoing discussion, the Criminal Misc. No. 39183 of 2008 filed by the applicant-respondent/State of Punjab shall stand allowed. The impugned order dated 29.08.2008 is recalled. The Criminal Misc. No. M-22042 of 2008 shall stand dismissed.

September 10, 2008                              (S. D. ANAND)
Pka                                                 JUDGE
Note: Whether to be referred to reporter :    Yes/No