Prayer
For Anticipatory Bail in Cr.No.569/2024 on the file of the respondent police.
Order
The Court made the following order :-
Petitioner filed A.B for the offence registered under section 303(2) BNS., 2023
The petitioner, who apprehends arrest at the hands of the respondent police for the alleged offence under Section 303(2) of BNS Act in Crime No.569 of 2024 on the file of the respondent police, seeks anticipatory bail.
Theft of tyres worth rs. 3000
2. The case of the prosecution is that the defacto complainant was running a Vulcanizing shop. On 22.10.2024, when he came to the shop in the morning, old tyres worth about Rs.3,000/- were found missing. On verifying the CCTV footage it was found that the petitioner had taken those tyres.
3. Heard the learned counsel appearing for the petitioner and the learned Government Advocate (Crl.Side) appearing for the respondent.
The admitted case of prosecution is the value of theft is less than rs. 5000
4. In the instant case, the FIR has been registered under Section 303(2) of BNS Act, 2023 (hereinafter referred to as ‘BNS Act’).
The admitted case of the prosecution is that three lorry tyres worth about Rs.3,000/- was stolen. The proviso to Subsection 2 of Section 303 of BNS Act provides that in a case of theft, where the value of theft property is less than Rs.5,000/- and person is convicted for the first time, the punishment that is provided is community service. For the value of property less than Rs.5,000, it is non-cognizable and bailable.
Since the stolen property value is rs. 3000 and is a non-cognizable offence the police ought to have registered the FIR after getting the appropriate order from the Magistrate
5. The specific case of prosecution as stated supra is that the value of the stolen property is Rs.3,000/-. Hence, it will come within the scope of non-cognizable offense. If that is so, as per Section 174 of BNSS Act (hereinafter referred to as ‘New Procedure Code’) the FIR can be registered only after getting an appropriate order from the learned Magistrate, who is having power to try such a case. In the absence of the same, the very registration of FIR is illegal. The law on the issue is too well settled.
Petition filed for Anticipatory Bail is not maintainable since the offence is bailable
6. In view of the above, the FIR that has been registered against the petitioner is not sustainable in law. Technically speaking, this anticipatory bail petition is not maintainable, since the offence is bailable. However, this Court by exercising its jurisdiction under Section 482 of Cr.P.C is inclined to interfere with the FIR, since the very registration of FIR for a non-cognizable offence, without getting appropriate orders of learned Magistrate is illegal.
Petition quashed
7. In the light of the above discussion, the FIR in Cr.No.569 of 2024 on the file of the respondent Police is hereby quashed and this Criminal Original Petition stands allowed.
Party
Jebaraj @ Jeyaraj … Petitioner/Accused Vs The State of Tamil Nadu, Rep By, The Inspector of Police, Tirunelveli Taluk Police Station, Tirunelveli District. Cr.No.569/2024. … Respondent/Complainant – Before The Madurai Bench of Madras High Court (Criminal Jurisdiction) Crl O P(Md). No.19623 Of 2024 – Date: 13/11/2024 Present The Hon`Ble Mr.Justice N.Anand Venkatesh.
Author’s note
Where is the legal profession going?
When I read this order, I first noticed that the Hon’ble Madras High Court (Madurai Bench), through His Lordship Mr. Justice NAVJ, has provided complete justice (remedy) to the party/petitioner even though the present petition could not be filed as per the law.
By reading this order we may easily presumed and it is unfortunate that a lawyer has canvased his client (petitioner/party to this case) to file a petition for Anticipatory bail that too for a bailable offence by infusing fear of arrest in the mind of the party/petitioner as if he would be arrested if he fails to obtain Anticipatory Bail/Pre-Arrest Bail in a bailable offence case. The concerned lawyer in this case is succeeded by implying in the mind of the petitioner/party that there is a provision under the law to obtain Anticipatory Bail for a bailable offence, and thereafter making the party to sign in the vakalat.
To my knowledge, I never come across this type of practice by a legal practitioner, but the same was cornered by the Hon’ble Madras High Court and has provided a complete justice to the party/petitioner in the present case inasmuch as the High Court is not only the court of law so also the court of justice.
