A Constitution Bench of the Hon’ble Supreme
Court dealt with Section 438 of the Cr.P.C. in Shri
Gurbaksh Singh Sibbia (supra) and has enunciated the
principle of law of anticipatory bail in paragraphs 40 to
44, which may be set out hereunder:-
“40. Section 438(1) of the Code lays down a
condition which has to be satisfied before
anticipatory bail can be granted. The applicant
must; show that he has “reason to believe” that he
may be arrested for a non-bailable offence. The
use of the expression “reason to believe” shows
that the belief that the applicant may be so
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 a vague apprehension that someone
is going to make an accusation against him, in
pursuance of which he may be arrested. The
grounds on which the belief of the applicant is
based that he may be arrested for a non-bailable
offence, must be capable of being examined by the
Court objectively, because it is then alone that the
court can determine whether the applicant has
reason to believe that he may be so arrested.
Section 438(1), therefore, cannot be invoked on
the basis of vague and general allegations, as if to
arm oneself in perpetuity against a possible
arrest. Otherwise, the number of applications for
anticipatory bail H will be as large as, at any rate,
the adult populace. Anticipatory bail is a device
to 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.
41. Secondly, if an application for anticipatory bail
made to the High Court or the Court of Session it
must apply its own mind to the question and
decide whether a case has been made out for
granting such relief. It cannot leave the question
for the decision of the Magistrate concerned Under
Section 437 of the Code, as and when an occasion
arises. Such a course will defeat the very object of
Section 438.
42. Thirdly, the filling of a First Information
Report is not a condition precedent to the exercise
of the power Under Section 438. The imminence
of a likely arrest founded on a reasonable belief
can be shown to exist even if an F.I.R. is not yet
filed.
43. Fourthly, anticipatory bail can be granted
even after an F.I.R. is filed, so long as the
applicant has not been arrested.
44. Fifthly, the provisions of Section 438 cannot
be invoked after the arrest of the accused. The
grant of “anticipatory bail” to an accused who is
under arrest involves a contradiction in terms, in
so far as the offence or offences for which he ‘is
arrested, are concerned. After arrest, the accused
must seek his remedy Under Section 437 or
Section 439 of the Code, if he wants to be released
on bail in respect of the offence or offences for
which he is arrested.”
The aforesaid decision is an authority for the
proposition that even filing of an FIR is not a condition
precedent to the exercise of power under Section 438 of
the Cr.P.C. The imminence of likely arrest founded on a
reasonable belief can be shown to exist, even if an F.I.R.
is not yet filed.
CALCUTTA HIGH COURT
In the matter of: An application for anticipatory bail
Under Section 438 of the Code of Criminal Procedure,
1973.
In the matter of: Siraj Roy
V
State.
Dated:22.09.2017
Apprehending arrest in connection with Amherst
Street Police Station FIR No. 343 of 2016 dated
25.10.2016 under sections 506/509/114 of the Indian
Penal Code (hereafter the IPC), with added Section 376
of the IPC, the petitioner has approached this Court for
a pre-arrest direction of bail under Section 438 of the
Code of Criminal Procedure (hereafter the Cr. P.C.).
The case of the prosecution in brief is that the
aforesaid FIR was registered on the basis of an
information given by the defacto complainant to the
effect that the accused persons being aided and abetted
by one another used abusive language towards the
defacto complainant and thereby they have interfered
with her modesty. Moreover, the petitioner including the
other accused persons have also threatened the defacto
complainant with dire consequences.2
In course of investigation, the defacto complainant
was produced before the learned magistrate and her
statement was recorded under Section 164 of the
Cr.P.C. In the meantime, all the accused persons
surrendered before the learned Court below and they
have been granted bail till 28th November, 2017.
During investigation, the investigating officer
submitted a prayer for adding Section 376 of the IPC
against Siraj Roy. Pursuant thereto, Section 376 of the
IPC was added against the petitioner and his bail was
cancelled. The learned magistrate issued warrant of
arrest against the petitioner.
Challenging the said order of the learned
magistrate, the criminal revisional jurisdiction of this
Court was invoked by filing CRR 1255 of 2017. A
learned Judge of this Court was pleased to reject the
said application holding inter-alia that the learned
magistrate was perfectly justified in cancelling the bail
of the petitioner and as follow up action, by issuing
warrant of arrest against the him. While passing such
order, the learned Judge granted liberty to the petitioner
to surrender before the Court of the learned Magistrate
and pray for regular bail in accordance with law, if so
advised.
In this backdrop of facts and circumstances, the
petitioner has filed this application.
Mr. Sandipan Ganguly, learned senior advocate
appearing on behalf of the defacto complainant has
raised the question of maintainability of the application
on the ground that the petitioner did not comply with
the direction given by the learned Judge in CRR 1255 of
2017 and that the petitioner cannot pray for
anticipatory bail since His Lordship specifically directed
the petitioner to surrender before the Court of the3
learned Magistrate. He further contended that the
scope of prayer for bail under Section 438 of the Cr.P.C.
may be restricted, which would be evident from the
decision reported in (2012) 8 SCC 730 (Lavesh Vs.
State). He vehemently contended that the learned
Judge has virtually restricted the scope of taking
recourse to the provision of Section 438 of the Cr.P.C. in
view of the specific direction for surrender before the
Court of the learned Magistrate.
Mr. Milan Kumar Mukherjee, learned senior
advocate appearing on behalf of the petitioner
contended that the question of maintainability in the
similar fact situation was dealt with by a coordinate
Bench of this Court in C.R.M. 11409 of 2015 (Sayantan
Chatterjee v. State) wherein Their Lordships held that
despite direction by the Single Bench to surrender
before the Court of the learned Magistrate, the prayer
for anticipatory bail is maintainable. He has further
relied on the decisions reported in AIR 1980 SC 1632
(Shri Gurbaksh Singh Sibbia and Ors. Vs. State of
Punjab), (2011) 1 SCC (Cri) 514 (Siddharam
Satlingappa Mhetre Vs. State of Maharashtra and
Others) and (2016) 1 SCC 152 (Bhadresh Bipinbhai
Sheth Vs. State of Gujarat and another) in support of
his contention. He candidly contended that the Hon’ble
Apex Court has specifically observed in Siddharam
Satlingappa Mhetre (supra) that the Hon’ble Court
cannot even give direction for surrender in the Court
below even after granting of anticipatory bail since such
order amounts to interference with the liberty of the
citizen. Also, in the similar fact situation the Hon’ble
Supreme Court, in Bhadresh Bipinbhai Sheth (supra)
has granted anticipatory bail setting aside the order of
the High Court. In the premises set forth above, he
submitted that no such direction can be given for
surrender in the Court below even after grant of
anticipatory bail, far to speak of rejection of such prayer
for anticipatory bail.
A Constitution Bench of the Hon’ble Supreme
Court dealt with Section 438 of the Cr.P.C. in Shri
Gurbaksh Singh Sibbia (supra) and has enunciated the
principle of law of anticipatory bail in paragraphs 40 to
44, which may be set out hereunder:-
“40. Section 438(1) of the Code lays down a
condition which has to be satisfied before
anticipatory bail can be granted. The applicant
must; show that he has “reason to believe” that he
may be arrested for a non-bailable offence. The
use of the expression “reason to believe” shows
that the belief that the applicant may be so
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 a vague apprehension that someone
is going to make an accusation against him, in
pursuance of which he may be arrested. The
grounds on which the belief of the applicant is
based that he may be arrested for a non-bailable
offence, must be capable of being examined by the
Court objectively, because it is then alone that the
court can determine whether the applicant has
reason to believe that he may be so arrested.
Section 438(1), therefore, cannot be invoked on
the basis of vague and general allegations, as if to
arm oneself in perpetuity against a possible
arrest. Otherwise, the number of applications for
anticipatory bail H will be as large as, at any rate,
the adult populace. Anticipatory bail is a device
to 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.
41. Secondly, if an application for anticipatory bail
made to the High Court or the Court of Session it
must apply its own mind to the question and
decide whether a case has been made out for
granting such relief. It cannot leave the question
for the decision of the Magistrate concerned Under
Section 437 of the Code, as and when an occasion
arises. Such a course will defeat the very object of
Section 438.
42. Thirdly, the filling of a First Information
Report is not a condition precedent to the exercise
of the power Under Section 438. The imminence
of a likely arrest founded on a reasonable belief
can be shown to exist even if an F.I.R. is not yet
filed.
43. Fourthly, anticipatory bail can be granted
even after an F.I.R. is filed, so long as the
applicant has not been arrested.
44. Fifthly, the provisions of Section 438 cannot
be invoked after the arrest of the accused. The
grant of “anticipatory bail” to an accused who is
under arrest involves a contradiction in terms, in
so far as the offence or offences for which he ‘is
arrested, are concerned. After arrest, the accused
must seek his remedy Under Section 437 or
Section 439 of the Code, if he wants to be released
on bail in respect of the offence or offences for
which he is arrested.”
The aforesaid decision is an authority for the
proposition that even filing of an FIR is not a condition
precedent to the exercise of power under Section 438 of
the Cr.P.C. The imminence of likely arrest founded on a
reasonable belief can be shown to exist, even if an F.I.R.
is not yet filed.
Admittedly, a warrant of arrest has been issued
against the petitioner and, therefore, the petitioner has
reasonable apprehension that he may be arrested by the
police in terms of the warrant of arrest issued by the
learned magistrate. In view of the ratio in Shri
Gurbaksh Singh Sibbia (Supra), the petitioner is thus
entitled to apply for anticipatory bail under Section 438
of the Cr.P.C.
In Siddharam Satlingappa Mhetre (supra), it has
been observed by the Apex Court in paragraphs 112 and
113 as follows:
“112. The validity of the restrictions imposed by
the Apex Court, namely, that the accused released
on anticipatory bail must submit himself to
custody and only thereafter can apply for regular
bail. This is contrary to the basic intention and
spirit of Section 438 Code of Criminal Procedure.
It is also contrary to Article 21 of the Constitution.
The test of fairness and reasonableness is implicit
under Article 21 of the Constitution of India.
Directing the accused to surrender to custody
after the limited period amounts to deprivation of
his personal liberty.
113. It is a settled legal position crystallized by the
Constitution Bench of this Court in Sibbia’s case
(supra) that the courts should not impose
restrictions on the ambit and scope of Section 438
Code of Criminal Procedure which are not
envisaged by the Legislature. The Court cannot
rewrite the provision of the statute in the garb of
interpreting it.”
Moreover, in the decision reported in (2003) 2
SCC 649 (M. C. Abraham and Anr. Vs. State of
Maharashtra and Ors.) it has been observed that even
rejection of anticipatory bail does not give the
jurisdiction to the Court to direct the petitioner to
surrender in the Court below. The last portion of
paragraph 15 may be quoted from the said decision for
proper appreciation:
“The mere fact that the bail applications of some
of the appellants had been rejected is no ground
for directing their immediate arrest. In the very
nature of things, a person may move the Court on
mere apprehension that he may be arrested. The
Court may or may not grant anticipatory bail
depending upon the facts and circumstances of
the case and the material placed before the Court.
There may, however, be cases where the
application for grant of anticipatory bail may be
rejected and ultimately, after investigation, the
said person may not be put up for trial as no
material is disclosed against him in the course of
investigation. The High Court proceeded on the
assumption that since petitions for anticipatory
bail had been rejected, there was no option open
for the State but to arrest those persons. This
assumption, to our mind, is erroneous. A person
whose petition for grant of anticipatory bail has
been rejected may or may not be arrested by the
investigating officer depending upon the facts and
circumstances of the case, nature of the offence,
the background of the accused, the facts disclosed
in the course of investigation and other relevant
considerations.”
It is therefore clear from the aforesaid decisions
that the instant application is maintainable in law and
we cannot subscribe to the views expressed by Mr.
Ganguly in respect of the maintainability of the8
application under Section 438 of the Cr.P.C. The
objection is overruled.
We now proceed to decide the application on
merits.
Mr. Mukherjee appearing on behalf of the
petitioner contended that he has been falsely implicated
in connection with this case and long after registration
of the FIR a case under Section 376 of the IPC has been
made out by the defacto complainant only to feed fat her
grudge against the petitioner and to keep him behind
the bar.
Mr. Dutta, learned Additional Public Prosecutor
appearing on behalf of the State raised objection to the
prayer for anticipatory bail on the ground that the
defacto complainant has stated in the statement
recorded under Section 164 of the Cr.P.C. that she was
subjected to sexual assault by the petitioner.
We have carefully gone through the materials
collected in course of the investigation. The case under
reference was started on 25th October, 2016 with the
allegations that on 22nd October, 2016 the accused
persons insulted the defacto complainant with abusive
languages and thereafter the accused persons
surrendered before the learned magistrate and they
were accordingly granted bail. The statement of the
defacto complainant was recorded under Section 164 of
the Cr.P.C. on 27th November, 2016 and thereafter the
investigating officer prayed for adding Section 376 of the
IPC. On careful scrutiny of such statement of the
defacto complainant, the question of consent cannot be
ruled out. Moreover, the principal dispute between the
parties revolves round taking of loan and non-payment
of such loan amount etc.
In the context of the given facts and
circumstances of this case, we are of considered view
that custodial interrogation of the present petitioner is
not required for effective and meaningful investigation of
this case. Thus, we direct that in the event of arrest the
petitioner may be released on bail with two sureties of
Rs.10,000/- each on condition that the petitioner shall
not enter the jurisdiction of Amherst Street Police
Station for the coming six months or till date of filing of
the report in final form under Section 173(2) of the
Cr.P.C., whichever is earlier, and on conditions as
stipulated under Section 438(2) of the Cr.P.C.
The prayer for anticipatory bail is allowed and the
application, accordingly, stands disposed of.
Urgent photostat copy of this order be supplied to
the parties, if applied for, upon compliance with all
requisite formalities.
(Debi Prosad Dey, J.) (Dipankar Datta, J.)
Court dealt with Section 438 of the Cr.P.C. in Shri
Gurbaksh Singh Sibbia (supra) and has enunciated the
principle of law of anticipatory bail in paragraphs 40 to
44, which may be set out hereunder:-
“40. Section 438(1) of the Code lays down a
condition which has to be satisfied before
anticipatory bail can be granted. The applicant
must; show that he has “reason to believe” that he
may be arrested for a non-bailable offence. The
use of the expression “reason to believe” shows
that the belief that the applicant may be so
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 a vague apprehension that someone
is going to make an accusation against him, in
pursuance of which he may be arrested. The
grounds on which the belief of the applicant is
based that he may be arrested for a non-bailable
offence, must be capable of being examined by the
Court objectively, because it is then alone that the
court can determine whether the applicant has
reason to believe that he may be so arrested.
Section 438(1), therefore, cannot be invoked on
the basis of vague and general allegations, as if to
arm oneself in perpetuity against a possible
arrest. Otherwise, the number of applications for
anticipatory bail H will be as large as, at any rate,
the adult populace. Anticipatory bail is a device
to 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.
41. Secondly, if an application for anticipatory bail
made to the High Court or the Court of Session it
must apply its own mind to the question and
decide whether a case has been made out for
granting such relief. It cannot leave the question
for the decision of the Magistrate concerned Under
Section 437 of the Code, as and when an occasion
arises. Such a course will defeat the very object of
Section 438.
42. Thirdly, the filling of a First Information
Report is not a condition precedent to the exercise
of the power Under Section 438. The imminence
of a likely arrest founded on a reasonable belief
can be shown to exist even if an F.I.R. is not yet
filed.
43. Fourthly, anticipatory bail can be granted
even after an F.I.R. is filed, so long as the
applicant has not been arrested.
44. Fifthly, the provisions of Section 438 cannot
be invoked after the arrest of the accused. The
grant of “anticipatory bail” to an accused who is
under arrest involves a contradiction in terms, in
so far as the offence or offences for which he ‘is
arrested, are concerned. After arrest, the accused
must seek his remedy Under Section 437 or
Section 439 of the Code, if he wants to be released
on bail in respect of the offence or offences for
which he is arrested.”
The aforesaid decision is an authority for the
proposition that even filing of an FIR is not a condition
precedent to the exercise of power under Section 438 of
the Cr.P.C. The imminence of likely arrest founded on a
reasonable belief can be shown to exist, even if an F.I.R.
is not yet filed.
CALCUTTA HIGH COURT
In the matter of: An application for anticipatory bail
Under Section 438 of the Code of Criminal Procedure,
1973.
In the matter of: Siraj Roy
V
State.
Dated:22.09.2017
Apprehending arrest in connection with Amherst
Street Police Station FIR No. 343 of 2016 dated
25.10.2016 under sections 506/509/114 of the Indian
Penal Code (hereafter the IPC), with added Section 376
of the IPC, the petitioner has approached this Court for
a pre-arrest direction of bail under Section 438 of the
Code of Criminal Procedure (hereafter the Cr. P.C.).
The case of the prosecution in brief is that the
aforesaid FIR was registered on the basis of an
information given by the defacto complainant to the
effect that the accused persons being aided and abetted
by one another used abusive language towards the
defacto complainant and thereby they have interfered
with her modesty. Moreover, the petitioner including the
other accused persons have also threatened the defacto
complainant with dire consequences.2
In course of investigation, the defacto complainant
was produced before the learned magistrate and her
statement was recorded under Section 164 of the
Cr.P.C. In the meantime, all the accused persons
surrendered before the learned Court below and they
have been granted bail till 28th November, 2017.
During investigation, the investigating officer
submitted a prayer for adding Section 376 of the IPC
against Siraj Roy. Pursuant thereto, Section 376 of the
IPC was added against the petitioner and his bail was
cancelled. The learned magistrate issued warrant of
arrest against the petitioner.
Challenging the said order of the learned
magistrate, the criminal revisional jurisdiction of this
Court was invoked by filing CRR 1255 of 2017. A
learned Judge of this Court was pleased to reject the
said application holding inter-alia that the learned
magistrate was perfectly justified in cancelling the bail
of the petitioner and as follow up action, by issuing
warrant of arrest against the him. While passing such
order, the learned Judge granted liberty to the petitioner
to surrender before the Court of the learned Magistrate
and pray for regular bail in accordance with law, if so
advised.
In this backdrop of facts and circumstances, the
petitioner has filed this application.
Mr. Sandipan Ganguly, learned senior advocate
appearing on behalf of the defacto complainant has
raised the question of maintainability of the application
on the ground that the petitioner did not comply with
the direction given by the learned Judge in CRR 1255 of
2017 and that the petitioner cannot pray for
anticipatory bail since His Lordship specifically directed
the petitioner to surrender before the Court of the3
learned Magistrate. He further contended that the
scope of prayer for bail under Section 438 of the Cr.P.C.
may be restricted, which would be evident from the
decision reported in (2012) 8 SCC 730 (Lavesh Vs.
State). He vehemently contended that the learned
Judge has virtually restricted the scope of taking
recourse to the provision of Section 438 of the Cr.P.C. in
view of the specific direction for surrender before the
Court of the learned Magistrate.
Mr. Milan Kumar Mukherjee, learned senior
advocate appearing on behalf of the petitioner
contended that the question of maintainability in the
similar fact situation was dealt with by a coordinate
Bench of this Court in C.R.M. 11409 of 2015 (Sayantan
Chatterjee v. State) wherein Their Lordships held that
despite direction by the Single Bench to surrender
before the Court of the learned Magistrate, the prayer
for anticipatory bail is maintainable. He has further
relied on the decisions reported in AIR 1980 SC 1632
(Shri Gurbaksh Singh Sibbia and Ors. Vs. State of
Punjab), (2011) 1 SCC (Cri) 514 (Siddharam
Satlingappa Mhetre Vs. State of Maharashtra and
Others) and (2016) 1 SCC 152 (Bhadresh Bipinbhai
Sheth Vs. State of Gujarat and another) in support of
his contention. He candidly contended that the Hon’ble
Apex Court has specifically observed in Siddharam
Satlingappa Mhetre (supra) that the Hon’ble Court
cannot even give direction for surrender in the Court
below even after granting of anticipatory bail since such
order amounts to interference with the liberty of the
citizen. Also, in the similar fact situation the Hon’ble
Supreme Court, in Bhadresh Bipinbhai Sheth (supra)
has granted anticipatory bail setting aside the order of
the High Court. In the premises set forth above, he
submitted that no such direction can be given for
surrender in the Court below even after grant of
anticipatory bail, far to speak of rejection of such prayer
for anticipatory bail.
A Constitution Bench of the Hon’ble Supreme
Court dealt with Section 438 of the Cr.P.C. in Shri
Gurbaksh Singh Sibbia (supra) and has enunciated the
principle of law of anticipatory bail in paragraphs 40 to
44, which may be set out hereunder:-
“40. Section 438(1) of the Code lays down a
condition which has to be satisfied before
anticipatory bail can be granted. The applicant
must; show that he has “reason to believe” that he
may be arrested for a non-bailable offence. The
use of the expression “reason to believe” shows
that the belief that the applicant may be so
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 a vague apprehension that someone
is going to make an accusation against him, in
pursuance of which he may be arrested. The
grounds on which the belief of the applicant is
based that he may be arrested for a non-bailable
offence, must be capable of being examined by the
Court objectively, because it is then alone that the
court can determine whether the applicant has
reason to believe that he may be so arrested.
Section 438(1), therefore, cannot be invoked on
the basis of vague and general allegations, as if to
arm oneself in perpetuity against a possible
arrest. Otherwise, the number of applications for
anticipatory bail H will be as large as, at any rate,
the adult populace. Anticipatory bail is a device
to 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.
41. Secondly, if an application for anticipatory bail
made to the High Court or the Court of Session it
must apply its own mind to the question and
decide whether a case has been made out for
granting such relief. It cannot leave the question
for the decision of the Magistrate concerned Under
Section 437 of the Code, as and when an occasion
arises. Such a course will defeat the very object of
Section 438.
42. Thirdly, the filling of a First Information
Report is not a condition precedent to the exercise
of the power Under Section 438. The imminence
of a likely arrest founded on a reasonable belief
can be shown to exist even if an F.I.R. is not yet
filed.
43. Fourthly, anticipatory bail can be granted
even after an F.I.R. is filed, so long as the
applicant has not been arrested.
44. Fifthly, the provisions of Section 438 cannot
be invoked after the arrest of the accused. The
grant of “anticipatory bail” to an accused who is
under arrest involves a contradiction in terms, in
so far as the offence or offences for which he ‘is
arrested, are concerned. After arrest, the accused
must seek his remedy Under Section 437 or
Section 439 of the Code, if he wants to be released
on bail in respect of the offence or offences for
which he is arrested.”
The aforesaid decision is an authority for the
proposition that even filing of an FIR is not a condition
precedent to the exercise of power under Section 438 of
the Cr.P.C. The imminence of likely arrest founded on a
reasonable belief can be shown to exist, even if an F.I.R.
is not yet filed.
Admittedly, a warrant of arrest has been issued
against the petitioner and, therefore, the petitioner has
reasonable apprehension that he may be arrested by the
police in terms of the warrant of arrest issued by the
learned magistrate. In view of the ratio in Shri
Gurbaksh Singh Sibbia (Supra), the petitioner is thus
entitled to apply for anticipatory bail under Section 438
of the Cr.P.C.
In Siddharam Satlingappa Mhetre (supra), it has
been observed by the Apex Court in paragraphs 112 and
113 as follows:
“112. The validity of the restrictions imposed by
the Apex Court, namely, that the accused released
on anticipatory bail must submit himself to
custody and only thereafter can apply for regular
bail. This is contrary to the basic intention and
spirit of Section 438 Code of Criminal Procedure.
It is also contrary to Article 21 of the Constitution.
The test of fairness and reasonableness is implicit
under Article 21 of the Constitution of India.
Directing the accused to surrender to custody
after the limited period amounts to deprivation of
his personal liberty.
113. It is a settled legal position crystallized by the
Constitution Bench of this Court in Sibbia’s case
(supra) that the courts should not impose
restrictions on the ambit and scope of Section 438
Code of Criminal Procedure which are not
envisaged by the Legislature. The Court cannot
rewrite the provision of the statute in the garb of
interpreting it.”
Moreover, in the decision reported in (2003) 2
SCC 649 (M. C. Abraham and Anr. Vs. State of
Maharashtra and Ors.) it has been observed that even
rejection of anticipatory bail does not give the
jurisdiction to the Court to direct the petitioner to
surrender in the Court below. The last portion of
paragraph 15 may be quoted from the said decision for
proper appreciation:
“The mere fact that the bail applications of some
of the appellants had been rejected is no ground
for directing their immediate arrest. In the very
nature of things, a person may move the Court on
mere apprehension that he may be arrested. The
Court may or may not grant anticipatory bail
depending upon the facts and circumstances of
the case and the material placed before the Court.
There may, however, be cases where the
application for grant of anticipatory bail may be
rejected and ultimately, after investigation, the
said person may not be put up for trial as no
material is disclosed against him in the course of
investigation. The High Court proceeded on the
assumption that since petitions for anticipatory
bail had been rejected, there was no option open
for the State but to arrest those persons. This
assumption, to our mind, is erroneous. A person
whose petition for grant of anticipatory bail has
been rejected may or may not be arrested by the
investigating officer depending upon the facts and
circumstances of the case, nature of the offence,
the background of the accused, the facts disclosed
in the course of investigation and other relevant
considerations.”
It is therefore clear from the aforesaid decisions
that the instant application is maintainable in law and
we cannot subscribe to the views expressed by Mr.
Ganguly in respect of the maintainability of the8
application under Section 438 of the Cr.P.C. The
objection is overruled.
We now proceed to decide the application on
merits.
Mr. Mukherjee appearing on behalf of the
petitioner contended that he has been falsely implicated
in connection with this case and long after registration
of the FIR a case under Section 376 of the IPC has been
made out by the defacto complainant only to feed fat her
grudge against the petitioner and to keep him behind
the bar.
Mr. Dutta, learned Additional Public Prosecutor
appearing on behalf of the State raised objection to the
prayer for anticipatory bail on the ground that the
defacto complainant has stated in the statement
recorded under Section 164 of the Cr.P.C. that she was
subjected to sexual assault by the petitioner.
We have carefully gone through the materials
collected in course of the investigation. The case under
reference was started on 25th October, 2016 with the
allegations that on 22nd October, 2016 the accused
persons insulted the defacto complainant with abusive
languages and thereafter the accused persons
surrendered before the learned magistrate and they
were accordingly granted bail. The statement of the
defacto complainant was recorded under Section 164 of
the Cr.P.C. on 27th November, 2016 and thereafter the
investigating officer prayed for adding Section 376 of the
IPC. On careful scrutiny of such statement of the
defacto complainant, the question of consent cannot be
ruled out. Moreover, the principal dispute between the
parties revolves round taking of loan and non-payment
of such loan amount etc.
In the context of the given facts and
circumstances of this case, we are of considered view
that custodial interrogation of the present petitioner is
not required for effective and meaningful investigation of
this case. Thus, we direct that in the event of arrest the
petitioner may be released on bail with two sureties of
Rs.10,000/- each on condition that the petitioner shall
not enter the jurisdiction of Amherst Street Police
Station for the coming six months or till date of filing of
the report in final form under Section 173(2) of the
Cr.P.C., whichever is earlier, and on conditions as
stipulated under Section 438(2) of the Cr.P.C.
The prayer for anticipatory bail is allowed and the
application, accordingly, stands disposed of.
Urgent photostat copy of this order be supplied to
the parties, if applied for, upon compliance with all
requisite formalities.
(Debi Prosad Dey, J.) (Dipankar Datta, J.)
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