1. The petitioner was prosecuted for an offence punishable under Section 406 of the Indian Penal Code by the P.S.I., Police Station Parli-Vaijanath, District Beed, on May 27, 1981 on a report by complainant Hiralal Chunilal Sarda, a resident of Parli-Vaijanath, Taluka Ambejogai, District Beed, contending that he had entrusted about 163 tolas of gold ornaments on account of mutual intimate relationship for the purpose of safe custody to the petitioner. These ornaments belonged to the complainant's wife, son-in-law Narsingdas Maniyar from Gangakhed and relation Chandulal Nawandar from Govardhan. They were entrusted to the petitioner for safe custody on March 5, 1981 in the presence of two witnesses being Chandulal Nawandar and Khushalchand Gatagat, It was on May 15, 1981 that the complainant was called by the petitioner-accused and told that all the ornaments kept by him were stolen. Upon hearing this, it is alleged, complainant Hiralal told the petitioner-accused to make a report to the Police Station. According to the complainant, the petitioner-accused admitted the entrustment of the ornaments in the presence of Hiralal s/o Pakshiram, Baburao s/o Atoba Sangai, Dhondiram s/o Shrikisan and Murlidhar s/o Girdharilal as well as some other people from Parli Town. The petitioner-accused having refused to file a report of the alleged theft, complainant Hiralal filed a report alleging criminal breach of trust with the Police Station on the basis of which Crime No. 66 of 1981 was registered.
2. The petitioner-accused filed an application under Section 438 of the Criminal Procedure Code for an anticipatory bail before the Sessions Judge, Beed, vide Misc. Criminal Petition No. 92 of 1981 By his decision dt. June 3, 1981, the learned Additional Sessions Judge was pleased to reject the application of the petitioner-accused and to cancel the ad interim anticipatory bail which was granted to him earlier. In order to enable the petitioner to bring bail from the High Court the interim bail was extended up to June 8, 1981.
3. The petitioner-accused has alleged that there was enmity between him and the complainant on account of certain election disputes. It is an admitted position that upon search of the house of the petitioner, nothing incriminating was found. So far as the alleged enmity between the petitioner-accused and complainant Hiralal is concerned, the petitioner alleges as under :-
'There was an election of the Directors of Vaijanath Co-operative Bank about 3/4 years back. There was tussle between the petitioner and the complainant for the post of a director. Complainant at that time had tried to persuade the petitioner not to stand for the election. The petitioner refused to agree with him. It is from that time though the complainant won election by 5 votes, the said complainant has a grudge against the petitioner. And due to that and some other disputes and differences, the facts of which are not relevant at this stage, he has been using the police machinery and the process of criminal law of harass the petitioner.'
The petitioner has further alleged that there are three banks at Parli Vaijanath having locker facilities and complainant Hiralal himself has got a locker in Vaijanath Bank. The ornaments in question were worth more than Rs. 2 lacs and, according to the petitioner, it is unimaginable that complainant Hiralal having the locker facility with Vaijanath Bank would entrust the ornaments to him.
4. So far as the status of the petitioner-accused in the society is concerned, it is alleged that he was the Chairman of the Agricultural Produce Market Committee, Parli Vaijanath, for three years. At the time when the application for anticipatory bail was filed, he was occupying the position of a Special Executive Magistrate. He also happens to be the Member of the Executive Committee of the Marathwada Merchants and Traders Association, Bombay, and the Member of the Executive Committee of the Jawahar Education Society at Parli Vaijanath. He also happened to be the Secretary of the said Society for some time. According to the petitioner, it is because of his political and social activities that an attempt is being made to malign his status.
5. The main ground on which anticipatory bail has been refused to the petitioner by the learned Additional Sessions Judge appears to be that the custody of the petitioner is required for the purpose of making search and interrogation in connection with the investigation.
6. Mr. V. H. Parikh, Advocate, was heard for the complainant. He has filed an affidavit-in-reply. Apart from the prosecution allegations referred to above, he has stated in the said affidavit that about 20 persons contested the election of the co-operative society referred to by the petitioner and that there was no enmity between the petitioner and the complainant on account of the said election. Though it is true that the petitioner as well as complainant Hiralal did contest the said election, he has denied that they belong to rival groups. According to him, there is neither a political rivalry nor any attempt to wreak vengeance against the petitioner. Apart from two witnesses who are related to the complainant as well as the accused it is submitted that two independent persons were present when the petitioner-accused admitted the entrustment and, therefore, according to the complainant, the evidence of entrustment is an evidence which is liable to be accepted. The reason for entrustment as disclosed by the complainant in his affidavit, is that his son Rameshwar had given an application to the Income-tax Officer against him and, therefore, he thought it fit not to keep the ornaments with him. It is further submitted that in view of the close friendship between complainant Hiralal and petitioner Jagannath, the ornaments were entrusted without obtaining any entrustment note.
7. Two preliminary objections have been taken on behalf of the complainant with regard to the maintainability of this petition and the grant of anticipatory bail. Firstly, it is contended that, according to the affidavit filed on behalf of the State, the police custody of the accused is necessary in order to make the recovery of the property and it is submitted that the provisions of Section 167 of the Cr.P.C. relating to the police custody of the accused for the purpose of investigation must prevail over the provisions of anticipatory bail contained in Section 438 of the Cr.P.C. Reliance for this proposition was placed on a Full Bench decision of the Punjab and Haryana High Court in Gurbaksh Singh v. State of Punjab . This point need not detain us in view of the decision of the Supreme Court in the same case of Gurbaksh Singh v. State of Punjab : 1980CriLJ1125 . The Full Bench of the Punjab and Haryana High Court held that the provisions of Section 167 of the Cr.P.C. must prevail over the provisions of anticipatory bail contained in Section 438 of the Code. However, this reasoning of the Full Bench did not find favour with their Lordships of the Supreme Court, who in terms have rejected such a contention in Para 19 of the judgment. Mr. Parikh on behalf of the complainant had also cited a judgment of the Karnataka High Court in Mahanthagouda v. State of Karnataka following the judgment of the Punjab and Haryana High Court but I do not think it necessary to refer to it in view of the Supreme Court decision quoted above. It is thus clear that anticipatory bail should not be refused merely because prosecution claim that they want the accused in police custody for the purpose of investigation. The genuineness of the alleged need for police custody has to be examined and it must be balanced against the duty of Courts to uphold the dignity of every man and to vigilantly guard his right to liberty without jeopardizing the State objective of maintenance of law and order. The second preliminary objection raised on behalf of the complainant was based on the wording of S. 438 of the Cr.P.C. Section 438(1) provides :-
'438(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session ......'
It was submitted that the words 'High Court or the Court of Session' mean that an application for anticipatory bail can lie in either Court and not both the Courts. Reliance was placed on the Division Bench decision of the Calcutta High Court in Amiya Kumar v. State of West Bengal . The view taken in that case is that the word 'or' used in the opening part of Section 438 of the Cr.P.C. is used in an 'alternative sense,' meaning thereby that the applicant has a choice of one out of the two forums. According to the learned Judges of the Division Bench, similar word 'or' used in Sections 439 and 397 of the Cr.P.C. is used in 'non-alternative sense' and it is equivalent to 'and' because these two sections speak of power to be exercised and do not refer to the forum where an application is to be filed. With greatest respect. I am unable to persuade myself to agree to the reasoning of the Division Bench of the Calcutta High Court in the case of Amiya Kumar v. State of West Bengal. Under the old Cr.P.C. of 1898, powers of revision under Section 435 and power to grant bail under Section 498 of the old Code were concurrent and exercisable by both Courts, though as a matter of practice and propriety, it was insisted that the lower of the two Courts should be approached first. While enacting similar, provisions in the Cr.P.C. 1973, Parliament thought that the revisional jurisdiction should not be concurrent and, therefore, a provision was made in Section 397(3) of the new Code that if one Court was moved in its revisional jurisdiction, the other Court shall not entertain similar application. Nothing prevented Parliament from putting a similar bar in the provisions relating to bail - either pre-arrest or post-arrest and this indicates that what was intended was exercise of concurrent jurisdiction by Court of Session and High Court in the matter of grant of bail. Though it is reported at the Bar that there is no decision of this Court on the point, I find that a Full Bench of the Allahabad High Court in the case of Onkar Nath v. State, , has held that the jurisdiction under Section 438 of the Cr.P.C. vested in the Sessions Court and the High Court are concurrent, To similar effect is the decision of a Division Bench of the Punjab and Haryana High Court in the case of Chhajju Ram v. State of Haryana . It has been observed in that case that the petitioner should ordinarily first move the Court of Session for grant of an anticipatory bail and after exhausting that remedy, he should approach the High Court for grant of an anticipatory bail.
8. The two preliminary objections of the complainant having thus failed, it is necessary to decide the question of the grant of anticipatory bail on the merits of this case. It was strongly urged on behalf of complainant Hiralal that the allegations relating to political enmity arising on account of the co-operative society elections are extremely vague and no case of political enmity has been established. It was submitted that in the absence of evidence relating to the alleged political enmity, the petitioner was not entitled to anticipatory bail which was a special remedy granted sparingly in those cases in which a person is likely to be charged falsely out of political enmity. I do not think that an applicant is not entitled to anticipatory bail in those cases in which political or other enmity is not established. The observations made by the Law Commission in its 41st Report, while considering the advisability of granting anticipatory bail, may be referred to for this purpose with some advantage, The Law Commission says :-
'The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.'
It is thus clear that cases in which falsity could not be established were also contemplated by the Law Commission as cases in which anticipatory bail may be granted provided, of course, there was no possibility of the accused absconding or misusing his liberty. The basic rule in all these matters as succinctly put by Justice Krishna Iyer in the case of State of Rajasthan v. Balchand, : 1978CriLJ195 is 'bail' and not 'jail'. The relevant observations are as under :-
'The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the Court.'
It is true that these observations concern grant of bail post-arrest bail and not pre-arrest bail, but ultimately the principle to be applicable in the grant of bail prior to arrest as well as after arrest is substantially the same.
9. Broadly stated, the two basic principles which must be kept in view while considering the question of grant of anticipatory bail are (i) that there should be no likelihood of the accused absconding and (ii) that there should be no likelihood of the accused misusing his liberty. For ascertaining the first part, the test, as laid down by the Supreme Court in the case of Hussainara Khatoon v. State of Bihar, : 1979CriLJ1036 is to see as to whether the accused has his roots in the community. In that case, the Supreme Court has indicated about eight factors for finding out as to whether an accused person has got roots in the community. They are as under :-
'1. the length of his residence in the community.
2. his employment status, history and his financial condition.
3. his family ties and relationships.
4. his reputation, character and monetary condition.
5. his prior criminal record including any record or prior release on recognizance or on bail.
6. the identity of responsible members of the community who would vouch for his reliability.
7. the nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non-appearance, and
8. any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear.'
Applying these tests, it is apparent that there is absolutely no likelihood of the accused absconding in the present case. The next question is as to whether the accused, if released on bail, is likely to misuse his liberty. The paramount consideration in that behalf are, to quote Krishna Iyer, J. in the Supreme Court decision in Gudikanti Narasimhulu v. Public Prosecutor, A.P. : 1978CriLJ502 :-
'Whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being'.
The previous history of the petitioner can be taken into account for ascertaining whether he is likely to repeat similar offences. Likelihood of tampering of prosecution evidence has also to be considered, Status of the accused and the vulnerability of prosecution witnesses are the two factors which go into decision of this question.
10. Apart from the above two basic principles, which have to be kept in view while granting any bail either post-arrest or pre-arrest, Courts have also to take into account (i) the nature and seriousness of the accusations. (ii) the nature of the prosecution evidence, (iii) the severity of the likely punishment in case the prosecution succeeds and (iv) the status of the accused. While examining the nature of prosecution evidence for this purpose, detailed examination of evidence and elaborate documentation should be avoided. Broad circumspection is enough.
11. Apart from the fact that the prosecution story in the present case is such that it is not easily acceptable, it can safely be said that the prosecution mainly relies upon the extra-judicia; confession of the accused relating to the admission of entrustment of ornaments in the presence of four witnesses. It is an admitted position that the evidence of extra-judicial confession and particularly oral evidence of extra-judicial confession is a weak type of evidence. Since this is a matter of grant of anticipatory bail. I do not propose to go into the details of the prosecution evidence, though both the sides advanced serious arguments on the subject. I feel that looking to the nature of the accusations and the evidence as well as the status of the accused, this is not a case in which anticipatory bail should be refused.
12. A request was made on behalf of the complainant that in case this Court was inclined to grant anticipatory bail to the accused, a direction should be given that the accused shall be liable to be arrested if the prosecution in desirous of recording evidence of discovery. Instead of doing that, it would be enough to observe here that if such a contingency arises and if the prosecution feels that the evidence of discovery may not be legal evidence in the absence of police custody of the accused, the prosecution shall be at liberty to move this Court for a further direction in the matter of bail or custody in this behalf.
13. In the result the order of the Additional Sessions Judge. Beed, in Misc. Criminal Petition No. 92 of 1981 passed on June 3, 1981, cancelling the ad interim bail already granted, is hereby set aside. The petitioner-accused to continue on ad interim anticipatory bail already granted on furnishing fresh bail-bond within a week of the receipt of the record by the lower Court.
14. At this stage, a request on behalf of the complainant was made for grant of leave for going to the Supreme Court. The leave is rejected.
15. Application allowed.