1. The petitioner, a Medical Practitioner residing in Bangalore City, has filed this application under S. 438 of Criminal P.C., 1973 (the Code) requesting the Court to release him on anticipatory bail.
2. His apprehension is that Cannanore Town Police in Kerala State, having registered a case in their Crime No. 185 of 1983 against him for an offence under S. 420 of the Penal Code on the complaint of one K. P. B. C. Menon, Branch Manager, State Bank of India, Cannanore, were likely to arrest him and, therefore, he be released on anticipatory bail. Along with his application he has produced copies of the complaint and the F.I.R. sent by the police to the Jurisdictional Magistrate (Judicial First Class Magistrate, Cannanore). The complaint of Mr. Menon is that Dr. Naidu, who had obtained from him a sum of Rs. 25,000/- on the assurance that he would secure a house-site to him in Bangalore City, had cheated him in the matter and, therefore, was liable to be proceeded against.
3. The learned State Public Prosecutor raised a preliminary objection to consider the petitioner's claim on merits. According to him, this Court having no jurisdiction over Cannanore Police, it cannot grant anticipatory bail so as to operate on them. He argues, if at all, it is only the Jurisdictional Sessions Judge and the High Court of Kerala who are competent to consider the claim of the petitioner in the matter.
4. On the other hand, counsel for the petitioner, placing reliance on a few decisions of this Court (Cr.P. No. 656 of 1982, D/- 30-8-1982 and Cr.P. No. 324 of 1983, D/- 28-2-1983), and also that of Delhi and Calcutta High Courts, submitted that, since the petitioner is a resident within the jurisdiction of this Court and also since he apprehends arrest here this Court does have jurisdiction to grant the relief sought for.
5. Sub-section (1) of S. 438 of the Code, which enables the Courts to grant anticipatory bail, reads thus :
'438. Direction for grant of bail to person apprehending arrest -
(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bail able offence, he may apply to the High Court or the Court of Session for a direction under this Section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.'
Any person apprehending arrest may apply to the High Court or the Court of Session for a direction under that section.
6. While examining the preliminary objection raised by the learned State Public Prosecutor we have to bear in mind the opening words of sub-section (1) of S. 438. The section provides relief to the person 'apprehending arrest'. The Court may not have jurisdiction to deal with the offence.
But as observed in Gurbaksh Singh Sibbia v. State of Punjab : 1980CriLJ1125 anticipatory bail order becomes effective 'at the very moment of arrest' i.e. the place where the police or the other authority proposing to arrest the person lay their hands on him. As further observed in that case the 'direction under S. 438 is intended to confer conditional immunity from this touch or confinement'.
7. Section 48 of the Code says that 'a police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India'.
8. The question is, cannot a person thus pursued by the police of another State seek anticipatory bail under S. 438 in the High Court or the Court of Session within whose jurisdiction he resides
9. I am unable to agree with the contention of the learned State Public Prosecutor that the Court, exercising its powers under S. 438, should be the one having powers to deal with that offence. It is true that courts take cognizance of offences and not persons. But that is entirely a different matter. And that approach cannot hold good in considering the claim for anticipatory bail of a person apprehending arrest.
10. To meet with what situations and to avoid what consequences this provision has been brought on the statute book is also considered in Gurbaksh Singh's case (1980 Cri LJ 1125) (SC) (supra). I may usefully extract what the learned Judge Chandrachud, C.J., has stated in Para 8 :
'But the crimes, the criminals and even the complainants can occasionally possess extraordinary features. When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism. The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation. That can even take the form of the parading of a respectable person in hand-cuffs, apparently on way to a court of justice. The foul deed is done when an adversary, is exposed to social ridicule and boloney, no matter when and whether a conviction is secured or is at all possible. It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973'.
11. Also a beneficial provision like S. 438 of the Code is required to be considered in favour of the citizen. There is nothing in the provision suggesting that it is only the High Court or the Court of Session, within whose jurisdiction the case is registered, that can grant bail. The view that any person apprehending arrest, in the circumstances referred to in Section 438, can seek bail in the court, within whose jurisdiction he ordinarily resides, cannot be said to be opposed to the principle underlying this provision. I am also of the view that this view accords with justice and convenience.
12. The Calcutta High Court has consistently taken the same view. After considering all the previous decisions of the Court on this question a Division Bench of that Court in B. R. Sinha v. State (1982 Cri LJ 61) (Cal) has observed as follows :
'Considering the provisions laid down in S. 438 of the Code and the principles of law with regard to anticipatory bail explained by their Lordships in Gurubaksh Singh's case (1980 Cri LJ 1125) (SC) and also considering the view taken by at least three Division Benches to the case referred to above, we are of the opinion that this Court has jurisdiction to entertain application for anticipatory bail of a petitioner who resides within the jurisdiction of the Court, though he apprehends arrest in connection with a case which has been started outside the jurisdiction of this Court.'
13. The Delhi High Court has also taken the same view (see Pritam singh v. State of Punjab, 1981 Cri LJ NOC 159).
14. For the reasons mentioned above there is no merit in the preliminary objection raised by the learned State Public Prosecutor for the maintainability of this application.
15. Now, to consider the petitioner's case on merits. While examining this case on merits we have to keep in view the various aspects highlighted by the Supreme Court in Gurbaksh Singh's case (1980 Cri LJ 1125) (supra). As stated therein, though an order of bail under S. 438 of the Code can be granted without notice to the Public Prosecutor concerned, notice should issue to him forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The learned State Public Prosecutor, in the instant case, was right in his submission that without instructions it may not be possible for the Public Prosecutor, not in the know of things, to make his submissions in the matter. And to direct the local Public prosecutor to obtain instructions from the investigating authority concerned stationed far away in another State may not, in many cases, serve any useful purpose and may put all concerned in some cases, to great inconvenience also. In order to avoid these complications I feel that an anticipatory bail order of limited duration can be made in favour of the petitioner with a direction to him to approach the Court concerned in Kerala State for an appropriate order of bail.
16. In the instant case, as already stated, the case registered by Cannanore police against the petitioner is for an offence under S. 420, I.P.C. The petitioner, who is a Medical Practitioner here, is likely to suffer a great deal of hardship if he is arrested by the Cannanore police and taken to their custody. His sudden departure may dislocate his work. Taking all these aspects into consideration I am inclined to concede his request.
17. The petitioner does not appear to have approached the Sessions Judge, Bangalore, who also, as stated above, could have examined the claim of the petitioner on merits. Petitioner's counsel submitted that he was of the view that, in a case like this where the apprehended arrest was by the police of the other State, it was only this Court that had jurisdiction to grant anticipatory bail. That is not so and even the Sessions Judge, within whose jurisdiction the person resides, can entertain such an application as stated above.
18. However, in the circumstances of the case, it may not be necessary to direct him to approach the Sessions Judge.
19. Accordingly and for the reasons stated above this petition is allowed. In the event of the Cannanore police of Kerala State arresting the petitioner in connection with their Crime No. 185/83 they are hereby directed to release him on bail on his executing a bond in a sum of Rs. 3,000/- with a surety in a like sum to their satisfaction. The petitioner is directed to approach the appropriate Court in Kerala State within 20 days from the date of his arrest by the Cannanore police. In case he makes any such application within the time referred to above this order of anticipatory bail will be in force till such time as that court passes an order. In case the petitioner does not make any such application this order ceases to be in force thereafter i.e. from the 21st day of his arrest. He is also directed to appear before the Cannanore police if and when he is required in connection with this case. He will not interfere with their investigation and he will also not leave this country without the prior permission of this Court as long as this order remains in force.
20. Order accordingly.