P.K. Mohanti, J.
1. The petitioners who are goldsmiths of Puri town are being prosecuted for offences under Sections 147, 353, 841, 225 and 414, Indian Penal Code. They pray for anticipatory bail which is opposed by the learned Standing Counsel for the State. The matter has come up before us on a reference made by our learned brother Panda, J.
2. The petitioners aver that on the allegations that when the police officers had gone to search the shop of one Dhruba Charan Sahu of Puri town and were making enquiries at another shop, Dhruba Charan Sahu was found slipping away with a bag suspected to contain stolen articles. The police officials rushed to the shop of Dhruba Charan Sahu and asked him to snow the bag. Upon his refusal and raising hulla, about 100 people including the petitioners gather-ed at the place and it is alleged that the said persons prevented the police from discharging their duties. During the commotion, it is alleged, Dhruba Charan Sahu passed on the bag to some other person and it could not be seized. On the aforesaid allegations G. R. Case No. 441 of 1975 has been started in the court of the Sub-divisional Judicial Magistrate, Puri for commission of offences under Sections 147, 353, 341, 225 and 414, I, P. C. The offence under Section 414, I. P. C, is non-bailable, Petitioners contend that the said Dhruba Charan Sahu was mercilessly assaulted by the police for which a complaint case has been filed. They apprehend that they will be arrested and by such arrest they will be humiliated and harassed by the police. They moved the learned Sessions Judge of Puri for grant of anticipatory bail, but he rejected the prayer by order dated 8-4-1975,
3. The question referred to us is : What are the guidelines in consideration of which anticipatory bail should be granted?
4. The concept of 'bail' means release of a person from custody or prison and delivery into the hands of sureties who undertakes to produce him in court upon an appointed day. Wharton's Law Lexicon explains 'bail' as 'to set at liberty a person arrested or imprisoned, on security being taken for his appearance'. Therefore, the concept of bail implies on arrest or a previous restraint. 'Anticipatory bail' means bail in anticipation of arrest. 'Arrest' consists of the actual seizure or touching of a person's body with a view to his detention. (Vide Halsbury's Laws of England, Third Edition, Volume X, Page 342).
5. Prior the enforcement of the Code of Criminal Procedure, 1973 there was a conflict of judicial opinion about the power of the court to grant anticipatory bail. The consensus of judicial opinion was in favour of the view that bail cannot be granted to a person who has not been arrested and who has not surrendered to any custody under an order of arrest. It is unnecessary to discuss those authorities. The Parliament has now conferred on the High Court and the court of Session a wholly new and independent power for granting anticipatory bail. The relevant provisions of the Criminal P. C. 1973 are quoted below:
Section 438.- Direction for giant 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-bailable 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.
(2) When the High Court or the Court of Session makes a direction under Sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-
(i) a condition that the person shall make himself available, for interrogation by a police officer as and, when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under Sub-section (3) of Section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under Sub-section (1).
6. The object of making such a provision would appear from the legislative history. The law Commission in its 41st Report considered the advisability of granting anticipatory bail and observed as follows:
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 several 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.
Clause 447 of the Code of Criminal Procedure Bill, 1970 provided for anticipatory bail. The framers of the Code observed:
As recommended by the Commission, a new provision is being made enabling the Superior courts to grant anticipatory bail, i. e, a direction to release a person on bail issued even before the person is arrested. With a view to avoid the possibility of the person hampering the investigation, special provision is being made that the Court granting anticipatory bail may impose such conditions as it thinks fit. These conditions may be that a person shall make himself available to the investigating Officer as and when required and shall not do anything to hamper investigation.
The Joint Committee made the following observations:
Clause 438 (Original Clause 447),- The Committee is of the opinion that certain specific conditions for the grant of anticipatory bail should be laid down in the clause itself for being complied with, before the anticipatory bail is granted. The clause has been amended accordingly.
Section 438 embodies the recommendations of the Joint Committee.
7. It is obvious that the exercise of the power to grant anticipatory bail is confined to cases involving non-bailable offences only. The power cannot be exercised by any court other than the High Court or the Court of Session.
8. Normally the courts apply the following tests while considering applications for bail in case of non-bailable offences:
(a) nature and seriousness of the accusation,
(b) nature of the evidence in support of the accusation,
(c) severity of the punishment which the conviction will entail.
(d) the character, behaviour and standing of the accused,
(e) a reasonable possibility of the presence of the accused not being secured at the trial,
(f) the danger of the alleged offence being continued or repeated,
(g) the danger of the witnesses being tampered with,
(h) the larger interest of the public or the State, and similar other considerations.
These tests are to be applied by the Court while considering an application for anticipatory bail. In addition, the court must be satisfied that the arrest and detention of the petitioner would be not from motives of furthering the ends of justice in relation to the case, but from some ulterior motive, and with the object of injuring the petitioner.
9. The exercise of the power to grant anticipatory bail should be restricted to exceptional cases, whose facts satisfy the above conditions. Ordinarily, the Judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. The power to interfere with the discretion of the police at the very earliest stages of an investigation would, therefore, require to be exercised with utmost care. Merely because it is alleged that the petitioner apprehends arrest on a false accusation and that such arrest will be a cause of disgrace and dishonour to him, the court will not be justified in granting anticipatory bail. The court has both a right and a duty to satisfy itself that the apprehension is reasonable. If the court chooses to accept the allegations made in the petition without applying its mind and examining the materials available with the police, the court will be failing to discharge its duty. In order to ensure that the provisions of Section 438, Criminal P. C. are not put to abuse at the instance of unscrupulous petitioners, notice of the application for anticipatory bail should be given to the Public Prosecutor, though that section in terms does not say so.
10. Our conclusions may now be summarised:
(a) Anticipatory bail can be granted only by the High Court or a Court of Session.
(b) The exercise of the power to grant anticipatory bail is confined only to cases involving non-bailable offences.
(c) Anticipatory bail will be granted on the same considerations on which bail is granted under Section 437, Criminal P. C. to a person accused of a non-bailable offence. In addition, the court must be satisfied that if anticipatory bail is refused, an irreparable wrong or injustice might result which it is desirable to avoid.
(d) Exercise of the power under Section 438, Criminal P, C. should be restricted to exceptional cases, whose facts satisfy the above conditions.
(e) Notice of the application for anticipatory bail should be given to the public Prosecutor.
(f) The Court should apply its mind to the allegations made in the petition and examine the materials available with the police before disposing of an application for anticipatory bail.
(g) With a view to avoid the possibility of the person hampering the investigation, the court granting anticipatory bail may impose such conditions as it thinks fit.
11. According to the petitioners the prosecution has not been started in good faith and that they apprehend that they would be harassed and humiliated in the event of their arrest as a complaint against the police has been filed regarding the same occurrence. Out of the offences alleged to have been committed by the petitioners, only the offence under Section 414, I. P. C. is non-bailable. Having heard the learned Standing counsel for the State and having gone through the materials so far collected by the prosecution, we are satisfied that the case is such that bail would have been granted to the petitioners after arrest. It is not suggested by the learned Standing Counsel that the petitioners would escape if released on bail. On a careful consideration of the facts and circumstances of the case in the light of the principles enunciated above, we are inclined to grant the prayer for anticipatory bail.
12. We allow the petition and direct that in the event of their arrest, the petitioners shall be released on executing a bond for Rs. 2,000/- two thousand each with two sureties each for the like amount to the satisfaction of the Sub-divisional Judicial Magistrate, Puri subject to the condition that they should make themselves available for interrogation by the investigating police officer as and when required and shall not do anything to hamper the investigation.
G.K. Misra, C.J.
13. I agree.