Harbans Lal, J.
1. This is a petition Under Section 438, Criminal P. C, for the grant of Anticipatory Bail to Shri Bansi Lai, Member Parliament, New Delhi, and his son Surrender Singh, M.L.A., Haryana. While issuing notice in this petition, interim bail was granted by Sharma, J. on 3rd August, 1977.
2. A case was registered Under Section 161, IPC and Section 5(2) of the Prevention of Corruption Act on 1-8-1977 in Police Station Sadar, Bhiwani, at 6-30 P.M. on the statement of Shri Randhir Singh Yadav, Deputy Superintendent of Police, Bhiwani, vide F.I.R. No. 106. According to the allegations in this F.I.R., Shri Bansi Lai petitioner abused his position as Chief Minister of Haryana from May 1966 to November 1975, and then as Defence Minister of India up-till 1977. The details are given of the lands purchased by him from time to time in the names of his sons Ranbir Singh and Surrender Singh, and his daughters Sunita, Legha and Saroj in different villages in Bhiwani District from 15-5-1975 t0 3-3-1976. In all these transactions, taken together, an amount of Rs. 3,86,091/- was alleged to have been spent on the purchase of land and Rs. 39,560/- on registration and stamp duty. It was further alleged that Shri Bansi Lai purchased this land at 50% of the prevailing price at that time. Shri Bansi Lai as Chief Minister is also alleged to have encouraged a number of corrupt officers and promoted them after changing the service rules. Undue benefit was thus alleged to have been given to a number of persons by unfair means, and in consequence of that Shri Bansi Lai is alleged to have earned a lot of money besides obtaining foreign goods. One Shri Amir Chand Singla, it is alleged, hired a Kothi in Chandigarh and furnished the same with costly furniture and other articles, which was used by the daughter and son-in-law of Shri Bansi Lai freely. A servant was also provided to them and an amount of Rs. 8,000 per mensem was given to them by the said Shri Amir Chand Singla. Details of other benefits and facilities made available to them in the form of car and telephone connection etc., are also given. It is further alleged that Shri Bansi Lai built one house at Bhiwani and one house at Hissar in the name of his son-in-law and daughters and also in his own name on which about Rs. 6 or 7 lacs were spent. Towards the end in the F.I.R., a general allegation was made that Shri Bansi Lai purchased cars and other vehicles in his name and in the names of his family members besides purchasing some vehicles under other names, and in this way he collected or purchased moveable and immoveable property worth lacs and foreign goods without paying any custom duty thereon, it wag further alleged that Shri Bansi Lai had several bank accounts in his name and in the names of his family members.
3. During the arguments it wag disclosed by the learned Advocate-General that search had been made on 4-8-1977, on the basis of search warrants, in the houses of Shri Bansi Lai both at Delhi and Bhiwani. Copy of the list of articles recovered from his residence at Bhiwani was also furnished. Another list of articles was also furnished which were alleged to have been recovered as a result of search conducted in the house of one Shri Amir Chand Singla at Delhi, which, according to the learned Advocate-General, belonged to Shri Bansi Lai.
4. According to the averments in the petition, after the elections the present ruling party (reference obviously seems to the Janta Party, though its name is not specifically mentioned) had started a witch-hunt in the name of rooting out corruption from the public life and administration and had embarked upon victimisation of important persons in the previous regime by making all-out efforts to fabricate cases against them to damage their political image amd assassinate their character. Ch. Devi Lai, the present Chief Minister of Haryana, is alleged to be inimical to Shri Bansi Lai peti- tioner. Reference in thig connection has been made to Civil Wrti Petition No. 199 of 1971 filed by Ch. Devi Lai in the High Court in which it was alleged that Shri Bansi Lai was inimical to him. Ch. Devi Lai was arrested three times at Sirsa in Haryana along with Dr. Mangal Sain during the regime of Shri Bansi Lai as Chief Minister and was also detained under the Maintenance of Internal Security Act. Allegations have also been made to show that Shri Bansi Lai as Chief Minister, Haryana, had passed certain orders regarding the recording of annual confidential reports of the Superintendent of Police by the Deputy Commissioners, which was resented by Chi. Dharam Singh, I.P.S. who had been transferred i;o Srinagar as Commandant of H.A.P., Battalion No. 6. Consequently Writ Petition No. 1186 of 1975 was filed by him in which allegations of malice were levelled against Shri Bansi Lai petitioner. It is alleged in para 22 of the petition that on 31-7-1977 Shri Dharam Singh, D.I.G., C.I.D., conducted a raid on a house in Anand Niketan, South Delhi, allegedly belonging to Shri Amir Chand Singla where property worth about Rs. 10 lacs was recovered from a locked room and that it was given out that this property belonged to the petitioners and other members of their family. It was further stated that after this search Ch. Devi Lai Chief Minister is reported to have remarked whether the earthen pitcher full of gold guineas had also been recovered or not.
5. Quite elaborate arguments have been addressed on both sides. According to Mr. Thapar, the learned counsel for the petitioners, the case has been registered against the petitioners in order to humiliate and harass them out of political considerations and that there is no truth in the allegations in the F.I.R. The purpose, it is alleged, is clearly to put the petitioners behind the bars and to resort to undesirable and unwarranted treatment under the garb of interrogation and investigation. It is further contended that searches of the houses belonging to the petitioners have already been made and if any transactions in regard to the purchase of land and houses have been entered into by the petitioners in their own names or in the names of their relations, the same are all matters of documentary record for which no such investigation is needed which cannot be made without keeping the petitioners in custody. It was also stressed that regarding all these transactions and purchases, the income-tax returns filed by the petitioners contained the requisite satisfactory explanation. On the other hand Mr. S. C. Mohanta, the learned Advocate-General, laid great stress on the fact that property worth crores of rupees had been acquired by Shri Bansi Lai by wrongful end illegal means, abusing his official position as Chief Minister, Haryana, as well as the Defence Minister of India. Some information had been collected as a result of the searches already made, but more information has still to be gathered and the same is not possible unless the petitioners are subjected to adequate interrogation, which is a specialised art during the period when they are in custody and are not in a position to have contacts with the outside world or get instructions from their legal advisers. It was further stressed that after the order of Anticipatory Bail had been passed by Sharma, J., neither of the petitioners had co-operated with the investigating agency inasmuch as they did not comply with the warrants issued Under Section 160, Criminal P. C, and even did not go to the Police Station, Bhiwani to make themselves available for interrogation. In this connection reference was made to the report of Hari Ram, Sub-Inspector of Police, who went to the house of Shri Bansi Lai at Delhi on 2nd August, 1977 and found him absent from the house. Consequently he recorded the statement of an employee of Shri Bansi Lai present in the house, named Parbhati, and also submitted his own report. Reference was also made to the telegrams sent t0 the petitioners on 3-8-1977, warrants issued Under Section 160, Cr.PC against Shri Surrender Singh petitioner on 4-8-1977 and against Shri Bansi Lai petitioner on 9-8-1977 for the purpose of securing their presence in the Police Station at Bhiwani. According to the report entered in the Roznamcha on 4-8-1977 and the statement in writing made by Shri Surrender Singh petitioner, the latter did not go to the police Station at Bhiwani because it was raining heavily and there was no clear passage to Bhiwani due to damage to the roads at several places. According to the report in the Roznamcha, however, the roads were not much damaged. According to the report of Inspector Banarsi Lai, dated 9-8-1977 received on the telephone, Shri Bansi Lai, when contacted, expressed his helplessness to go to Bhiwani at that time as little time was left.
6. According to Mr. Thapar, the learned counsel for the petitioners, after the issuance of the order of Sharma, J., regarding Anticipatory Bail, Shri Surrender Singh petitioner was contacted only on 4-8-1977 and he did not refuse to go and only expressed his helplessness because the roads were damaged, that he showed his willingness to go as soon as the roads were in proper conditions, and that no effort was made to contact him subsequently. So far as Shri Bansi Lai petitioner is concerned, he was contacted on 9-8-1977, in the evening at Delhi, when he did not refuse to accompany the police, but only said that at that time he had little time. Before and after 9-8-1977 he was not contacted by the Investigating Agency to make himself available for the purpose of interrogation. It was further contended vehemently that the house of Shri Bansi Lai at Delhi was searched on 4-8-1977 for a pretty long time when both the petitioners were present in the house. At that time the Superintendent of Police (vigilance) was also there, and that if during the course of search any interrogation was needed, the same could be done at that time. Consequently it was asserted that the story regarding the efforts to get the co-operation of the petitioners for the purpose of interrogation is only a made-up affair with a view to creat an impression that the petitioners were not co-operating with the Investigating Agency. According to the learned counsel, both the petitioners had never refused to co-operate and were always willing to make themselves available for interrogation,
7. There was no provision for the grant of anticipatory bail in the old Criminal Procedure Code of 1898 (hereinafter to be called the old Code). There was conflict of decisions amongst different High Courts about the existence of such a power in the Courts. The Law Commission went exhaustively into the various provisions of the Old Code and made a recommendation on the basis of which the new Criminal Procedure Code, 1973 (hereinafter to be called the New Code) was enforced. With regard to the introduction of the provision for grant of anticipatory bail, the Law Commission in its Forty-first Report pointed out as under;-
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 datained 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.
8. As a result of this recommendation, the New Code now embodies the following provision regarding grant of anticipatory bail (Section 438):-
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 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.
In Balchand v. State of M. P. AIR 1977 SC 366: (1977 Cri LJ 225) their Lordships of the Supreme Court while discussing the import of this new provision observed as under (at p. 369 of AIR) : at p. 227 of Cri LJ:
Now this power of granting 'anticipatory bail' is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or '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' that such power is to be exercised. And this power being rather of an unusual nature, it is entrusted only to the higher echelons of judicial service, namely, a Court of Session and the High Court. It is a power exer-cisable in case of an anticipated accusation of non-bailable offence and there is no limitation as to the category of non-bailable offence in respect of which the power can be exercised by the appropriate court.
According to the ratio of this decision, the possibility of false implication of an accused, the chances of the accused misusing his liberty, if released on bail, and the possibility of the accused absconding and thus making himself not available for the purpose of investigation, are some of the circumstances and factors which ought to be borne in mind by the Court when called upon to determine the question of grant or refusal of anticipatory bail.
9. In the present case Shri Bansi Lai petitioner has undisputably held a high position as the Chief Minister of a State and subsequently as the Defence Minister of the country for a considerable time. Even now he is a Member of Parliament. Shri Surrender Singh petitioner No. 2 is his son and he is a Member of the Haryana Legislative Assembly. The allegations in the petition that Ch. Devi Lai, the present Chief Minister of Haryana was arrested and sent to jail more than once during the regime of petitioner No. 1 as Chief Minister and was also detained under the Maintenance of Internal Security Act were not denied by the learned Advocate-General. Even this was not denied that Ch. Devi Lai considered Shri Bansi Lai petitioner as Chief Minister inimical to him. The allegation regarding Shri Dha-ram Singh D.I.G, C.I.D. reflecting on the relations being strained between him and petitioner No, 1 has also not been refuted. During the arguments it was not even remotely alleged that there was any possibility of either of the petitioners absconding. The learned Advocate-General, however, laid emphasis on two factors. Firstly, that according to the information with the Government, the petitioners had amassed enormous wealth running into crores of rupees in the form of move-able and immoveable property and, therefore, their custody was essential for eliciting full information from them, and secondly, that both the petitioners were not co-operating so as to be available for interrogation by the police after the grant of anticipatory bail. The two houses of the petitioners have already been searched by the police and various articles have been recovered from there. No allegation was made that at the time of effecting the searches either of the petitioners put up any resistance or did not extend his cooperation. The argument of the learned Advocate-General that it was essential to submit both the petitioners or Shri Bansi Lai petitioner alone, to some specialised type of interrogation by keeping them in custody cannot be appreciated. Stress on the dire necessity of resorting to this type of investigation or interrogation was commented upon not without substance by the learned counsel fo the petitioners as reinforcing the appre hension of the petitioners that their custody was being sought for the purpose of Isubjecting them to undue victimisation or humiliation for extraneous reasons. As regards the other contention of the learned Advocate-General that the petitioners had not co-operated with the Investigating Agency, I have closely perused the reports and the entries in the Roznamcha with reference to the attempts by the Police Officers made on 2nd, 4th and 9th August, 1977 to secure the presence of the petitioners for the purpose of interrogation, and it is not possible for me to conclude from the same that the petitioners had not co-operated with the police or had deliberately attempted not ,to make themselves available for interrogation. On 2nd August when the Police Officer went to the house of Shri Bansi Lai petitioner, he was not found present there, and the report does not indicate that any effort was made to wait for hig arrival. On 4th August an attempt was made only to secure the presence of Shri Surrender Singh petitioner, who expressed his inability to go at that time because of the rains and the consequent damage to the roads. It is not understandable as to why he was not required to go to the Police Station, Bhiwani, or to contact the Investigating Agency on. any other date. Similarly, after 2nd August, the only attempt to secure the presence of Shri Bansi Lai petitioner was made on 9th August, when according to the latter very little time wag left to go to Bhiwani or to contact the Investigating Officer. It interrogation was needed, he could be asked or instructed to contact the Investigating Agency on the next day or on some other date. In any case, no conclusion can be drawn from these circumstances that the petitioners were deliberately avoiding to make themselves available for interrogation. The learned counr sel for the petitioners during his argument gave a categorical undertaking that the petitioners were too willing to extend their fullest co-operation to the Investigating Agency.
10. It was lastly contended by the learned Advocate General that for the purpose of interpreting the true scope of Section 438 of the New Code guidance ought to be taken from its earlier Section 437. According to Section 43?. different considerations come into play when any person is accused of a non-bailable offence and there appear reasonable grounds for believing that he has been guilty of an offence punishable with death, or imprisonment for life. Regarding all other offences the matter has been left to the discretion of the Court concerned, and there is no dearth of decisions by this Court or by the various other High Courts showing that bail should not be refused as a matter of punishment, and that a person accused of an offence howsoever heinous, has to be considered as innocent till he is proved to be guilty. While considering the question regarding grant of refusal of bail, several circumstances, including the seriousness of the offence, the possibility of the accused to abscond, or the chances of his tampering with the witnesses or misusing his liberty, as well as the prima facie nature of the evidence available on the record, have been considered by the courts as relevant considerations. These considerations are also relevant for the purpose of deciding the question of grant of anticipatory bail. Besides these, the background and the circumstances which persuaded the- Law Commission to recommend the introduction of the provision of anticipatory bail in the statute book have also to be borne in mind.
11. For the reasons mentioned above, t am of the considered opinion that there are no compelling circumstances to review or modify the order passed by Sharma J. on 3rd August, 1977. The said order is thus confirmed.