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Kali Dass Vs. S.H.O. Police Station Reasi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1979CriLJ345
AppellantKali Dass
RespondentS.H.O. Police Station Reasi
Cases ReferredBalchand Jain v. State of Madhya Pradesh
Excerpt:
- orderadarsh sein anand, j.1. this petition raises an important and interesting question of law as regards the powers of this court to admit a person to bail in anticipation of his arrest.2. the brief facts which have given rise to this petition being filed in this court are that a f.i.r. being no. 37 of 1978 has been lodged in the police station, reasi, for offences under sections 363/366 r.p.c. on the allegations that the petitioner herein had kidnapped/ abducted mst pushpa devi, a minor, on the night intervening 23/24th of february, 1978. apprehending, that he would be arrested and detained in connection with the said case, the petitioner has filed this petition for the grant of bail to him in anticipation of his arrest.3. the petitioner has stated in his application that the case.....
Judgment:
ORDER

Adarsh Sein Anand, J.

1. This petition raises an important and interesting question of law as regards the powers of this Court to admit a person to bail in anticipation of his arrest.

2. The brief facts which have given rise to this petition being filed in this Court are that a F.I.R. being No. 37 of 1978 has been lodged in the Police Station, Reasi, for offences under Sections 363/366 R.P.C. on the allegations that the petitioner herein had kidnapped/ abducted Mst Pushpa Devi, a minor, on the night intervening 23/24th of February, 1978. Apprehending, that he would be arrested and detained in connection with the said case, the petitioner has filed this petition for the grant of bail to him in anticipation of his arrest.

3. The petitioner has stated in his application that the case against him is false. According to him a marriage has been solemnised between him and Mst, Pushpa Devi aged 19J years at the Arya Samaj Mandir Purani Mandi, Jammu, on 27th Feb., 1978 and as such, the allegations against him are false. In support of his assertion that Mst. Pushpa Devi is more than 19 years of age, he has filed a photostat copy of the medical certificate purporting to have been issued by an Assistant Surgeon of the Fever Hospital, Jammu, wherein from the clinical examination, the doctor has opined that Mst. Pushpa Devi was round about 19 years of age. The petitioner has also filed a certificate evidencing marriage and a photostat copy of an affidavit of Mst Pushpa wherein it is stated that she was more than 19 years of age and was marrying the petitioner of her own freewill.

4. According to the petitioner, he is a Rajput and since he has married a Brahmin girl, atmosphere in Reasi is surcharged against him and, therefore, he did not apply for bail at the courts at Reasi and has directly approached this Court under Section 498, Cr.P.C.

5. Mr. O.N. Tikku, learned Advocate General, has raised a preliminary objection as regards the maintainability of this petition. It is urged by Mr. Tikku that the powers of this Court under Section 498, Cr.P.C. are subsidiary to the powers under Section 497, Cr.P.C. and the limitation contained in Section 497, Cr.P.C. covers the exercise of discretion under Section 498, Cr.P.C. It is urged by the learned Advocate General that from the scheme of the Code it was abundantly clear that Section 498, Cr.P.C. does not empower the High Court to grant bail to a person who has not been placed under some restraint, by arrest or otherwise, and since the petitioner was under no such restraint, he could not apply for being released on bail. It has been vehemently argued that the concept of bail presupposes some prior restraint. It is also argued that by granting bail in anticipation of arrest, the court would be interfering with the investigation by the police and such interference is not permitted by law. Reliance has been placed on various provisions of the Code of Criminal Procedure to assert that it is the statutory right of the investigating agency, while investigating into a cognizable offence, to arrest and detain in custody a person against whom information regarding the commission of a cognizable offence has been lodged, for twenty four hours excluding the time necessary for the journey from the place of arrest to the Magistrate's Court without seeking the sanction of any court or magistrate and where the interrogation of the alleged offender cannot be completed in the said period of 24 hours, the police may approach the court for the remand of the accused for a further period up to fifteen days. On this basis, the learned Advocate General has submitted that bail be not granted to the petitioner. On merits, Mr. Tikku has urged that the petitioner is alleged to have committed a serious offence and he should not be admitted to bail.

6. Mr. Mehta, on the other hand, has urged that the grant of bail is the rule and its refusal is an exception. It is urged that whenever a case is registered against a person regarding the commission of a cognizable offence, the alleged offender can be arrested and detained without any warrant. It is urged that as soon as such a case is registered there arises an apprehension in the mind of the alleged offender that he is liable to be arrested at any time and such an apprehension by itself places a mental restraint on the alleged offender. This mental restraint is sufficient to enable the offender to approach the court under Section 498, Cr.P.C. and seek bail. It is also urged by Mr. Mehta that the provisions of Section 498, Cr.P.C. should be liberally construed and the basic presumption of the innocence of an accused 'till proved guilty' would justify the grant of bail to an alleged offender in anticipation of his arrest. On merits, it is submitted that the petitioner has produced prima facia documentary evidence which would falsify the allegations made against him and that since the petitioner is neither likely to abscond nor tamper with the evidence he be admitted to bail.

7. Following questions call for determination in the present case:

(1) Do the restrictions and limitations contained in Sections 496 and 497, Cr.P.C. also govern the exercise of discretion by the court under Section 4&8, Cr.P.C?

(2) Does the High Court have the power to grant bail to a person in anticipation of his arrest under Section 498, Cr.P.C?

(3) Does the exercise of discretion by the Court to grant 'anticipatory' bail amount to interference in the process of investigation by the police?

(4) Under what circumstances can the High Court or the Court of Session grant 'anticipatory' bail; and

(5) Has the petitioner made out any case for the grant of 'anticipatory' bail in the present case?

8. Before we proceed to determine the questions, it would be relevant to reproduce certain relevant provisions of the Code:

Section 496 Cr.P.C. provides:

When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a Police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or any stage of the proceedings before such Court to give bail, such person shall be released on bail:

Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided.

Provided, further, that nothing in this section shall be deemed to affect the provisions of Section 107, Sub-section (4) or Section 117, Sub-section (3).

Section 497, Cr.P.C. provides:

(1) When any person accused of (or suspected of the commission of) any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life:

Provided that the Court' may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance hereinafter provided.

(3) An officer or a Court releasing any person on bail under Sub-section (1) or Sub-section (2) shall record in writing his or its reasons for so doing.

(3-a) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

(4) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody on the execution by him of a bond without sureties for his appearance to hear judgment delivered.

(5) The High Court or Court of Session and, in the case of a person released by itself, any other court may cause any person who has been released under this Section to be arrested and may commit him to custody.

Section 498 Cr.P.C. provides:

(1) The amount of every bend executed under this Chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive and the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced.

(2) The High Court or Court of Session may cause any person who has been admitted to bail under Sub-section (1) to be arrested and may commit him to custody.

Question No. (1);

9. A perusal of the aforesaid provisions show that the conditions which are required to be satisfied for releasing a person on bail under Section 496 Cr.P.C. are

(1) That the person has been accused of a bailable offence;

(2) that such person has been arrested or detained for any charge by an officer in charge of a police station without wan ant or appears or is brought before a court and;

(3) that he is prepared to give bail.

10. If the aforesaid conditions are satisfied then an accused person, when accused of a bailable offence, has a right to be released on bail.

11. On the other hand, if a complaint or a police report against an accused person discloses the commission of any non-bailable offence, then subject to the limitations and restrictions contained in Section 497 Cr. P, C. he may be released on bail by the court, Thus, the basic distinction between the two cases is that whereas a person accused of a bailable offence has a right to be released on bail under Section 496 Cr.P.C. the grant of bail to a person accused of a non-bailable offence is in the discretion of the court under Section 49? Cr.P.C.

12. Section 496 Cr.P.C. empowers the High Court or the Court of Session 'in any case' to direct 'that any person be admitted to bail. No guidelines or limitations have been given in Section 498 Cr.P.C. by itself. However, Section 498 Cr.P.C. immediately follows Sections 496 and 497 Cr.P.C. which are the main provisions dealing with bail and therefore it is manifest that the restrictions and limitations placed in Sections 496 and 49? Cr.P.C. are implicitly contained in Section 498 Cr.P.C. also.

13. The expression 'may in any case' {occurring in S, 498 Cr.P.C. governs only the language following namely 'whether there be an appeal on conviction or not' and does not confer any independent wider power in the Sessions Court or the High Court to grant bail. The expression does not enlarge the power of the court in the matter of grant of bail, The provisions of Section 498 Cr.P.C. are not unrelated to the general tenor of Section 497 Cr.P.C. and the legislature did not intend to imply in that section that the restrictions imposed by Sections 496 and 497 Cr.P.C. could be ignored. This matter has been settled by the highest authority and is no longer debatable.

14. Their Lordships of the Privy Council in Jai Ram Das v. The Emperor AIR 1945 PC 94: 44 Cri LJ 6162. laid down that the provisions of Section 498 Cr.P.C. do not confer any power upon the High Court or the Courts of Session 'beyond the powers conferred by Sections 496 and 497' except in regard to the powers to reduce the amount of bail bonds etc. Their Lordships further opined that the powers under Section 498 Cr.P.C. are ancillary and subsidiary to the provisions of Sections 496 and 497 Cr.P.C

15. In Amir Chand v. Crown AIR 1950 East Punj 53: 51 Cri LJ 480, a Full Bench of that Court opined that Section 498 Cr.P.C. does not permit the High Court or the Courts of Session to grant bail to anyone whose case is not covered by Sections 496 and 497 Cr.P.C. This view has been followed in Public Prosecutor Andhra Pradesh v. G. Manikya Rao : AIR1959AP639 State v. Dallu Punja AIR 1954 MB 1131 : 1954 Cri LJ 1052 (FB) and by a Division Bench of the Calcutta High Court in Amjad Sheikh v. State : AIR1955Cal141 and by various other High Courts.

16. In the face of these authorities it is futile to argue that the powers under Section 498 Cr, P. C. are unrestricted or extraordinary or that the restrictions embodied in Section 497 Cr.P.C. are not to be read into the provisions of Section 498 Cr.P.C. The answer to the first question, therefore, is that the restrictions and limitations contained in Sections 496 and 497 Cr.P.C. also govern the exercise of discretion by the court under 8. 498 Cr.P.C.

Question No. (2);

17. The next question, now, which arises for consideration is whether a per- son can be admitted to 'bail' in anticipation of his arrest under Section 498 Cr.P.C. 18. The concept of 'bail' implies some previous restraint. By admitting a person to bail or directing the release of a person on bail, the court in effect directs that the person be released from the restraint under which he is labouring on taking security for his appearance. The dictionary meaning of the word 'bail' is 'to set free or liberate a person arrested or imprisoned on taking security for his appearance'. The term 'bail', therefore, implies release of a person from restraint and his delivery into the hands of the sureties who undertake to produce him on a given date at a given place. Thus, the power to grant bail clearly envisaged the power to grant the release of a person from restraint on his executing bail bonds as envisaged under Section 500 Cr.P.C. A person who is not under any restraint, does not need any order of bail as he is free to go anywhere he likes. A bare reading of Section 500 Cr, P. C, which deals with the release of a person on execution of a bond clearly brings out the implications that bail can be granted only to such a person who is under some restraint as on taking his bail bond he is released from 'custody'. The person seeking bail, therefore, must first satisfy the court that he is under some actual physical restraint and not that he apprehends that in future he may be under a restraint. The court, while granting bail releases him from the present restraint, as indeed, the court, cannot order his release from some restraint which may or may not be imposed on him in future.

19. The argument of Mr. Mehta, that when a non-bailable offence is alleged against an accused, he is under a constant apprehension of arrest, and as such, being under a mental restraint he, can invoke the powers of the High Court to be admitted to bail, does not appeal to reason or logic. learned Counsel has not been able to support his submission by any authority and in view of what I have said above, no person has a right to ask for bail unless he is under an actual physical restraint. An order of bail can release the person from such a restraint but I fail to understand how 'mental restraint' of a person can be released by being admitted to bail. Even after bail is allowed, the accused, may continue, to remain under a 'mental restraint' till actually acquitted of the charges levelled against him.

20. Mr. Mehta has then submitted that the word 'appears' in Section 497 Cr.P.C empowers the court to release a person on bail even when he is not under a physical restraint because, had such a person been under a physical restraint, he could not have 'appeared' in the court voluntarily to seek bail, and as such, it is argued that for seeking bail a person need not be under any actual physical restraint.

21. There has been some divergence of opinion as to the interpretation of the word 'appear' occurring in Section 497 Cr.P.C. One view is that the word 'appear' in the context of S, 497, Cr, P. C, implies appearance on being summoned; appearance pursuant to a bail' able warrant or in pursuance of an undertaking to appear contained in a bond but does not include voluntary appearance of the accused in court. The other view is that the word 'appear' is wide enough to include voluntary appearance of a person accused of an offence even where no summon or warrants have been issued against him. The weight of the authority, of course, is in favour of the view that expression 'appear' is wide enough to include voluntary appearance of a person accused of any offence: [see AIR 1950 EP 53 : 51 Cri LJ 480 (FB) : AIR 1953 Pepsu 146 : 1953 Cri LJ 1525 : AIR 1954 Madh Bha 113 : 1954 Cri LJ 1052 (FB)] I am inclined to accept the view that the expression 'appear' occurring in Sections 496 and 497 Cr.P.C. includes 'voluntary appearance' as when a person accused of an offence seeks bail by 'appearing' in court, he in fact surrenders himself to the custody of the court and the expression 'appear' in that sense means 'presents and surrenders' himself before the court. In such circumstances there would be notional detention of the accused person.

22. The first step, therefore, which must be taken by any person who wishes to be admitted to bail prior to his actual arrest or detention, would be to appear before a court and to surrender to the custody of the court. Once the accused surrenders to the court, he is in the custody of the court and, therefore, it can be said that he is then under an actual physical restraint from which he seeks to be released.

23. Thus, a joint reading of 3s. 497 and 498 Cr.P.C. lead to an irresistible conclusion that the High Court has the power to admit an accused person to bail, subject to his satisfying the conditions laid down in the Code and making out a special case for being admitted to bail, not only when he has been arrested or detained by the police but also in cases where he 'appears' and surrenders to the custody of the court in anticipation of his arrest. In thai event, the count may grant bail to the person before he has been actually arrested by the police and in anticipation of such an arrest. The expression 'anticipatory bail' to my mind, only implies bail 'in anticipation of the arrest by an accused surrendering to the custody of the court'. There may be variety of reasons which may warrant such a course to be adopted by an accused person i.e. seek bail before he is actually arrested by the police, the fear of being disgraced and harassed for oblique reasons and similar other grounds.

24. There is no specific provision in the Code of Criminal Procedure of this State dealing with the grant of bail in anticipation of arrest, However, in my opinion, the powers under Section 498 Cr.P.C. are wide enough to empower the court to exercise its discretion to grant bail to an accused person when he appears and surrenders himself in the court even in anticipation of his arrest In the rest of the country, a new provision has been incorporated in Cr.P.C. viz. Section 438 Cr.P.C. which deals specifically with the grant of anticipatory bail. It would be useful to notice here that in the rest of the country Section 438 Cr.P.C. came to be embodied in the 1974 Criminal Procedure Code as a result of the recommendation of the Forty-First report of the Law Commission.

25. The Law Commission in that report pointed out

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.

26. The Law Commission, therefore, realised the necessity for making a specific provision in regard to the ground of bail in anticipation of arrest with a view to resolve the conflict of judicial opinion as regards the powers of the court under Section 498, Cr.P.C. to grant bail in anticipation of arrest.

27. Such a provision is not available in the Code of Criminal Procedure in this State yet, but as already observed the Sessions Court and the High Court m this State subject to the limitations indicated above have the power to enlarge a person on bail in anticipation of his arrest under Section 498, Cr.P.C. I would accordingly answer the second question in affirmative.

Question No. (3):

28. Indeed, the Cr.P.C. confers a statutory right on the police to investigate into every cognizable offence reported to it without the sanction of any court or magistrate. Under the Code the police has a right to arrest and detain in custody an offender, for the first 24 hours without the sanction of the court and further detain him for the maximum period of 15 days with the authority of the Magistrate. These provisions in the Code have been made apparently to enable the police to arrest and interrogate an accused with a view to unearth the crime. Such an enabling provision cannot take away the powers of the Courts. After the initial 24 hours, the police can detain an accused in their custody only on the authority of the magistrate and in a given case a magistrate may refuse to grant the police remand if he is not satisfied about the existence of the conditions embodied in Section 167(2) Cr.P.C. and there would then be no bar to an accused applying for bail under Section 497 Cr.P.C.

29. The argument that the grant of bail to an accused person, before his arrest under Section 498 Cr.P.C. would amount to interference in the investigating process, though, attractive, is farfetched. The investigation of a case does not necessarily imply investigation by keeping an accused in police custody for the entire duration of police investigation. If it were so, no accused person would have any right to apply for bail till the investigation in a given case is over, and strictly speaking an investiga- tion would be over only when the challan is filed in court or the case is cancelled. Such a situation would render the provisions of Se. 497 and 498 Cr.P.C. almost meaningless.

30. While construing the statutory powers of police to investigate cases as embodied is Chapter XIV of the Code, it would be improper not to take into account the provisions of Chap. XXXIX of the Code, which deals with grant of bail to an accused. Provisions of the Code must be so construed that any interpretation of a particular provision which has the effect of rendering some other provision of the Code, nugatory must be avoided. The learned Advocate General has placed strong reliance on Gurbaksh Singh Sibia v. State of Punjab AIR 1978 Punj and Har 1 : 1978 Cri Lj 20 (FB). In that case the learned Judges of the Full Bench of the Punjab High Court were considering the question of grant of a 'blanket anticipatory' bail and during that consideration it was observed that the grant of anticipatory bail under Section 438 Cr.P.C. (Central) would amount to nullify the provisions of Section 167(2) of the Code and denude the right of the investigating agency. With due respects to the learned Judges, I would say that the proposition appears to have been very broadly stated. The learned Judges of the Full Bench of the Punjab High Court appear to have proceeded on the assumption that investigation necessarily includes interrogation of an accused 'in custody' of the police. There is no warrant for such an assumption, as this interpretation would render the provisions of S. 497 and 498 Cr.P.C. unworkable not only where an accused 'appears' and 'surrenders' to the custody of the court and makes out a special case for his being admitted to bail before his actual detention but also where the court in exercise of its powers under Section 497 Cr.P.C. refuses to give a further police remand to an arrested accused after a perusal of the police diaries under Section 167(2) Cr.P.C. Paramount importance to an individual's liberty, with due observance of law and order, is not only desirable but imperative and the power of supervision and superintendence of the courts even during the period of investigation cannot be whittled down. Any other view would imply the taking away of the powers of the court under Sections 167(2), 169, 172(2) Cr.P.C. and similar other provisions. The Code itself enjons the supervision of the Magistrate during investigation by the police at various stages and that power would become meaningless if the court cannot admit a person to bail during the pendency of investigation on the plea that this action would amount to interference in police investigation. The principle laid down in Nazir Ahmad's case AIR 1945 PC 18: 46 Cri LJ 413 were never meant to be extended to this extent. The functions of the judiciary and police are complementary and each exercises its own functions in accordance with law.

31. With respects, I am unable to agree with the view of Sandhawalia, J., expressed in the Full Bench AIR 1978 Punj and Har 1 : 197B Cri LJ 20 that for proper and effective investigation, interrogation of an accused in custody is always essential. Unhesitatingly, I would say that the proposition has been very broadly stated and cannot have any universal application. Interrogation of an accused is a part of investigation and the interrogation need not always be whilst in custody. To hold otherwise would be giving a very extended meaning to 'investigation' which is not justified. The proposition laid down by the Full Bench may have application in cases where the police has to make some incriminating recoveries etc. at the instance of the accused but not in all cases. In latter type of cases where some incriminating recovery etc. has to be made, the right of the police to interrogate an accused while in custody must be safeguarded and the same can, in my opinion, be adequately safeguarded by the courts by generally giving a notice to the prosecution, before making any order of anticipatory bail, to show cause why the accused person be not admitted to anticipatory bail. It would then be open to the prosecution to satisfy the court of the grounds which necessitate the interrogation of the accused in custody and the court, if satisfied would refuse to exercise the discretion in favour of the accused. This, however, does not reflect the lack of power to grant bail at the investigation stage.

32. The learned Advocate-General has| not been able to satisfy me that the grant of bail in anticipation of arrest amounts to interference with the police investigation and in this view of the discussion, I would answer the third question in the negative.

QUESTION NO. (4)

33. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of discretion in the matter of grant of bail. While seeking bail in anticipation of his arrest under Section 498 Cr.P.C. a person accused of the commission of a non-bailable offence, must in addition to satisfying the conditions detailed in Section 497 Cr, P. C. make out the existence of a special case requiring the High Court or the Court of Session to exercise its discretion to admit him to bail. While it is not possible to lay down exhaustively as to what consideration must be kept in view while admitting a person to bail, it would be worthwhile to note the following guidelines which appear in State v. Jag-jit Singh : [1962]3SCR622

Among other considerations, which a court has to take into account in deciding whether bail should be granted in a non-bailable offence, is the nature of the offence; and if the offence is of a kind in which bail should not be granted considering its seriousness, the court should refuse bail even though it has very wide powers under Section 498 of the Code of Criminal Procedure.

34. Once again in Balchand Jain v. State of Madhya Pradesh AIR 1977 SC 366 (at p. 377) 1977 Cri LJ 225 at page 235 while dealing with the question of grant of anticipatory bail under S, 438 Cr.P.C. (Central) where a person is accused of the commission of an offence under Rule 184 of Defence and Internal Security of India Rules, 1971, Fazal Ali, J. opined:

Section 438 does not contain unguided or uncanalised powers to pass an order for anticipatory bail, but such an order being of an exceptional type can only be passed if, apart from the conditions mentioned in Section 437, there is a special case made out for passing the order. The words 'for a direction under this section' and 'Court may, if it thinks fit, direct' clearly show that the Court has to be guided by a large number of considerations including those mentioned in Section 437 of the Code.' (Provisions of Section 437 are quite analogous to the provisions of Section 497 Cr.P.C.)

35. Again, while emphasizing the necessity of granting an opportunity to the prosecution of hearing before grant of anticipatory bail, the learned Judge ob-served (at p. 234 of Cri LJ):

It would thus appear that while the Law Commission recommended that provision for an order of anticipatory bail to be effective when a person is arrested should be made, at the same time it stressed that this being an extraordinary power should be exercised sparingly and only in special cases. It also recommended that this power should not be exercised without giving notice to the other side. We think, this is why the Legislature has entrusted this power to high authorities like the Sessions Judge and the High Court and we also feel that in the interests of justice it would be desirable if a final order is made only after hearing the prosecution. Although this condition is not mentioned in Section 438 of the Code but having regard to the setting in which the section is placed and the statement of objects and reasons which is actually based on the recommendations of the Law Commission, we think that rule of prudence requires that notice should be given to the other side before passing a final order for anticipatory bail so that wrong order of anticipatory bail is not obtained by a party by placing incorrect or misleading facts or suppressing material facts.

36. From the above discussion, it follows that in a suitable case bail may be granted by the court under Section 498, Cr.P.C. when requirements of Section 497, Cr.P.C. are satisfied and there also exist special grounds for the grant of bail. It would thus show that the court may refuse to exercise the discretion in a case where the offence alleged against an accused person is such that it is punishable with death or imprisonment for life or where there exists reasonable apprehension that the accused person if admitted to bail would abuse the concession of bail by either absconding or tampering with evidence. As already stated above, it is not possible to lay down exhaustively the circumstances under which discretion may be exercised by the court but I may refer to the observations of Bhagwati j, in Balchand Jain v. State of Madhya Pradesh AIR 1977 SC 366 (at p. 369) : 1977 Cri LJ 225 at p. 227:

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 echelon of judicial service, namely a Court of Session and the High Court, It is a power exerdsable 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.

37. In view of the above discussion, if an accused person is able to make out a special case for being admitted to bail in anticipation of his arrest after satisfying the requirements contained in Section 497, Cr.P.C. and the court is further satisfied that there are no reasonable grounds to believe that the accused person would abuse the concession of bail in any manner, the court may admit the accused person to bail in anticipation of his arrest.

QUESTION NO: (5)

38. Let us now consider whether the petitioner, in the instant case is entitled to be admitted to bail or not.

39. The accused has appeared and has surrendered himself to the custody of the court and as such he has satisfied the first step for the maintainability of his petition for grant of bail.

40. The offences which are alleged to have been committed by the petitioner are offences under Sections 363/366, R.P.C. The offence under Section 363, R.P.C. is punishable with imprisonment of either description for a term which may extend to seven years in addition to fine while the offence under Section 366 RPC is punishable with Imprisonment of either description which may extend to 10 in addition to fine. Both the of-alleged against the petitioner are, ire, not such which are either unishable with death or with imprisonment for life.

41. The petitioner has come to this Court alleging that since he has married a Brahmin girl, a false case has been instituted against him under the influence of the caste ridden society to harass him and humiliate him. He has produced a certificate of marriage issued by Arya Samaj Mandhir Jammu, in addition to producing the photostat copy of a medical certificate purporting to show the age of Mst, Pushpa Devi to be 19 years and an affidavit alleged to be of Mart. Pushpa Devi, sworn before a Magistrate, stating that she had married the petitioner of her own free will. What is the evidentiary value or genuineness of these documents, is not for me to comment at this stage. It will not be desirable to give any expression of opinion with regard to this aspect of the case at this initial stage. The photostat copy of the medical certificate and the affidavit, however, do purport to show that 'a' Mst, Pushpa Devi appeared before the doctor for her clinical examination as well as before a Magistrate for swearing an affidavit. The learned Advocate General has produced the police diary before me and has relied upon the School Leaving Certificate showing that the date of birth of Mst. Pushpa Devi was 9-4-61. This date of birth would show that Mst. Pushpa Devi was about 17 years of age at the time of the alleged commission of the offence. I would refrain from commenting on the evidentiary value of this School Leaving Certificate also.

42. While opposing the grant of bail on merits, the learned Advocate General has submitted that investigating agency has not been able to interrogate Mst, Pushpa Devi or the petitioner so far in relation to the offence and that prima facie the girl being below 18 years of age, the offence has been prima facie made out against the petitioner. In the written objections filed by the Advocate General this ground has been reiterated. There is, however, no averment therein that any incriminating recovery has to be made by the police from the accused or that if admitted to bail the petitioner would abuse the concession of bail.

43. It is not disputed by the learned Counsel for the petitioner that the investigating agency has had no opportunity to interrogate the petitioner or Mst. Pushpa Devi earlier but it is submitted that under directions of this Court, the petitioner and Mst, Pushpa Devi have already appeared before the SHO on 17-3 197B, and have been interrogated.

44. In the written objections filed on behalf of the State which have been reiterated before me also all that has been stated is that since the investigation was pending and there were sufficient grounds for believing that the petitioner had committed a non-bailable offence he should not be admitted to bail. As noticed earlier there is no averment in the objections much less any material which may show that the petitioner, if enlarged on bail is either likely to abscond or tamper with evidence or in any other manner abuse the concession of bail or that it may not be possible to secure his presence at the trial or that any recovery of an incriminating material has to be made from the petitioner.

45. The general principle of law is to grant bail and bail should not be refuse ed either as a measure of punishment or to put obstacles in the way of the defence.

46. The offence alleged against the petitioner is not such which is punishable with death or imprisonment for life. The petitioner has sworn an affidavit and has also produced some other documents with a view to prima facie show that he is married to the respondent a girl of about 19 years (genuineness or falsehood of the plea is not for me to determine at this stage). However, the marriage certificate and other documents, if relied upon, may afford a possible defence to the petitioner against the accusation. The petitioner has personally and through his learned Counsel asserted that he would not in any manner abuse the concession of bail that he would not abscond or tamper with 'evidence and that he would join the investigation as and when required and would also abide by any other condition which may be imposed upon him. In my opinion, the petitioner has been able to satisfy this Court that sufficient grounds do exist for the grant of bail to him in the facts and circumstances of this case.

47. Considering the totality of the circumstances of this case including the nature of the offence, the character of the offender and the undertaking given by him to the court, the petitioner is [entitled to be admitted to bail and I direct that the petitioner shall be admitted to bail, pending investigation, in [the sum of Rs. 5000/- with two sureties of the like amount to the satisfaction of the Deputy Registrar subject, however, [to the following conditions :

(1) that the petitioner shall join the investigation at all reasonable times when asked for by the investigating officer;

(2) that the petitioner shall not go outside the jurisdiction, of the High Court during the pendency of the investigation;

(3) that the petitioner shall not directly or indirectly tamper with evidence or in any other manner abuse the concession of bail.

48. With these observations, Criminal Original Petition No. 108 of 1978, is allowed.

49. However, nothing stated herein above be taken to be any expression of opinion on the merits of the case.


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