Himachal Pradesh High Court
Between vs State Of Himachal Pradesh on 3 June, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 3rd DAY OF JUNE, 2022
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
.
CRIMINAL MISC. PETITION (MAIN) Nos.1166 & 1172 OF 2022
1. CRMPM No.1166 of 2022
Between
RAMAN MALHOTRA, AGED 46 YEARS,
S/O LATE SH. SHIV CHARAN MALHOTRA,
R/O WARD NO.6, KOTWALI BAZAAR,
DHARAMSHALA, TEHSIL DHARAMSHALA,
DISTRICT KANGRA,
HIMACHAL PRADESH.
.....PETITIONER
(BY SH. NAVLESH VERMA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY SH. HEMANT VAID, ADDITIONAL ADVOCATE GENERAL)
2. CRMPM NO.1172 OF 2022
SWARIT MALHOTRA, AGED 34 YEARS,
S/O SH. VINAY MALHOTRA,
R/O WARD NO.6, KOTWALI BAZAAR,
DHARAMSHALA, TEHSIL DHARAMSHALA,
DISTRICT KANGRA,
HIMACHAL PRADESH.
.....PETITIONER
(BY SH. NAVLESH VERMA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY SH. HEMANT VAID, ADDITIONAL ADVOCATE GENERAL)
MR. ANKUSH DASS SOOD, SENIOR ADVOCATE,
WITH MR. GAURAV CHAUDHARY, ADVOCATE, FOR
COMPLAINANT.
ASI SWAROOP KUMAR, I.O., POLICE STATION
KANGRA.
Decided on : 3.6.2022
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These petitions coming on for orders this day, the Court
passed the following:
ORDER
.
These petitions, arising out of the same FIR, to be decided on the basis of common facts and circumstances, and material on record, are being disposed of by this common order.
2. Petitioners, invoking Section 438 of the Code of Criminal Procedure, have approached this Court for grant of bail in case FIR No.56/2022, dated 18.5.2021, registered under Section 306 & 506 of the Indian Penal Code (for short 'IPC'), in Police Station Kangra, District Kangra, Himachal Pradesh.
3. Status Report stands filed. Record has also been made available.
4. As per prosecution case, on 18.5.2022, one Ajay Chaudhary informed the police that a girl, a tenant in his commercial building located behind Kamal Dhaba in village Chhoti Haled, had committed suicide by hanging. Police Party rushed to the spot, where statement of Viveka Gill wife of Ankush Gill, sister of deceased, under Section 164 of the Code of Criminal Procedure (for short 'Cr.P.C.'), was recorded, stating therein that her deceased sister was married in the year 2009 with Karan Singh resident of Sham Nagar Dharamshala and she was having 13 years old daughter from the said wedlock. After marriage, deceased, for strained ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...3...
relations with her husband, left the house of her husband and started living in her matrimonial home and earning her livelihood as casual Beautician by providing home service as .
and when called and, in the year 2020, she started living in rented accommodation in the building of Ajay Chaudhary and continued her work of Beautician. In the year 2015, petitioner Swarit Malhotra took her (deceased) to his home and violated her person forcibly and thereafter continued to do so with assurance to marry her and he compelled her sister (deceased) r to take separate rented accommodation, whereupon her sister, in the year 2020, hired a room in Kangra and asked petitioner Swarit Malhotra to marry her but the petitioner Swarit Malhotra flatly refused, whereupon her deceased sister lodged a complaint on 16.4.2022 against Swarit Malhotra in Women Police Station, under Section 376 IPC. In that case, petitioner Swarit Malhotra was arrested, but was enlarged on bail after about 20 days. After releasing from jail, on 16.5.2022 at about 5.30 p.m., petitioner Swarit Malhotra came to her (complainant) residence at Chilgadi and said that he was the first person who managed his bail in a rape case after spending `30-35 lakhs and asked the complainant to advise her sister (deceased) to withdraw the complaint otherwise he would manage murder of her brother and sister. On telling this to her sister (deceased), she told ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...4...
that she was already receiving such threats from Swarit Malhotra. On 16.5.2022, Swarit Malhotra solemnized marriage with someone else, which was known to her sister (deceased).
.
Complainant alleged that her sister committed suicide due to harassment, threats and defamation for which petitioner Swarit Malhotra was liable.
5. During investigation, 12-page Suicide Note of deceased has been found by the Investigating Agency, wherein tale of sorrow of deceased on account of act, conduct and deeds coupled with threats of petitioners, causing unbearable harassment, humiliation and defamation to deceased, have been narrated in detail.
6. It is stated in the Suicide Note that when deceased contacted the Women Cell Dharamshala, for the first time, the SHO of Police Station did not register the complaint of the deceased by saying that deceased and petitioner were living in live-in relationship and, therefore, no case was made out.
Thereafter, petitioner came to know about NGO 'Nai Roshni', an Organization helping women, and with the help of said NGO she again approached the Police but at that time also conduct of the police was hostile whereupon deceased had left the Police Station alongwith her complaint out of anger and disappointment, however lateron FIR could be lodged with great difficulty.
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7. It has also been stated in the Suicide Note that the day when she (deceased) attended the Court for recording of her statement, petitioner Raman Malhotra @ Rinku had come .
alongwith `10.00 lakh and contacted President of NGO Anuj Katoch, with whose interference FIR could be lodged, by saying that there was no possibility of marriage of deceased and petitioner Swarit Malhotra and, therefore, deceased should withdraw the case by accepting `8-10 lakh and petitioner Raman Malhotra @ Rinku also visited husband of deceased for agreeing him to depose against the deceased by accepting `1-2 lakh, to propagate that deceased was characterless.
8. It has been alleged by the deceased that after getting bail in previous case, petitioner Swarit Malhotra was harassing, threatening and humiliating the deceased because of which she was not having any other option but to end her life. After releasing on bail, petitioner made a call to one Lalta Aggarwal, a friend of deceased, to call deceased at Kangra, without informing the deceased that petitioner would be there and advised sister of deceased to ask the deceased to withdraw the criminal case with threat that in case of continuation of criminal case he would strip the deceased and would kill her and after release on bail petitioner had been continuously doing propaganda against the deceased and her ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...6...
family causing to decide the deceased to finish her life because petitioner Swarit Malhotra was threatening to kill the entire family and she could not bear damage and harm to her .
family.
9. It has been stated in the Status Report that on 17.4.2022, FIR No.9 of 2022 was registered against petitioner Swarit Malhotra, stating therein that petitioner Swarit Malhotra, under false promise of marriage, continued physical relation with her (deceased) since April 2015 to 8.2.2022, despite refusal of the complainant to do so but compelling her for that by giving false assurance to marry. In the said case, petitioner Swarit Malhotra was arrested on 17.4.2022 and was enlarged on bail on 7.5.2022 and after enlargement on bail, as stated in the Suicide Note, he continued to pressurize the deceased to withdraw the complaint. Therefore, a petition for cancellation of his bail in case FIR No.9 of 2022 has also been filed by Women Police Station Dharamshala, which is pending adjudication before the Additional Sessions Judge Kangra and next date wherein has been fixed as 4.6.2022. It has also been stated that in the year 2017, another case FIR No.1 of 2017 dated 12.3.2017, under Section 354A read with Section 34 IPC, was also registered against petitioner Swarit Malhotra.
10. As per Status Report, Charanjeet Singh, brother of deceased, has also made statement that petitioner Swarit ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...7...
Malhotra has extended threat by communicating that deceased has died without any harm to the petitioner and now he (Swarit Malhotra) will compel him (Charanjeet Singh) to die .
and he is also threatening to ruin the whole family and further that Raman Malhotra has also threatened to teach a lesson to him (Charanjeet Singh).
11. After registration of FIR in present case, petitioners absconded and there was grave public unrest in the area, due to which dead body of deceased was not cremated for 3-4 days even after the postmortem and was cremated, after persuasive advice of the police, on 21.5.2022.
12. Petitioner Swarit Malhotra had also approached learned Additional Sessions Judge (1), Kangra at Dharamshala, seeking anticipatory bail by filing Application No.74-D/XXII/2022, which was dismissed on 23.5.2022, by relying upon observation made by the Supreme Court in P. Chidambaram v.
Directorate of Enforcement, (2019) 9 SCC 24.
13. Learned counsel for the petitioners has submitted that even if entire case of prosecution is admitted to be true even then alleged relations between deceased and petitioner Swarit Malhotra were consensual relations and as previous marriage of deceased was not dissolved, there was no occasion for making promise to marry deceased by petitioner Swarit Malhotra and, therefore, previous case filed by the deceased ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...8...
was false case which was registered for mounting undue pressure upon petitioner Swarit Malhotra and petitioner Swarit Malhotra was rightly enlarged on bail in that case, and further .
that for commission of suicide by the deceased, petitioners are not related even remotely and they are persons of good repute and deep roots in the society, having permanent resident in Himachal Pradesh and, therefore, there is no possibility of their fleeing from justice. They have joined the investigation and are ready to join investigation in future also and to furnish bail bonds as may be directed by the Court in case of their release on bail. It has further been submitted that arrest in present case would cause great ignominy, humiliation and disgrace to the petitioners as their custodial interrogation is not required at all and they have been falsely implicated and, therefore, they are entitled for bail. In support of afore contention, learned counsel for the petitioners has referred pronouncements of the Supreme Court in Uday v.
State of Karnataka, AIR 2003 SC 1639; and Siddharam Satlingappa Mhetre v. State of Maharashtra and others, (2011) 1 SCC 694.
14. Learned Additional Advocate General has submitted that circumstances in present case are extraordinary and from the material on record involvement of the petitioners in harassing, humiliating and defaming the deceased leading her to decide ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...9...
to finish her life, are clearly evident, and keeping in view the impact of incident in reference on the society and public unrest prevailing in the area, both the petitions deserve to be .
rejected so as to enable the Investigating Agency to conclude the investigation at the earliest because enlargement of the petitioners on bail, at this stage of the investigation, may frustrate the Investigating Agency in interrogating the petitioners and in collecting useful information and also materials which might have been concealed. He has submitted that success in such interrogation would elude if the petitioners are protected by granting anticipatory bail by the Court.
15. Learned Additional Advocate General has submitted that keeping in view the fact that Petitioner Swarit Malhotra has been fund involved in two other cases registered against him previously, and despite his enlargement on bail in FIR No.9 of 2022 with condition not to dissuade, threaten or allure the witnesses in that case, he alongwith petitioner Raman Malhotra indulged in humiliating, harassing and threatening the complainant as well as other persons related to her and, therefore, petitioners are involved in heinous crime of abetting the deceased to commit suicide and threatening the complainant and other relatives of the deceased, while petitioner Swarit Malhotra was on bail, they are not entitled ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...10...
for anticipatory bail and the bail petitions deserve to be rejected.
16. Learned counsel for complainant has also endorsed the .
submissions of the learned Additional Advocate General.
17. There was no specific provision in Code of Criminal Procedure, 1898 empowering the Court to grant bail to the person apprehending arrest. This provision was introduced, for the first time, in Cr.P.C. in 1973 on the basis of recommendations of Law Commission, urging necessity of such provision.r
18. This Court in Freed and other connected matters v. State, reported in 2020(4) Shim. LC 1614, has observed as under:
"8. Section 438 of the Cr.P.C. is a right provided for a person to approach the trial Court or the Court of Session, seeking direction to enlarge him on bail, in the event of his arrest, in a case wherein he apprehends his arrest on accusation of having committed a non-bailable offence.
9. Commenting upon the right provided under Section 438 of the Cr.P.C., the Supreme Court in State of M.P. & another v. Ram Kishna Balothia & another, (1995) 3 SCC 221, has observed that it is essentially a statutory right conferred long after the coming into force of the Constitution, but with clarification that it cannot be considered as an essential ingredient of Article 21 of the Constitution.
10. Dealing with a case under unamended Section 438, a five-Judges Constitution Bench of the Apex Court in Gurbaksh Singh Sibbia & others v. State of Punjab, (1980) 2 SCC 565, has clarified few points as under:
"35. Section 438 (1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe' that he may be arrested for a non-bailable offence. The use of the expression ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...11...
"reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for which reason it is not enough for the applicant to show that he has somesort of a vague apprehension that 'some .
one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested S. 438 (1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.
36. Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for grant-in such relief. It cannot leave the question for the decision of the Magistrate concerned under S. 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.
37. Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under S. 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F. I. R. is not yet filed.
38. Fourthly, anticipatory bail can be granted even after in F. I. R. is filed, so long as the applicant has not been arrested.
39. Fifthly, the provisions of S. 438 cannot be invoked after the arrest of the accused. The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so far as the offences for which he is arrested, are concerned. After ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...12...
arrest, the accused must seek his remedy under S. 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested."
.
11. The Apex Court in Savitri Agarwal and others v. State of Maharashtra and another, (2009) 8 SCC 325, dealing with a post-amendment case, referring Constitution Bench Judgment passed in Gurbaksh Singh Sibbia's case has observed as under:
"24. While cautioning against imposition of unnecessary restrictions on the scope of the Section, because, in its opinion, over generous infusion of constraints and conditions, which were not to be found in Section 438 of the Code, could make the provision constitutionally vulnerable, since the right of personal freedom, as enshrined in Article 21 of the Constitution, cannot be made to depend on compliance with unreasonable restrictions, the Constitution Bench laid down the following guidelines, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail:
(i) Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise.
(ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere "fear" is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...13...
belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the .
Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section.
(iii) The observations made in Balchand Jain v. State of M.P., (1976) 4 SCC 572, regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the Code r and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.
(iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One such condition can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...14...
possibly be predicated when the order was passed.
(v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power .
under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.
(vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.
(vii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
(viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad-interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage.
(ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR."
12. In Siddharam Satlingappa Mhetre v. State of Maharashtra and others, (2011) 1 SCC 694, following Gurbaksh Singh Sibbia's case, the Supreme Court has pointed ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...15...
out the following factors and parameters, which can be taken into consideration at the time of dealing with anticipatory bail:
"(i) The nature and gravity of the accusation and the .
exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to
r repeat similar or the other offences;
(v) Where the accusations have been made only
with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
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(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be .
considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
13. In Bhadresh Bipinbhai Sheth v. State of Gujarat and another, (2016) 1 SCC 152, the Supreme Court, in addition to reiterating the factors and parameters, delineated in the judgment in Siddharam Satlingappa Mhetre's case, has further culled out the following principles for the purpose of dealing with a case of anticipatory bail under Section 438 of the Cr.P.C.:
"25.1 The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.
25.2 The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
25.3 It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...17...
case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the .
investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre- conviction stage or post-conviction stage.
25.4 There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.
25.5 The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.::: Downloaded on - 04/06/2022 20:03:15 :::CIS
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25.6 It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new .
material or circumstances at any point of time.
25.7 In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.
25.8 Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-
imposed limitations.
25.9 No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case."
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16. It is also settled that for granting or rejecting anticipatory bail, assigning reason(s) for that is must. The Supreme Court has set aside the anticipatory bail granted/ rejected without assigning any reason. {See: Fekan Yadav v. Satendr Yadav alias Boss Yadav alias Satendra Kumar and others, (2017) 16 SCC 775; Prem Giri v. State of Rajasthan, (2018) 6 SCC 571; and Prem Giri v. State of Rajasthan, (2018) 12 SCC 20}.
17. Fundamental of criminal jurisprudence postulates 'presumption of innocence', meaning thereby that a person is believed to be innocent until found guilty and grant of bail is ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...19...
the general rule and putting a person in jail or in prison or in correction home, during trial, is an exception and bail is not to be withheld as a punishment and it is also necessary to consider whether the accused is a first time offender or has been accused of other offences and, if so, nature of such .
offence and his or her general conduct also requires consideration. Character of the complainant and accused is also a relevant factor. Reiterating these principles, the Apex Court in Dataram Singh v. State of Uttar Pradesh and another, (2018) 3 SCC 22, has also observed that however it should not be understood to mean that bail should be granted in every case, and the grant or refusal of bail is entirely within the discretion of the Judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately.
18. While consideration a bail application, it would be necessary on the part of the Court to see culpability of the accused and his involvement in the commission of organized crime, either directly or indirectly, and also to consider the question from the angle as to whether applicant was possessed of the requisite mens rea. Interim bail, pending investigation, can be granted, keeping in view the facts and circumstances of the case.
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22. Section 438 of the Cr.P.C. in itself provides certain factors, referred supra, for taking into consideration at the time of deciding bail applications under this Section, which are inclusive in nature. Some of other such principles, factors and parameters to be taken into consideration by the Court at the time of adjudicating an application under Section 438 of the Cr.P.C. have been elaborated and explained in pronouncements referred supra."
19. In Pokar Ram v. State of Rajasthan and others, (1985) 2 SCC 597, the Supreme Court had observed that relevant considerations governing the court's decision in granting anticipatory bail under Section 438 are materially different from those when an application for bail by a person who is ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...20...
arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher Court and bail is sought during the pendency of the appeal. These .
situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the Courts would exercise its discretion, one way or the other, are substantially different from each other. Observations in Para-
6, based on Gurbaksh Singh Sibbia, (1980) 2 SCC 565, are as under: r "6. The decision of the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565: (AIR 1980 SC 1632) clearly lays down that 'the. distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.' Unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued he shall be released on bail. A direction under S. 438 is intended to confer conditional immunity from the touch as envisaged by S. 46(1) or confinement. In Para 31, Chandrachud, CJ clearly demarcated the distinction between the relevant considerations while examining an application for anticipatory bail and an application for bail after arrest in the course of investigation. Says the learned Chief Justice that 'in regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant, on bail in the event of his arrest would generally be made. It was observed that 'it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...21...
must be granted if there is no. fear that the applicant will abscond.' Some of the relevant considerations which govern the discretion, noticed therein are the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of .
the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the State", are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.' A caution was voiced that 'in the evaluation of the consideration whether the applicant is likely to abscond, there can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it'."
20. In P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24, the Supreme Court has observed as under:
"Grant of anticipatory bail in exceptional cases
69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.
70. On behalf of the appellant, much arguments were advanced contending that anticipatory bail is a facet of Article 21 of the Constitution of India. It was contended that unless custodial interrogation is warranted, in the facts and ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...22...
circumstances of the case, denial of anticipatory bail would amount to denial of the right conferred upon the appellant under Article 21 of the Constitution of India.
71. Article 21 of the Constitution of India states that no .
person shall be deprived of his life or personal liberty except according to procedure prescribed by law. However, the power conferred by Article 21 of the Constitution of India is not unfettered and is qualified by the later part of the Article i.e. "....except according to a procedure prescribed by law." In State of M.P. and another v. Ram Kishna Balothia, (1995) 3 SCC 221, the Supreme Court held that the right of anticipatory bail is not a part of Article 21 of the Constitution of India and held as under: (SCC p.226, para 7) "7. ........We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed:
'We agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised.' In the light of this recommendation, Section 438 was incorporated, for the first time, in the Criminal Procedure Code of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article
21." (emphasis supplied)
72. We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...23...
keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest. It .
cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India.
73. The learned Solicitor General has submitted that depending upon the facts of each case, it is for the investigating agency to confront the accused with the material, only when the accused is in custody. It was submitted that the statutory right under Section 19 of PMLA has an in-built safeguard against arbitrary exercise of power of arrest by the investigating officer. Submitting that custodial interrogation is a recognised mode of interrogation which is not only permissible but has been held to be more effective, the learned Solicitor General placed reliance upon State v. Anil Sharma, (1997) 7 SCC 187; Sudhir v. State of Maharashtra, (2016) 1 SCC 146; and Directorate of Enforcement v. Hassan Ali Khan, (2011) 12 SCC 684.
74. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State v. Anil Sharma, (1997) 7 SCC 187, the Supreme Court held as under: (SCC p.189, para 6) "6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation- oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-
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arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be .
countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."
75. Observing that the arrest is a part of the investigation intended to secure several purposes, in Adri Dharan Das v.
State of W.B., (2005) 4 SCC 303, it was held as under: (SCC p.313, para 19) "19. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code."
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76. In Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, the Supreme Court laid down the factors and parameters to be considered while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the accused .
must be properly comprehended before arrest is made and that the court must evaluate the available material against the accused very carefully. It was also held that the court should also consider whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
77. After referring to Siddharam Satlingappa Mhetre and other judgments and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar, (2012) 4 SCC 379, the Supreme Court held as under: (SCC p.386, para 19) "19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty.
(See D.K. Ganesh Babu v. P.T. Manokaran, (2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain, (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal, (2008) 13 SCC 305.)""
... ... ... ...
83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. ................"
21. In Mangal Singh Negi v. Central Bureau of Investigation, reported in 2021(2) Shim. LC 860 : 2021(2) Him L.R. (HC) 917, this Court observed as under:
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"19. Provisions related to information to the Police and their powers to investigate have been incorporated in Sections 154 to 176 contained in Chapter-XII of the Code of Criminal Procedure ('Cr.P.C.' for short).
.
20. Section 156 Cr.P.C. empowers Police Officer to investigate in cognizable offences without order of the Magistrate and Section 157 prescribes procedure for investigation, which also provides that when an Officer Incharge of a Police Station has reason to suspect the commission of an offence, which he is empowered to investigate under Section 156, he, after sending a report to the Magistrate, shall proceed in person or shall depute one of his subordinate Officers as prescribed in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender.
21. Chapter V of the Cr.P.C. deals with provisions related to arrest of persons, wherein Section 41 also, inter alia, provides that any Police Officer may, without an order from Magistrate, and without a warrant, arrest any person against whom reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment which may be less than seven years or may extend to seven years, subject to condition that he has reason to believe, on the basis of such complaint, information, or suspicion, that such person has committed the said offence and also if the Police Officer is satisfied of either of the conditions provided under Section 41(1)(b)(ii), which also include that if such arrest is necessary "for proper investigation of the offence". Whereas Section 41(1)(ba) empowers the Police Officer to make such arrest of a person against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years or with death sentence and the Police Officer has reason to believe, on the basis of that information, that such person has committed the said offence, and for commission of such offence no further condition is required to be satisfied by the Police Officer. Therefore, Police Officer/Investigating Officer is empowered to arrest the offender or the suspect for proper investigation of the offence as provided under Section 41 read with Section 157 Cr.P.C.::: Downloaded on - 04/06/2022 20:03:15 :::CIS
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22. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Arrest of an offender during investigation, as discussed supra, is duly prescribed in Cr.P.C.
.
23. At the same time, Cr.P.C. also contains Chapter XXXIII, providing provision as to bail and bonds, which empowers the Magistrate, Sessions Court and High Court to grant bail to a person arrested by the Police/Investigating Officer in accordance with provisions contained in this Chapter. This Chapter also contains Section 438 empowering the Court to issue directions for grant of bail to a person apprehending his arrest. Normally, such bail is called as "Anticipatory Bail".
Scope and ambit of law on Anticipatory Bail has been elucidated by the Courts time and again.
24. Initially, provision for granting Anticipatory Bail by the court was not in the Cr.P.C., but on the recommendation of the Law commission of India in its 41st Report, the Commission had pointed out necessity for introducing a set provision in the Cr.P.C. enabling the High Court and Court of Session to grant Anticipatory Bail, 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. It was also observed by the Commission that with the accentuation of political rivalry, this tendency was showing signs and steady increase and further that where there are reasonable grounds for holding that the 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 to submit to custody, remain in prison for some days and then apply for bail. On the basis of these recommendations, provision of Section 438 Cr.P.C. was included in Cr.P.C. as an antidote for preventing arrest and detention in false case. Therefore, interpretation of Section 438 Cr.P.C., in larger public interest, has been done by the Courts by reading it with Article 21 of the Constitution of India to keep arbitrary and unreasonable limitations on personal liberty at bay. The essence of mandate of Article 21 of the Constitution of India is the basic concept of Section 438 Cr.P.C.
25. Section 438 Cr.P.C. empowers the Court either to reject the application forthwith or issue an interim order for grant of Anticipatory Bail, at the first instance, after taking into ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...28...
consideration, inter alia, the factors stated in sub-section (1) of Section 438 Cr.P.C. and in case of issuance of an interim order for grant of Anticipatory Bail the application shall be finally heard by the Court after giving reasonable opportunity of being heard to the Police/ Prosecution. Section 438 Cr.P.C.
.
prescribes certain factors which are to be considered at the time of passing interim order for grant of Anticipatory Bail amongst others, but no such factors have been prescribed for taking into consideration at the time of final hearing of the case. Undoubtedly, those factors which are necessary to be considered at the time of granting interim bail are also relevant for considering the bail application at final stage.
26. A balance has to be maintained between the right of personal liberty and the right of Investigating Agency to investigate and to arrest an offender for the purpose of investigation, keeping view various parameters as elucidated by the court in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 and Sushila Aggarwal & others v. State (NCT of Delhi) & another, (2018) 7 SCC 731 cases and also in other pronouncements referred by learned counsel for CBI.
27. The Legislature, in order to protect right of the Investigating Agency and to avoid interference of the Court at the stage of investigation, has deliberately provided under Section 438 Cr.P.C. that High Court and the Court of Session are empowered to issue direction that in the event of arrest, an offender or a suspect shall be released on bail. The Court has no power to issue direction to the Investigating Agency not to arrest an offender. A direction under Section 438 Cr.P.C. is issued by the Court, in anticipation of arrest, to release the offender after such arrest. It is an extraordinary provision empowering the Court to issue direction to protect an offender from detection. Therefore, this power should be exercised by the Court wherever necessary and not for those who are not entitled for such intervention of the Court at the stage of investigation, for nature and gravity of accusation, their antecedents or their conduct disentitling them from favour of Court for such protection.
28. Where right to investigate, and to arrest and detain an accused during investigation, is provided under Cr.P.C., there are provisions of Articles 21 and 22 of the Constitution of India, guaranteeing protection of life and personal liberty as well as against arrest and detention in certain cases. It is well settled that interference by the Court at the investigation ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...29...
stage, in normal course, is not warranted. However, as discussed supra, Section 438 Cr.P.C. is an exception to general principle and at the time of exercising power under Section 438 Cr.P.C., balance between right of Investigating Agency and life and liberty of a person has to be maintained .
by the Courts, in the light of Fundamental Rights guaranteed under Articles 21 and 22 of the Constitution of India, but also keeping in mind interference by the Court directing the Investigating Officer not to arrest an accused amounts to interference in the investigation.
29. Though bail is rule and jail is exception. However, at the same time, it is also true that even in absence of necessity of custodial interrogation also, an accused may not be entitled for anticipatory bail in all eventualities. Based on other relevant factors, parameters and principles enumerated and propounded by Courts in various pronouncements, some of which have also been referred by learned counsel for CBI, anticipatory bail may be denied to an accused. Requirement of custodial interrogation is not only reason for rejecting bail application under Section 438 Cr.P.C.
30. Nature and gravity of offence, extent of involvement of petitioners, manner of commission of offence, antecedents of petitioners, possibility of petitioners fleeing from justice and impact of granting or rejecting the bail on society as well as petitioner, are also amongst those several relevant factors which may compel the Court to reject or accept the bail application under Section 438 Cr.P.C. It is not possible to visualize all factors and enlist them as every case is to be decided in its peculiar facts and circumstances."
22. From the material placed before me and submissions made by learned counsel for the parties, I am of the considered opinion that it is not a case where ex-facie no case is made out at all against the petitioners. For role of the petitioners, as has come in the suicidal note, as well as reported by the Investigating Agency, it cannot be said to be totally false and, therefore, in present case accusation cannot ::: Downloaded on - 04/06/2022 20:03:15 :::CIS Cr.MP(M) Nos.1166 & 1172 of 2022 ...30...
be said to have been made with object to injuring or humiliating the petitioners by having them so arrested without any cause. Investigation in present case is at initial stage.
.
23. Without commenting upon the merits of the rival contentions, but taking into consideration nature and gravity of offence, initial stage of investigation, and the factors and parameters to be considered at the time of adjudicating an application for anticipatory bail, as propounded by the Courts, including the Supreme Court, balancing the personal interest vis-à-vis public interest, I am of the opinion that no case for grant of anticipatory bail is made out.
24. Hence, in view of the above discussion, the bail petitions are dismissed and disposed of.
The petitioners are permitted to produce copy of order downloaded from the High Court website before the authorities concerned and the said authorities shall not insist for certified copy of the order, however, passing of order may be verified from the High Court website or otherwise.
( Vivek Singh Thakur )
June 3, 2022(sd) Judge.
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