Gauhati High Court
Kamal Sabharwal vs The State Of Assam And Anr on 31 October, 2023
Page No.# 1/5
GAHC010248812023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1186/2023
KAMAL SABHARWAL
S/O LATE MAHINDER SABHARWAL,
R/O 6779 JC-33, SHYAMJI MAL LANE, NABI KARIM, PAHAR GANJ DELHI,
NEW DELHI, PIN- 110055.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY P.P., ASSAM.
2:KHUSHDEEP BANSAL
S/O SRI TEJ PAUL BANSAL
R/O W5/27
WESTERN AVENUE
SAINIK FARM
NEW DELHI
Advocate for the Petitioner : MR. A M BORA
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
31.10.2023 Heard Mr A M Bora, learned Senior Counsel for the petitioner, Sri Kamal Page No.# 2/5 Sabharwal and Ms S Jahan, learned Additional Public Prosecutor for the State of Assam/respondent No. 1.
2. It is submitted that the petitioner, herein is an informant who lodged the FIR against the opposite party No. 2, Sri Khushdep Bansal. The allegations in the FIR against the opposite party No. 2 and the other accused named in the FIR, inter alia, are that the petitioner and his associates were induced by the respondent No. 2 and his associates into believing that certain work was a Government contract and he was cheated through forgery and impersonation, including criminal breach of trust and huge amount of funds were siphoned off by improper use of the State Emblem of India. On receipt of the FIR, OC of CID Police Station registered a case being CID PS Case No. 16 of 2023, under Sections 120 B/255/256/257/259/260/406/417/419/420/463/465/466/468/471/472/ 474/506 IPC, read with Section 7 (1) and 7 (2) of the State Emblem of India (Prohibition of Improper Use) Act, 2005. The opposite party No. 2 was arrested at Delhi and produced before the learned Additional Chief Metropolitan Magistrate (South), District Court, Saket, New Delhi, on 20.10.2023. The opposite party No. 2 filed an application with prayer for transit bail and the learned Court at New Delhi, after hearing both sides, allowed the prayer for transit bail for seven days, vide order dated 20.10.2023, marked as Annexure-4 of the petition. The opposite party was directed to appear before the learned CJM, Guwahati, Kamrup (M), within seven days from 20.10.2023 and join the proceedings pending before the learned CJM, Guwahati, Kamrup (M). Meanwhile, the IO of the instant case made prayer for police remand of the opposite party No. 2, Sri Khushdeep Bansal.
3. It is contended that the opposite party No. 2, however, did not comply with the directions contained in the transit bail order dated 20.10.2023 and filed an application under Section 438 CrPC, instead. The petitioner has impugned the order dated 26.10.2023, passed by the learned Additional Sessions Judge No. 2, Kamrup (M), Guwahati, admitting the bail application for hearing and calling for the Case Diary for Page No.# 3/5 considering the pre-arrest bail prayer and the next date is fixed on 01.11.2023 for Case Diary.
4. It is submitted that the order dated 26.10.2023, passed by the learned Additional Sessions Judge No. 2, Kamrup (M), Guwahati in connection with AB No. 352 of 2023, is itself arbitrary on the face of the record and without jurisdiction because an already arrested person cannot be granted anticipatory bail under Section 438 CrPC.
5. It is averred that the learned trial court failed to consider that the opposite party No. 2 was granted bail, subject to the condition that he should appear before the learned CJM within seven days. The petitioner has prayed to set aside and quash the entire proceedings of AB No. 352 of 2023. The petitioner has relied on the decision of Hon'ble the Supreme Court in Shri Gurbaksh Singh Sibbia & Ors. -Vs- State of Punjab, reported in (1980) 2 SCC 565, wherein it has been observed that-
"Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under Section 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.
Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested.
Fifthly, the provisions of Section 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 offence or offences for which he is arrested, are concerned. 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."
6. The learned Additional Public Prosecutor, Ms S Jahan, has relied on the decision of the High Court of Gujarat at Ahmedabad in Teesta Atul Setalvad vs. State of Gujarat, in connection with Criminal Misc. Application (For Anticipatory Bail No. 4677 of 2014, with Criminal Misc. Application No. 4679 of 2014, with Criminal Misc. Application no. 4680 of 2014, decided on 12.02.2015, wherein it has been observed that-
Page No.# 4/5 "12. It appears from the materials on record that the applicants herein are permanent residents of Mumbai. The two Trusts referred to above are also registered at Mumbai. Therefore, apprehending arrest at the hands of the police in connection with the present FIR, the applicants first approached the High Court of Bombay by filing anticipatory bail application No. 14 of 2014. The High Court of Bombay, vide its order dated 10th January 2014, granted interim protection to the applicants. The matter was thereafter heard by a learned Single Judge of the Bombay High Court and the application for anticipatory bail was ordered to be rejected on 31st January 2014 substantially on the ground of territorial jurisdiction of the High Court of Bombay. However, the High Court of Bombay granted a transit bail for a period of four weeks to enable the applicants to file an appropriate application before the appropriate forum in the State of Gujarat.
13. It appears that the order of the Bombay High Court dated 31st January 2014 rejecting the anticipatory bail application was challenged before the Supreme Court by filing SLP. The SLP (Cri) No. 1770 of 2014 was disposed of by the Supreme Court vide order dated 24th February 2014, which reads as under:
"The matter relates to grant of Anticipatory bail under Section 438 of the Code of Criminal Procedure. The Bombay High Court vide impugned order dated 31st January, 2014 allowed the petitioners to move before appropriate Court in Gujarat for said relief and granted Transit Bail for four weeks so as to enable the petitioner to approach before the appropriate Court at Gujarat. Having heard the learned Counsel for the petitioners, we are not inclined to interfere with the impugned order.
However, taking into consideration the nature of the case and submission made on behalf of the petitioners, we extend the Transit Bail in favour of petitioners upto 31st March, 2014 so as to enable the petitioners to approach the appropriate Court in Gujarat. If such petition is filed, the appropriate Court in Gujarat will consider the same independently without being influenced by any observation made by the Bombay High Court."
7. The learned Senior Counsel for the petitioner has submitted that the learned Court below has exercised jurisdiction not vested on it by law and has exceeded jurisdiction by entertaining anticipatory bail application in respect of a person, who has already been Page No.# 5/5 arrested in connection with a criminal case registered against him. Section 438 of CrPC deals with grant of bail to persons apprehending arrest and when a person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence. But the Court below has exercised the powers without satisfying the applicability of the said provision of law. The accused-opposite party No. 2, herein was not apprehending arrest, but he was already arrested by the Police, for which anticipatory bail application should not have been entertained by calling for the Case Diary and should have been rejected at the threshold itself. As such, the impugned order dated 26.10.2023 and the entire proceeding therefrom are liable to be set aside and quashed.
8. I have considered the ratio of the decisions in the case of Shri Gurbaksh Singh Sibbia (supra) and Teesta Atul Setalvad (supra).
9. The petitioner has drawn out sufficient grounds for stay of the order dated 26.10.2023, passed in connection with AB No. 352 of 2023, pending in the Court of the learned Additional Sessions Judge No. 2, Kamrup (M), Guwahati.
10. The order dated 26.10.2023 is hereby stayed, until further order.
11. The learned Additional Public Prosecutor has already accepted notice on behalf of opposite party No. 1, so no formal notice is required to be issued to the opposite party No. 1. However, sufficient copies be furnished to the learned Additional Public Prosecutor, during the course of the day.
12. Issue notice to the opposite party No. 2, through registered post with A/D, returnable within 4 (four) weeks.
13. List the matter accordingly, after 4 (four) weeks.
JUDGE Comparing Assistant