Madras High Court
S. Saravanan Alias Saravanaperumal vs The State on 12 August, 1994
Equivalent citations: 1995CRILJ1999
ORDER
1. In Crime No. 546/94 of Tutirocin Central Police Station one Muruganantham is stated to have been attacked and murdered by A. 2 to A. 5 at 10.15 a.m. on 19-7-1994 at the instigation of petitioner Saravanan alias Saravanaperumal. Petitioner seeks anticipatory bail in the event of arrest for the alleged offences under Sections 147, 148, 341 and 302 I.P.C. Learned counsel for the petitioner submitted that recently the petitioner was nominated as the State Deputy Leader of the Youth Wing of a political party. Aggrieved over this, the District Secretary of the rival party has instigated the complainant respondent police to add the name of the petitioner in the complaint. According to learned counsel, though the occurrence is stated to have taken place at 10.15 a.m. F.I.R. has reached the Police station which is 2 k.m. away from the scene of crime only at 4.30 p.m. In fact, an earlier F.I.R. prepared at 11.00 a.m. was suppressed and in the second F.I.R. the name of the petitioner was added.
2. Learned Additional Public Prosecutor stoutly opposed the application pleading that the petitioner was present on the scene of crime and only on his instigation deceased was done to death. Besides, he was involved in Crime No. 77 of 1990 which related to an offence under Explosive Substances Act. History Sheet Suspect was opened against the petitioner on 19-2-1994 on the order of Inspector General and Intelligence and so he does not deserve an order granting anticipatory bail. However, learned Additional Public Prosecutor is unable to explain what is meant by History Sheet Suspect and what are the Departmental Rules relating to the opening of such sheet. While so, I do not think that aspect can stand in the way of the petitioner seeking his remedy. And it is not the case of the Additional Public Prosecutor that the antecedents of the petitioner are such that he will not be available for interrogation in case he is released on bail after arrest. Nor it is his contention that there is any likelihood of the petitioner fleeing from justice.
3. Learned Additional Public Prosecutor mainly resisted the application on the ground that in a grave crime like murder, the provisions of Section 438 Cr.P.C. could not be invoked to grant anticipatory bail. He placed reliance on Kiran Devi v. State of Rajasthan, 1988 SCC (Cri) 106. Wherein Their Lordships of the Apex Court have stated : "We are of the opinion that anticipatory bail should not have been granted in the murder case when the investigation was still incomplete. The proper course to adopt was to leave it to the trial Court to do the needful if and when the person concerned was arrested in the light of the record available at that point of time. The order passed by the High Court is, therefore, set aside ..... We have set aside the order under appeal on principle." Pokar Ram v. State of Rajasthan, was also cited in which the Supreme Court has held as follows (Paras 5 and 6) :
"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 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 pendencey of the appeal. 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 ..... When a person is accused of an offence of murder by the use of a fire arm, the Court has to be careful and circumspect in entertaining an application for anticipatory bail. Status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail. Anticipatory bail to some extent intrudes in the sphere of investigation of Crime and the Court must be cautious and circumspect in exercising such power of a discretionary nature."
4. Whereas, Thiru Karpagavinayagam, learned counsel for the petitioner drew my attention to the decision in Gurbaksh Singh v. State of Punjab, where a constitution bench of the Supreme Court had occasion to consider the scope of Section 438 Cr.P.C. In the said case of Supreme Court was considering the correctnes of the view taken by a Full Bench of the Punjab High Court which had rejected an application for anticipatory bail holding that the power under Section 438 Cr.P.C. is of an extraordinary character and must be exercised sparingly in exceptional cases only. And that the discretion under Section 438 Cr.P.C. cannot be exercised with regard to offences punishable with death or imprisonment for life unless the Court at that very stage is satisfied that such a charge appears to be false or groundless. The Supreme Court emphatically ruled that the view taken by the Full Bench of the Punjab High Court was erroneous. It found no warrant for reading into this provision the conditions subject to which bail can be granted under Section 437(1) of the Code. In the words of their lordships that section, while conferring the power to grant bail in cases of non-bailable offences, provides by way of an exception that a person accused or suspected of the commission of a non-bailable offence "shall not be so released" if there appears to be reasonable grounds for believing that he has guilty of an offence punishable with death or imprisonment for life. If it was intended that the exception contained in S. 437(1) should govern the grant of relief under Section 438(1), nothing would have been easier for the legislature than to introduce into the latter section, a similar provision. We have already pointed out the basis distinction between these two sections, Section 437 applies only after a person, who is alleged to have committed to non-bailable offence, is arrested or detained without warrant or appears or is brought before a court. Section 438 applies before the arrest is made and, in fact, one of the pre-conditions of its application is that the person, who applies for relief under it must be able to show that he has reason to believe that "he may be arrested", which plainly means that he is not yet arrested. The nexus which this distinction bears with the grant or refusal of bail is that if cases fall if under Section 437, there is some concreate data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In cases falling under Section 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing. The foundation of the belief spoken of in Section 437(1), by reason of which the court cannot release the applicant on bail is, normally, the credibility of the allegations contained in the First information Report. In the majority of cases falling under Section 438, that data will be lacking for forming the requisite belief. If at all the conditions mentioned in Section 438 are to be read into the provisions of Section 438, the transplantation shall have to be done without amputation. That is to say, on the reasoning of the High Court, Section 438(1) shall have to be read as containing the clause that the applicant "shall not" be released on bail "if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life." In this process one shall have overlooked that whereas, the power under Section 438(1) can be exercised if the High Court or the Court of Session "thinks fit" to do so, Section 437(1) does not confer the power to grant bail in the same wide terms. The expression "if it thinks fit", which occurs in Section 438(1) in relation to the power of the High Court or the Court of Session, is conspicuously absent in Section 437(1). We see no valid reason for re-writing Section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court and the Court of Session but, for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor 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."
5. The Supreme Court went on to observe in Gurbaksh Singh's case (1980 Cri LJ 1125) (SC) that 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 "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 some sort 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. Section 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 crime nor a shield against any and all kinds of accusations, likely or unlikely.
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 make out for grant in such relief. If cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.
Thirdly, the filing of a First Information Report as 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 Apex Court also did not approve of the dicta of the Full Bench of the Punjab and Haryana High Court that the petitioner must make out a special case for the exercise of the power to grant anticipatory bail. According to their Lordships, this virtually reduces the salutary power conferred by Section 438 to a dead letter. In this connection, they observe : "We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseable consequences of its use, is the hall-mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail."
7. We have to bear in mind that the decision in Kiran Devi v. State of Rajasthan, 1988 SCC (Cri) 106 relied on by learned Additional Public Prosecutor is that of a Division Bench while in Gurbaksh Singh v. State of Punjab, was rendered by a Constitution Bench of the Supreme Court. And there is no reference to the decision of the Constitution Bench in Kiran Devi's case. That decision is only to the effect that in that particular case in which the petitioner therein was proposed to be arrested on a charge of murder, the High Court should not have granted anticipatory bail. There no law was laid down to the effect that under Section 438 of the Code, the Court had no power of grant anticipatory bail where the petitioner seeking the same was likely to be arrested on a charge of murder. The Two Judges Bench of the Supreme Court decided the case on the facts of the said case and has not laid down the law to the contrary. In any event, it cannot prevail over the ratio of the Constitution Bench in the case of Gurbaksh Singh v. State of Punjab, . In I. Y. Chandra Earappa v. State of Karnataka, 1989 Cri LJ 2405 a Division Bench of the Karnataka High court has also taken the view that the ratio in Gurbaksh Singh's case decided by a Constitution Bench prevails and is binding on us.
8. In Pokar Ram v. State of Rajasthan, the Court does not lay down that Section 438 Cr.P.C. could not be invoked in a case of murder. Instead, the Specific direction there, is in such grave offences, the court has to be careful and circumspect in entertaining an application for anticipatory bail.
9. It is therefore seen that the scope of Section 438 of the Code had been fully expounded by the Supreme Court in the case of Gurbaksh Singh v. State of Punjab, (1980 Cri LJ 1125) and as per the ratio of the said decision even if a non-bailable offence alleged to have been committed by a person happens to be an offence of murder, the High court or the Sessions Court exercising its powers under Section 438 of the Code has the power to grant anticipatory bail and it is for the court to decide as to whether in a given case, the anticipatory bail should be granted or not.
10. We have already seen that as per the prosecution version, the only allegation against the present petitioner is that he was found instigating in the scene of crime. The delay pointed out by learned counsel for the petitioner in preferring the complaint is a factor to be taken into account in considering the prima facie involvement of the petitioner in the crime. Also taking into account the political rivalry alleged, I am of the view that it is a proper case where anticipatory bail can be granted with suitable conditions :
"Petitioner in the event of arrest, shall be enlarged on bail, on his executing a bond for a sum of Rs. 2,000/- (Rupees Two thousand only) with two sureties each for a like sum to the satisfaction of Judicial Magistrate No. 1, Tuticorin, subject to the condition that the petitioner should reside at Madras and report before Flower Bazar Police Station daily at 9.00 a.m. and 5.00 p.m. until further orders.
11. Petition allowed.