Bombay High Court
Mr. Ashik Rameshchandra Shah vs State Of Maharashtra on 4 December, 2009
Author: V.M. Kanade
Bench: V. M. Kanade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 5307 OF 2009
1. Mr. Ashik Rameshchandra Shah
2. Mrs. Darshana Ashik Shah
3. M/s Dhavan Spinning & Knitting
Ltd.,
Through its Director
Mr. Ashik Rameshchandra Shah .... Applicants.
V/s
State of Maharashtra
(Tardeo Police Station)
ig .... Respondent.
----
Mr. Adhik Shirodkar, Senior Counsel i/b Mr. Rajendra
Shirodkar, Mr. Archit Sakhalkar & Mr Nihar Ghag for the
applicants.
Mrs. S.D. Shinde, APP for the State.
----
CORAM: V. M. KANADE, J.
DATE : 4TH DECEMBER, 2009
P.C.:-
1 Heard the learned Senior Counsel appearing on behalf
of the applicants and the learned APP appearing on behalf
of the State.
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2 On 24/11/2009, Sessions Court directed the applicants
to remain present before the Court on 27/11/2009.
However, oral prayer made by the applicants for protection
from arrest till 27/11/2009 was rejected. On 25/11/2009,
application for anticipatory bail was rejected in view of
application for withdrawal of the anticipatory bail application
filed by the applicants vide Exhibit-8. Applicants, therefore,
apprehending arrest by the police were constrained to file
this application in this Court
3. An interesting question, therefore, which has been
raised before this Court is whether power of the Sessions
Court in Maharashtra to direct the applicant - accused to
remain present can be exercised without taking into
consideration the application for interim protection and the
manner, method and circumstances in which the said power
has to be exercised. Before taking into consideration the
facts of the present case, therefore, it would be relevant to
take into consideration the Maharashtra Amendment. In
1993, the State Government was pleased to amend section
438 of the Code of Criminal Procedure which is a Central Act
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and the provisions viz. sub-sections (3) and (4) were
inserted. The amended section 438 of the Criminal
Procedure Code reads as under:-
"438. Direction for grant of bail to person
apprehending arrest.- (1) When any person has
reason to believe that he may be arrested on
an accusation of having committed a non-
bailable offence, he may apply to the High
Court or the Court of Session for a direction
under this section that in the event of such
arrest, he shall be released on bail, and that
Court may after taking into consideration, inter
alia, the following factors:-
(i) the nature and gravity or seriousness
of the accusation as apprehended by the
applicant;
(ii) the antecedents of the applicant
including the fact as to whether he has, on
conviction by a Court, previously undergone
imprisonment for a term in respect of any
cognizable offence;
(iii) the likely object of the accusation to
humiliate or malign the reputation of the
applicant by having him so arrested; and
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(iv) the possibility of the applicant, if
granted anticipatory bail, fleeing from justice,
either reject the application forthwith or issue
an interim order for the grant of anticipatory
bail;
Provided that, where the High Court, or as
the case may be, the Court of Session has not
passed any interim order under this sub-
section or has rejected the application for
grant of anticipatory bail, it shall be open to an
officer in charge of a police station to arrest,
without warrant the applicant on the basis of
the accusation apprehended in such
application.
(2) Where the High Court, or as the case
may be, the Court of Session, considers it
expedient to issue an interim order to grant
anticipatory bail under sub-section (1) the
Court shall indicate therein the date on which
the application for grant of anticipatory bail
shall be finally heard for passing an order
thereon, as the Court may deem fit; and if the
Court passes any order granting anticipatory
bail, such order shall include, inter alia, the
following conditions, namely :-
(i) that the applicant shall make himself
available for interrogation by a police officer as
and when required;
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(ii) that the applicant shall not, directly or
indirectly, make any inducement, threat or
promise to any person acquainted with the
facts of the accusation against him so as to
dissuade him from disclosing such facts to the
Court or to any police officer;
(iii) that the applicant shall not leave India
without the previous permission of the Court;
and
(iv) such other conditions as may be
imposed under sub-section (3) of section 437
as if the bail was granted under that section.
(3) Where the Court grants an interim order
under sub-section (1), it shall forthwith cause a
notice, being not less than seven days' notice,
together with a copy of such order to be
served on the Public Prosecutor and the
Commissioner of Police, or as the case may be,
the concerned Superintendent of Police, with a
view to give the Public Prosecutor a reasonable
opportunity of being heard when the
application shall be finally heard by the Court.
(4) The presence of the applicant seeking
anticipatory bail shall be obligatory at the time
of final hearing of the application and passing
of final order by the Court, if on an application
made to it by the Public Prosecutor, the Court
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considers such presence necessary in the
interest of justice.
(5) On the date indicated in the interim order
under sub-section (2), the Court shall hear the
Public Prosecutor and the applicant and after
due consideration of their contentions, it may
either confirm modify or cancel the interim
order made under sub-section (1)."
The distinguishing feature, therefore, so far as State of
Maharashtra is concerned is that if an application is made by
the Public Prosecutor to the Court seeking an order for
securing presence of the applicant then the Court can pass
an order after taking into consideration the fact that such
presence is necessary in the interest of justice. The question
which falls for consideration is : whether, provisions of sub-
sections (3) & (4) of section 438 have to be read together?
In other words, whether it is open for the Court to direct the
accused to remain present if such a request is made by the
Public Prosecutor and refuse interim order to the accused.
4. Shri Adhik Shirodkar, the learned Senior Counsel
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appearing on behalf of applicants submitted that it is a well
settled position in law that power which has to be exercised
by the Sessions Courts and by the High Courts is concurrent
power and that by virtue of practice which has been
prevalent and by virtue of various judgments of various High
Courts and Supreme Court, it has now been laid down that
the applicant - accused has to first approach the Sessions
Court and, thereafter, he can approach the High Court and if
such an application is made in the High Court, the said
application has to be treated as fresh application. He
submitted that in exceptional circumstances, the applicant
may choose to apply directly to High Court under certain
exceptional circumstances, otherwise the normal rule is to
first approach the Sessions Court. In support of the said
submission, he invited my attention to the judgments of
various Courts which I shall refer to at the latter stage. He
submitted that, therefore, as a result of the law laid down by
the various courts including this court, applicant has no
other option buy to approach the Sessions Court. He
submitted that, however while exercising power under sub-
section (4) of section 438 (inserted by Maharashtra
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Amendment Act 24 of 1993 w.e.f. 28-7-2993) giving direction
to the accused to remain present in Court, the Court has to
consider the question of granting interim relief so as to
protect him when he appears before the court, otherwise in
view of various judgments of this Court and the Apex Court,
it is open for the Investigating Officer to arrest the accused
without warrant in cases where offence is a cognizable
offence, if no protection has been granted by the court. He
submitted that, therefore, if no interim protection is granted
by the Court and accused is directed to remain present in
court, the Investigating Officer can wait for the applicant at
the gate of the court and pounce upon him to arrest him
since he does not have interim protection. It is therefore
submitted that the very purpose of provisions of section 438
would be defeated if interim protection is not granted to the
accused and, at the same time, he is directed to remain
present in court. He submitted that while considering the
application made by the prosecution seeking presence of the
applicant in court, the court cannot act in a mechanical
manner and has to consider whether presence of the
accused is necessary in the interest of justice. He further
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submitted that the words 'interest of justice' have not been
defined in the Act nor the word 'justice' and, therefore, the
expression "interest of justice" would mean interest not only
of the prosecution in carrying out investigation pursuant to
the power given to them under the law but also the interest
of the accused for the purpose of securing anticipatory bail
which right has been given to him under section 438. The
learned Senior Counsel then invited my attention to the
judgment of the Constitutional Bench of the Apex Court in
Gurubaksh Singh Sibbia vs. State of Punjab1. He submitted
that the Constitutional Bench of the Apex Court also has laid
down that the Sessions Court or the High Court has power to
grant interim protection. He submitted that, in the present
case, the learned Sessions Court had erred in not granting
interim protection to applicants and, at the same time,
directing applicants to remain present in court on the next
day. Another submission was made by the learned Senior
Counsel that the applicant is entitled for further protection in
the event of rejection of the application for anticipatory bail
and in support of the said submission he relied upon the
judgment of this Court in C.P Nagia, Assistant Collector of
1 (1980) 2 SCC 566
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Customs, Bombay v. Omprakash Aggarwal and another 1.
5. The learned APP appearing on behalf of the State, on
the other hand, submitted that the Sessions Court had a
discretion to consider the application made by the Public
Prosecutor for the purpose of securing presence of the
applicant. She submitted that the said provision has been
incorporated in order to ensure that the accused is available
for interrogation and that he does not abscond and,
therefore, by virtue of such order, his presence is secured so
that after securing his presence, the court can take into
consideration whether the applicant is entitled to get an
order of anticipatory bail or not. She submitted that if such
an order is not passed the process of investigation would be
hampered and valuable time would be lost during which time
the applicant may get a chance to tamper with the evidence
or to remain away throughout the process of investigation.
She submitted that the power to consider the application for
interim protection and the power to consider the application
of the prosecution securing presence of the accused are two
different aspects and, therefore, they are not dependent on
1 1994 CRI.L.J. 2160
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each other.
6 After having heard the learned Senior Counsel
appearing on behalf of applicants and the learned APP
appearing on behalf of the State and after taking into
consideration various judgments on which reliance is placed
by the learned Senior Counsel appearing on behalf of
applicants and from the conspectus of cases which have
been cited before this Court, I am of the view that section
438 lays down the manner and method and circumstances
under which order of pre-arrest can be passed or not passed.
In that sense it is a self-contained Code and a scheme in
itself and these provisions, therefore, have to be read as a
whole and it cannot be said that provisions of sub-sections
(3) & (4) of section 438 are mutually exclusive and operate
in different ways. The Apex Court in Gurubaksh Singh Sibbia
(supra) has observed in paragraphs 7, 26, 19, 16, 17, 42 and
43 as under:-
"(7) The facility which Section 438 affords
is generally referred to as 'anticipatory
bail', an expression which was used by the
Law Commission in its 41st Report. Neither
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the section nor its marginal note so
describes it but, the expression
'anticipatory bail' is convenient mode of
conveying that it is possible to apply for
bail in anticipation of arrest. Any order of
bail can, of course, be effective only from
the time of arrest because, to grant bail,
as stated in Wharton's Law Lexicon is to
'set at liberty a person arrested or
imprisoned, on security being taken for his
appearance'. Thus, bail is basically
release from restraint, more particularly,
release from the custody of the police.
The act of arrest directly affects freedom
of movement of the person arrested by
the police, and speaking generally, an
order of bail gives back to the accused
that freedom on condition that he will
appear to take his trial. Personal
recognisance, suretyship bonds and such
other modalities are the means by which
an assurance is secured from the accused
that though he has been released on bail,
he will present himself at the trial of
offence or offences of which he is charged
and for which he was arrested. 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. Police custody is a inevitable
concomitant of arrest for non-bailable
offences. An order of anticipatory bail
constitutes, so to say, an insurance
against police custody following upon
arrest for offence or offences in respect of
which the order is issued. In other words,
unlike a post-arrest order of bail, it is pre-
arrest legal process which directs that if
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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. Section 46(1) of
the Code of Criminal Procedure which
deals with how arrests are to be made,
provides that in making the arrest, the
police officer or other person making the
arrest "shall actually touch or confine the
body of the person to be arrested, unless
there be a submission to the custody by
word of action". A direction under Section
438 is intended to confer conditional
immunity from his 'touch' or
confinement."
"(26) We find a great deal of substance in
Mr. Tarkunde's submission that since
denial of bail amounts to deprivation of
personal liberty, the court should lean
against the imposition of unnecessary
restrictions on he scope of Section 438,
especially when no such restrictions have
been imposed by the legislature in the
terms of that section. Section 438 is a
procedural provision which is concerned
with the personal liberty of the individual,
who is entitled to the benefit of the
presumption of innocence since he is not,
on the date of his application for
anticipatory bail, convicted of the offence
in respect of which he seeks bail. An over-
generous infusion of constraints and
conditions which are not to be found in
Section 438 can make its provisions
constitutionally vulnerable since the right
to personal freedom cannot be made to
depend on compliance with unreasonable
restrictions. The beneficent provision
contained in Section 438 must be saved,
not jettisoned. No doubt can linger after
the decision in Maneka Gandhi, [Maneka
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Gandhi v. Union of India, (1978) 1 SCC
248] that in order to meet the challenge of
Article 21 of the Constitution, the
procedure established by law for depriving
a person of his liberty must be fair, just
and reasonable. Section 438, in the form
in which it is conceived by the legislature,
is open to no exception on the ground that
it prescribes a procedure which is unjust or
unfair. We ought, at all costs, to avoid
throwing it open to a Constitutional
challenge by reading words in it which are
not to be found therein."
"19. A great deal has been said by the
High Court on the fifth proposition framed
by it, according to which, inter alia, the
power under Section 438 should not be
exercised if the investigating agency can
make a reasonable claim that it can
secure incriminating material from
information likely to be received from the
offender under section 27 of the Evidence
Act. According to the High Court, it is the
right and the duty of the police to
investigate into offences brought to their
notice and, therefore, courts should be
careful not to exercise their powers in a
manner which is calculated to cause
interference therewith. It is true that the
functions of the judiciary and the police
are in a sense complementary and not
overlapping. As observed by the Privy
Council in King-Emperor v. Khwaja Nazir
Ahmed [1943-44) 71 IA 203 : AIR 1945 PC
18 : 46 Cri LJ 413]
Just as it is essential that every one
accused of a crime should have free
access to a court of justice so that he
may be duly acquitted if found not
guilty of the offence with which he is
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charged, so it is of the utmost
importance that the judiciary should
not interfere with the police in matters
which are within their province and into
which the law imposes on them the
duty of inquiry ..... The functions of the
judiciary and the police are
complementary, not overlapping, and
the combination of the individual liberty
with a due observance of law and order
is only to be obtained by leaving each
to exercise its own function,. . .
But these remarks, may it be
remembered, were made by the Privy
Council while rejecting the view of the
Lahore High Court that it had inherent
jurisdiction under the old Section 561-A,
Criminal Procedure Code, to quash all
proceedings taken by the police in
pursuance of two first information reports
made to them. An order quashing such
proceedings puts an end to the
proceedings with the inevitable result
that all investigation into the accusation
comes to a halt. Therefore, it was held
that the court cannot, in the exercise of
its inherent powers, virtually direct that
the police shall not investigate into the
charges contained in the FIR. We are
concerned here with a situation of an
altogether different kind. An order of
anticipatory bail does not in any way,
directly or indirectly, take away from the
police their right to investigate into
charges made or to be made against the
person released on bail. In fact, two of
the usual conditions incorporated in a
direction issued under Section 438(1) are
those recommended in sub-section (2)(i)
and (ii) which require the applicant to
cooperate with the police and to assure
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that he shall not tamper with the
witnesses during and after the
investigation. While granting relief under
Section 438(1), appropriate conditions
can be imposed under Section 438(2) so
as to ensure an uninterrupted
investigation. One of such conditions 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 discovery. Besides, if and when the
occasion arises, it may be possible for the
prosecution to claim the benefit of Section
27 of the Evidence Act in regard to a
discovery of facts made in the principle
stated by this Court in State of U.P. v.
Deoman Upadhyaya [(1961) 1 SCR,14,
26 : AIR 1960 1125 : 1960 Cri LJ 1504] to
the effect that when a person not in
custody approaches a police officer
investigating an offence and offers to give
information leading to the discovery of a
fact, having a bearing on the charge
which may be made against him, he may
appropriately be deemed so have
surrendered himself to the police. The
broad foundation of this rule is stated to
be that Section 46 of the Code of Criminal
Procedure does not contemplate any
formality before a person can be said to
be taken in custody : submission to the
custody by word or action by a person is
sufficient. For similar reasons, we are
unable to agree that anticipatory bail
should be refused if a legitimate case for
the remand of the offender to the police
custody under section 167(2) of the Code
is made out by the investigating agency."
"16. A close look at some of the rules in
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the eight-point code formulated by the
High Court will show how difficult it is to
apply them in practice. The seventh
proposition says:
The larger interest of the public
and State demand that in serious
cases like economic offences
involving blatant corruption at the
higher rungs of the executive and
political power, the discretion under
Section 438 of the Code should not
be exercised.
"17. How can the court, even if it had a
third eye, assess the blatantness of
corruption at the stage of anticipatory
bail? And will it be correct to say that
blatantness of the accusations will
suffice for rejecting the bail, if the
applicant's conduct is painted in colours
too lurid to be true? The eighth
proposition rule framed by the High
Court says :
Mere general allegations of mala
fides in the petition are inadequate.
The court must be satisfied on
materials before it that the
allegations of mala fides are
substantial and the accusation
appears to be false and groundless.
Does this rule mean, and that is the
argument of the learned Additional
Solicitor-General, that anticipatory bail
cannot be granted unless it is alleged
(and naturally, also shown, because
mere allegation is never enough) that
the proposed accusation are mala fide?
It is understandable that if mala fides
are shown, anticipatory bail should be
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granted in the generality of cases. But it
is not easy to appreciate why an
application for anticipatory bail must be
rejected unless the accusation is shown
to be mala fide. Thus, truly, is the risk
involved in framing rules by judicial
construction. Discretion, therefore,
ought to be permitted to remain in the
domain of discretion, to be exercised
objectively and open to correction by the
higher courts. The safety of
discretionary power lies in this twin
protection which provides a safeguard
against its abuse."
"42. There was some discussion before
us on certain minor modalities regarding
the passing of bail orders under Section
438(1). Can an order of bail be passed
under the section without notice to the
Public Prosecutor ? It can be. But notice
should issue to the Public Prosecutor or
the Government Advocate forthwith and
the question of bail should be re-
examined in the light of the 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. Should the
operation of an order passed under
Section 438(1) be limited in point of
time? Not necessarily. The court may, if
there are reasons for doing so, limit the
operation of the order to short period
until after the filing of an 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
reasonably short period after the filing of
the FIR as aforesaid. But this need not
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be followed as an invariable rule. The
normal rule should be not to limit the
operation of the order in relation to a
period of time."
"43. During the last couple of years this
Court, while dealing with appeals
against orders passed by various High
Courts, has granted anticipatory bail to
many a person by imposing conditions
set out in Section 438(2)(i), (ii) and (iii).
The court has, in addition, directed in
most of those cases that (a) the
applicant should surrender himself to
the police for a brief period
ig if a
discovery is to be made under Section
27 of the Evidence Act or that he should
be deemed to have surrendered himself
if such a discovery is to be made. In
certain exceptional cases, the court has,
in view of the material placed before it,
directed that the order of anticipatory
bail will remain in operation only for a
week or so until after the filing of the FIR
in respect of matters covered by the
order. These orders, on the whole, have
worked satisfactorily, causing the least
inconvenience to the individuals
concerned and least interference with
the investigational rights of the police.
The court has attempted through those
orders to strike a balance between the
individual's right to personal freedom
and the investigational rights of the
police. The appellants who were refused
anticipatory bail by various courts have
long since been released by this Court
under Section 438(1) of the Code."
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Therefore, the Apex Court has laid down the power and
scope of the power which has to be exercised by the Courts
under section 438. The Apex Court also has observed that
the Court has power to grant interim protection when it
comes to the conclusion that it is not possible to decide the
case immediately and during such time appropriate interim
orders can be passed.
7. Similarly, in view of various judgments relied upon by
the parties, it is apparent that (i) the power under section
438 is concurrent power which is vested in High Court and
Sessions Court. However, by virtue of judicial precedents, it
has now been held that applicant has to first approach the
Sessions Court and, thereafter, the High Court and (ii) after
the order is passed by the Sessions Court applicant has a
right to approach the High Court and if such an application is
made, High Court has to consider that application as a fresh
application and consider the application on merits and in
accordance with law. That being the position, applicant has
no other option but to approach the Sessions Court unless
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under exceptional circumstances he approaches the High
Court first and the High Court, after recording its reasons,
entertains such application which is directly filed, otherwise
the normal procedure is to approach the Sessions Court first.
This being the position, it is expected that when such an
application is filed before the Sessions Court, the Sessions
Court may decide the application for interim protection and
if it comes to the conclusion that prima facie case is made
out by the applicant, it can grant an order of interim
protection but if the court comes to the conclusion that the
accused is not entitled to seek an order of interim protection,
it may reject the said application in which case the applicant
may have an option to approach the higher court. The
question, therefore, which is posed before this Court is :
whether, while exercising power under sub-section (4) of
section 438 directing the accused to remain present in
Court, the Court can refuse to entertain the application for
interim relief and, yet, direct him to appear before the court?
In my view, if such a course of action is undertaken by the
court, in that case, provisions of section 438 would be
rendered nugatory and the very purpose for which the said
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provision has been incorporated would be frustrated. The
legislature in its wisdom thought it fit to incorporate the said
provision in the Code after it realized that on many
occasions false and frivolous cases are filed against
individuals, either with a view to defame such persons or on
account of political or business vendetta or for the purpose
of setting personal scores and, therefore, in order to give
protection to such persons, the legislature thought it fit to
incorporate the said provision. The Apex Court in Gurbaksh
Singh Sibbia (supra) held that in a fit case, even if an
application is filed where the applicant is accused of an
offence punishable under section 302, such an application
can be entertained and, therefore, the Apex Court itself has
laid down the law that there is no bar for entertaining an
application for anticipatory bail, unless it is shown by the
prosecution that the application is not bonafide and that the
applicant is not sought to be involved or implicated in a false
case. By virtue of amendment to section 438, further
guidelines have been laid in the section itself which is
evident from section 438(1)(i) to (iv). The said sub-section
(1) of section 438 also specifically states that the court, after
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taking into consideration the factors given in the said
provision, has to either reject the application forthwith or
issue an interim order granting anticipatory bail. The court,
therefore, is not expected to direct the accused to remain
present in court while exercising its power under sub-section
(4) and, at the same time, not consider the application for
interim relief. It can either refuse interim relief and reject
the application at the threshold or grant interim protection
and thereafter consider whether in the interest of justice it is
necessary to secure presence of the accused on the
application being made by the prosecution.
8. So far as words 'interest of justice' used in sub-section
(4) of section 438 are concerned, the said term obviously
means the interest not only of the prosecution but also of
the accused of seeking fair and proper administration of
criminal justice and giving a fair opportunity to the applicant
- accused of securing substantive right which accrues in his
favour by virtue of section 438. Provisions of sections
438(1), (3) and (4), therefore have to be read together and
they cannot be read in isolation.
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9 It would be profitable to reproduce the observations
made by the the three learned Single Judges of this Court
with regard to power of the court to be exercised under
section 438. In State of Maharashtra v. Kachrusingh
Santaramsingh Rajput and Anr.1 learned Single Judge had an
occasion to consider this aspect and the learned Single Judge
has observed in paras 7, 8, 9 and 10 as under:-
"7. It was thought for some time that if a
person who approached the Court for
anticipatory bail loses his cause, he could
not be arrested or he should not be
arrested or he should be arrested
immediately. Proviso to sub-section (1)
now removes the doubt on that point by
providing that where the High Court or the
Court of Sessions, as the case may be has
not passed any interim order under that
sub-section, or, has rejected outright the
application for grant of anticipatory bail, it
would be open to the officer-in-charge of a
Police Station to arrest, without warrant,
the applicant on the basis of the accusation
apprehended in such application i.e the
application preferred by the person seeking
anticipatory bail. It is, thus, clear that the
person approaching the Court for
anticipatory bail under section 438(1) is not
given any absolute protection as such, by
the section till he has secured some
protection from the Court, either in the
1 1994(3) BomCR 348
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25
form of anticipatory bail or, in the form of
an interim order of protection or, interim
order for bail."
"8. As sub-section (1) of section 438 itself
contemplated an order for interim
anticipatory bail, a provision had to be
made immediately about the grant of such
interim relief. The sub-section (2) of
section 438, therefore, considers that
eventuality and provides that where the
High Court or the Sessions Court, as the
case may be, considers it expedient to
issue an interim order to grant anticipatory
bail, the Court shall comply with the
requirements which are indicated in that
sub-section, namely:-
(I) Indicate in the order, the date on which
application for grant of anticipatory bail
shall be finally heard for passing an order
thereon.
(II) At the time of passing orders for
interim anticipatory bail, such order shall
include, inter alia, the four conditions
indicated in the said section, namely :-
(i) That the applicant shall make himself
available for interrogation by a Police
Officer as and when required;
(ii) That the applicant shall not directly or
indirectly make any inducement, threat or
promise to any other person acquainted
with the facts of the accusations against
him so as to dissuade him from disclosing
such facts to be Court or to any officer.
(iii) That the applicant shall not, leave
India without the previous permission of
the Court; and
(iv) Such other conditions as may be
imposed under sub-section (3) of section
437 as if the bail was granted under that
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section.
The provisions of this sub-section (2) of
section 438 of the Code of Criminal
Procedure, therefore, make it clear that the
object of grant of anticipatory bail or, a
protection, during the pendency of a
petition for such anticipatory bail should
not, in any event, stall the investigation,
stall the interrogation of the accused, or
impliedly or otherwise give liberty to the
accused to be away from the due process
of law. A duty is cast on the Court, now
explicitly, that the Court shall ensure,
whenever it extends any sort of protection
to the accused approaching it for
protection, that he shall not dodge the legal
process and he shall co-operate with the
Investigating Officer in the matter of
investigation of the offence."
"9. An eventuality might arise that the
Public Prosecutor appearing on behalf of
the State before a particular Court, was not
able to say anything in the matter of grant
of interim bail for want of instructions or
adequate instructions. He might ask from
the Court some accommodation, some time
to enable him to put before the Court the
reasons for which the State wanted to
resist an application made for anticipatory
bail. In such an eventuality, ordinarily, the
Court shall not leave the applicant-accused
without extending the protection of the
Court to him, may it be temporary. Where
the Court decides to grant such an interim
protection to a particular accused /
applicant, it is now made obligatory on the
Court to issue forthwith a notice to the
Public Prosecutor and the Commissioner of
Police or the Superintendent of Police, "as
the case may be" being not less than seven
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27
days' notice (with a view to give the Public
Prosecutor a reasonable opportunity of
being heard when the application shall be
finally heard by the Court). This provision
has a very specific object, namely, to give
the prosecution some reasonable
opportunity to place before the Court its
case in the context for prayer for
anticipatory bail made by the applicant
before it. In some cases, it may so happen
that the Public Prosecutor may urge before
the Court that the State would not arrest a
particular accused for a day or two and that
the say would be put in before the Court as
early as possible, within a day or two. In
such an eventuality, the Court may not
pass any order for anticipatory bail or for
grant of interim protection. The provisions
contained in sub-sections (2) and (3) do not
make it obligatory on the Court to pass
necessarily an order for interim bail or for
an interim protection, even in cases where
the State undertakes not to arrest the
particular person for a day or two, or till
they are able to put up their case before
the Court."
"10. It is this point which strikes at the
root of the submission, which was
advanced on behalf of the respondents
before us. If at all in the circumstances as
indicated in the preceding paragraph the
Court refrains from passing any interim
order, would it man that the Court wold not
require, if so prayed for in appropriate
cases, the petitioner to remain present in
the Court at the time of final hearing? The
answer has got to be in the negative. Sub-
section (4), in that respect, stands on its
own. It provides that the presence of an
applicant seeking an anticipatory bail, shall
be obligatory at the time of final hearing of
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the application and passing of the final
order by the Court, "if on an application
made to it by the Public Prosecutor the
Court considers such presence necessary in
the interest of justice". Thus, the presence
of the accused may be directed by the
Court on an application of the Public
Prosecutor and only if the Court considers
such presence necessary in the interest of
justice. Again, sub-section (4) did not put
limitation on the power of the Court to
direct suo-motu in the interest of justice, a
particular accused to remain present in the
Court at the time of final hearing of the
application. It is not necessary to read sub-
section (4) of section 438 as rigidly as that.
It is a power to be exercised by the Court in
the interest of justice. The justice does not
always lie in protecting the person who is
an accused. The justice also lies in
ensuring, in appropriate cases where the
State exercises its power of investigation
strictly according to law, in not creating
hindrance in the exercise of the lawful
powers of the State. We do not think that
sub-section (4) of section 438 prescribes or
imposes any limitation on the power of the
Court, to direct the accused to remain
present in the Court at the time of final
hearing, whenever it thinks such presence
necessary in the interest of justice."
"14. Mr. Loya was right, to some extent, in
contending that the very purpose of
introducing section 438 in the Code of
Criminal Procedure and of substituting the
said section in the new form was to strike a
balance between the rights of the State to
investigate through police into the offences
according to the established procedure of
law and the individual liberties of a person
against whom accusation of serious crimes
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were made. Neither the old section 438
nor the section newly substituted in its
place, started with a non-obstante clause.
Both the sections do not provide that the
provisions contained therein are, over and
above, the common law as incorporated in
Chapter XII of the Code of Criminal
Procedure, which defines the powers of the
police to investigate into the offences.
True it is that, at a criminal trial, there is a
presumption of innocence in favour of an
accused person, but all the same there is
no presumption of law that every activity of
an individual is innocent or, that if the
accusations are made as per law against
the person, the police are to start with a
presumption that the accusations are false
and no offence has taken place. Again, it is
not the intention of the law to protect a
person who had indulged in criminal
activity or, who is alleged to have
committed a crime. The provisions
contained in old section 438 or the section
now substituted in its place, are not
intended to protect any person who is
accused of a serious offence. Indeed, the
provisions are incorporated in the Statute-
Book for protecting a person who has, in
fact, not committed any crime or, who has
not been indulging in any criminal activity
and yet on account of some extraneous
reasons, he is being implicated in a false
accusation. It may be that, in a given case,
the investigation is not honest or is not
subjected to process of law for reasons
which are not good at law, or in a manner,
which is not warranted by law. It is only in
these last mentioned contingency that the
individual liberty must be fully protected
according to law. Mere apprehension of an
arrest by a person does not, by itself, afford
that person has right to claim a protection
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under the provisions contained in section
438 of the Code of Criminal Procedure. Just
as section 157(1) of the Code casts an
obligation on the police to (a), proceed to
the spot (b) investigate the facts and
circumstances of the case and (c) if
necessary, to take measures for recovery
before an offender can be arrested and
subjects the police to comply with the
provisions contained in sections 158, 167,
and 168 of the Code, section 438 casts a
duty on the courts, not to protect a person
who is alleged to have committed a crime
or who is alleged to be indulging in criminal
activity or who is keeping himself away
from the legal process if there are good
reasons to suppose that he has been doing
so, section 438, old or substituted virtually
operates as an injunction against the police
restraining them to arrest an offender as
required by section 157(1) of the Code of
Criminal Procedure and to release him on
bail, if arrested on the terms and conditions
imposed on the alleged offender by the
Court. While issuing an injunction, the
Courts have got to be extraordinarily
cautious, particularly in view of the
deteriorating law and order situation day
by day, in exercising the powers which are
conferred upon them under section 438 of
the Code of Criminal Procedure. The
powers under section 438 of the Code are
to be exercised "in the interest of justice"
and not otherwise. At the cost of
repeatition, it may be stated that justice
does not always lie in protecting a person
who has committed a crime or who has
been indulging in criminal activity or who
has been keeping himself away from legal
process. Committing a serious offence or
indulging in serious criminal activity
dodging the legal process is a wrong
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against not only an individual but against
the society at large and it is high time that
the Court should bear that consideration in
mind while exercising the power contained
in section 438 of the Code of Criminal
Procedure. The provisions contained in
Chapter XII of the Code of Criminal
Procedure, and in particular, the powers to
arrest a person under section 157(1) of the
Code are as much part of normal criminal
law as are the provisions contained in
section 438 of the Code. Therefore, the
provision contained in section 438 of the
Code are required to be implemented
subject to the powers of the police
conferred upon them under Chapter XII of
the Code of Criminal Procedure. The
balance between liberty of an individual
and the rights arising out of the legal and
constitutional duties of the police to
investigate into the offence is to be struck
by the Courts in accordance with the
aforesaid considerations and in a manner
which is conducive to the cause of justice."
While deciding the Criminal Application No.4370 of 2004 in
Goyappa Jalagiri v The State of Maharashtra, the learned
Single Judge of this Court (Coram: A.M. Khanwilkar, J.) vide
order dated 20th October, 2004, observed as under:-
"P.C.
1. Heard counsel for the parties. Perused
the record. The court below, to my mind,
has committed manifest error in assuming
that provisions of sub sections 3 and 4 of
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section 438 are independent. Sub sections
of Section 438 are independent. Sub
Sections of section 438 as applicable to the
State of Maharashtra will have to be read
conjointly and if so read the scheme
appears to be that when the court insist for
appearance of any applicant before the
application is finally heard or at any other
stage of the hearing of the application, the
appropriate course would be to protect the
applicant for the limited purpose so as to
enable him to appear before the court. If
such limited protection is not extended to
the applicant, the applicant would be
obviously exposed to the threat of arrest
and for which purpose Section 438 has
been brought into force. Viewed in this
perspective, the Sessions Judge, Sangli,
has committed manifest error in
proceeding on the assumption that it was
not necessary to extend any protection to
the applicant as to enable him to appear
before the Court. As the court below has
not considered any other aspects on
merits, to my mind, following order will
meet the ends of justice:
(a) The applicant is protected for a period
of one week from today to enable him to
make fresh application before the Sessions
Court at Sangli, who in turn shall decide
the same on its own merits in accordance
with the law.
(b) That the applicant will not be arrested
by the police in connection with the
offence registered as C.R. No.6 of 2004 in
Umadi Police Station, Sangli. That will not
preclude the Investigating Officer to ask
the applicant to attend the police station
for the purpose of interrogation till the
Anticipatory Bail Application is disposed of.
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Application disposed of accordingly."
While deciding Criminal Application No.569 of 2001 in Vijaya
Ramesh Ramdasi v. State of Maharashtra the learned Single
Judge (Coram: N.V. Dabholkar, J. [as he then was]) vide order
dated 20/3/2001 observed in paras 7 and 8 as under:-
"7. On going through the text, certainly
there is no reference to interim anticipatory
bail in sub-section (4). However, it is
difficult to agree with the proposition of
learned APP that sub-section (4) should be
read independently and without any
reference to sub-sections (3) and (5),
between which the said provision is
sandwiched.
In this context, reference to proviso,
incorporated in sub-section (1) is a must.
This proviso is conspicuously absent in the
substantive section 438(1) of the Code. The
proviso reads as follows :
"Provided that, where the High Court or,
as the case may be, the Court of
Session, has not passed any interim
order under this sub-section or has
rejected the application for grant of
anticipatory bail, it shall be open to an
officer in charge of a police station to
arrest, without warrant, the applicant on
the basis of the accusation
apprehended in such application."
Thus, on reading proviso to sub-section
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(1), it is evident that mere pendency of
application for anticipatory bail is not a bar
to effect arrest of the applicant on the basis
of allegation for which he apprehends
arrest. The Investigating Officer will be
required to stay away, only if the applicant
has succeeded in securing the interim
anticipatory bail.
As can be seen by comparison of
section 438(1) and (2), as it stood before the
substitution by State amendment and
Section 438(1) and (2) as introduced by the
State Amendment, it can be seen that
notion of interim anticipatory bail is totally
absent in the original section, which seems
to have been officially introduced by the
express, statutory provisions by the State
amendment. Sub-section (2) as
incorporated by State amendment expressly
introduces the provision of grant of interim
anticipatory bail, while maintaining the
same conditions, those can be imposed
upon the applicant by the Court, which were
available for final grant of anticipatory bail
in the Central Legislation.
Thus, the contention of Shri Patil that
Section 438 of the Code as introduced by
the State amendment should be read as a
scheme within itself has substance. The
scheme makes a provision for considering
certain factors for grant of anticipatory bail
by the Court; as embodied in sub-section
(1). In case, the Court is not pleased to
grant interim anticipatory bail, it is open for
the Investigating Officer to effect arrest on
the allegations for which the arrest is
apprehended. Pendency of application for
anticipatory bail is no impediment in effec
ting such an arrest and even on rejection of
application for anticipatory bail, the
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35
investigating officer is at liberty to effect
immediate arrest of the applicant without
requiring a warrant for the purpose."
"8. While considering, whether the grant
of interim anticipatory bail is sine-qua-non
for the Court to order personal presence of
the applicant on the date fixed for final
hearing, practical effect of the scheme as a
whole must be taken into consideration. In
case the applicant is not granted interim
anticipatory protection and still the Court
directs the applicant to remain present in
the Court on the date fixed for final hearing,
by virtue of proviso to sub-section (1), it is
open for the Investigating Officer to effect
arrest of the applicant. The direction under
sub-section (4), if considered as an
independent and irrespective of interim
protection, will prove to be a mouse trap
and not a protection of personal liberty of
the citizen. Being under the Court
directions the applicant would be obliged to
proceed towards the Court and Investigating
Officer can wait at the entrance gate of the
Court premises.
The proposition of learned APP that sub-
section (4) is an independent power and can
be exercised without granting interim
protection is, therefore, unacceptable, being
against the spirit of provision of anticipatory
bail, which is believed to be for the purpose
of protection of personal liberty guaranteed
by the Constitution of India. It must,
therefore, be said that the Court
entertaining the application for anticipatory
bail shall be in a position to insist for
personal presence of the applicant, although
in the interest of justice on the date fixed
for final hearing or on any other date fixed
for hearing, provided the applicant is
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granted protection by interim anticipatory
bail. In case sub-sections (3), (4) and (5)
are not to be read together in this fashion,
by virtue of proviso to sub-section (1) the
Court itself shall be indulging into
frustrating the petitions."
10. I am, therefore, fortified in my view by virtue of the
observations made by the aforesaid three learned Single
Judges of this Court on this aspect. Therefore, I am of the
view that the learned Sessions Judge clearly erred in
directing the applicants to remain present in court without
granting any interim protection in this case.
11. I am informed that the said provision is being used by
the prosecution for the purpose of arresting the accused and
the courts, very often, after passing an order under sub-
section (4) of section 438 do not grant any interim
protection. In my view, it would be appropriate, therefore, to
take into consideration the scheme of section 438 that if an
application is preferred by the prosecution for the purpose of
securing presence of the accused, the courts, if they want to
pass favourable order granting the application in such cases
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37
it would be appropriate if some reasons are assigned as to
why it feels that presence of the accused is necessary and
ordinarily should grant interim protection to the accused so
that the prosecution on the pretext of securing presence of
the accused does not arrest the accused and make his
application infructuous.
12. So far as the merits of the present case are concerned,
in my view, applicants have made out a case for grant of
anticipatory bail. One Rameshchandra Shah and Haresh
Kapadia who are father and father-in-law of applicant No.1
respectively had made representations to the complainant
that certain land belonging to Rayon Mills was available for
sale and that they could assist the complainants to secure
that land and, for that purpose, they had asked the
complainants to deposit an amount of Rs 1 crore each in the
Bank of Maharashtra and Sangli Bank and thereupon asked
them to pay their fees to the tune of Rs 1.25 crores. This
agreement took place sometime in 2007 and, after
depositing the amount of Rs 1 crore each in Maharasthra
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Bank and Sangli Bank, an amount of Rs 1.25 crores was
deposited in the account of applicant No.3. According to the
complainants, thereafter, no further steps, as required under
the said agreement, were taken and, therefore, a notice was
sent by the complainants to the applicants herein, asking
them to refund the said amount of Rs 1.25 crores and the
said notice was to be treated as notice of winding up under
the provisions of Companies Act. The reply was given by the
applicants herein denying the allegations which were made
by the complainants. It was denied that the said amount of
Rs 1.25 crores was deposited in their account. It was further
denied that there was any meeting held between the
applicants and two other gentlemen viz. Rameshchandra
Shah and Haresh Kapadia and the Complainants' Directors.
A civil suit has been filed by the complainants in this Court
for recovery of the said amount. Under the facts and
circumstances of this case, therefore, there is some
substance in the submissions made by the learned Senior
Counsel appearing on behalf of applicants that the entire
exercise of filing a complaint after 26 months, essentially, is
an arm-twisting technique employed by the complainants to
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secure an amount of Rs 1.25 crores from the present
applicants who had no concern of whatsoever with the said
agreement between Rameshchandra Shah and Haresh
Kapadia and the complainants. It is an admitted position
that Rameshchandra Shah, father of applicant No.1 has
expired and though no application was filed by Haresh
Kapadia for anticipatory bail, no steps have been taken by
the police to arrest him. Applicant No.2 is a wife of applicant
No.1 and she, according to the learned Senior Counsel
appearing on behalf of applicants, is not concerned with day-
to-day management of the Company.
13. In my view, therefore, taking into consideration the
aforesaid facts and circumstances, in any event, custodial
interrogation of applicants is not necessary. Prima facie
case, therefore, is made out by applicants for grant of
anticipatory bail. Application also appears to have been filed
against the present applicants to pressurise them to pay the
said amount of Rs 1.25 crores which was paid to Haresh
Kapadia father-in-law of applicant No.1 and Rameshchandra
Shah who is a father of applicant No.1 and who had expired
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40
in the meantime.
14. In the result, the following order is passed:-
ORDER
In the event of the arrest of the applicants in connection with the offence punishable under section 420 and 120-B of the Indian Penal Code which is registered with Tardeo Police Station vide MECR No.05 of 2009, they shall be released on bail in the sum of Rs 10,000/- each with one or two sureties each in the like amount. Initially, in the event of arrest, applicant Nos. 1 and 2 shall furnish cash bail of Rs 10,000/- each and within two weeks thereafter, they shall furnish sureties of the said amount. Applicant No.1 shall report to Tardeo Police Station for a period of one week from 7th December, 2009 and, thereafter, as and when called. It is clarified that the applicant No.1 shall be called between 11.00 A.M. and 5.00 P.M., after giving him 24 hours notice.
Application for anticipatory bail is disposed of.
Parties to act on the copy of this order duly authenticated by the registry.
(V.M. KANADE, J.) ::: Downloaded on - 09/06/2013 15:22:41 :::