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Elaborating his submissions, Mr. Vyas, learned Addl.
Advocate General submits that an act of criminal misconduct by a public servant directly or indirectly sacrifices public interest, which cannot be measured solely on the basis of loss to the exchequer in the present era of accountability and transparency. Countering the argument of Mr. Bora, learned Addl. Advocate General has strenuously urged that shifting of work from one construction site to another was ordered by the then Chairman, JDA without approval of the Board. Learned Addl. Advocate General, while opposing all the bail (11 of 36) applications, has made an attempt to highlight the conduct of the petitioners and urged that against some of the accused-petitioners standing warrants are issued, furnishes a plausible ground for denial of anticipatory bail. Learned Addl. Advocate General has vehemently argued that some of the accused persons are subjected to custodial interrogation and therefore petitioners cannot claim any immunity under the law of special treatment for not being subjected to custodial interrogation. Learned Addl.

Upon appreciation of arguments advanced on behalf of accused-petitioner that right to life and liberty enshrined under Article 21 of the Constitution is imbibed in Section 438 Cr.P.C., the Court has acknowledged the same and held:

"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 the 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 (18 of 36) 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 [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."

Supreme Court, in case of Sudhir (supra), has declined to interfere with the order of High Court cancelling anticipatory bail granted to the appellants in the wake of serious allegations of corruption and misappropriation of public funds released for rural development besides other dubious conducts. The Court further emphasised that in want of custodial interrogation of appellants entire investigation is hampered. Indisputably, if Court feels that custodial interrogation of accused is essential and without which investigation may held up, discretion can be exercised for denial of anticipatory bail to the accused.