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It is also contended that the second respondent/A-11 is the brain behind fabrication of documents and forging the signatures of original landlords and basing on the said fabricated and forged documents, the second respondent has entered into an agreement of sale with M/s Ascot Constructions Private Limited for Rs.16 crores and received Rs.61 lakhs as part of sale consideration from them in the capacity of GPA Holder of the other accused. Subsequently, M/s Ascot Constructions Private Limited filed a private complaint against the second respondent/A-11 for the offence punishable under Section 138 of Negotiable Instruments Act and also filed suit O.S.No.306 of 2013 on the file of Chief Judge, City Civil Court, Hyderabad, for recovery of the said amount and the said case is pending in the respective Court. The petitioner learnt that the second respondent/A-11 crated a fake Cooperative society at Bangalore in respect of the land pertaining to Shantinagar Housing Society at Bangalore which was already existing and a news item was published in the Times of India stating that the second respondent/A-11 formed and created a fake housing society and intended to grab 66 acres of land near Koramangala, allotted to a housing society. Thus, the second respondent/A-11 is a man with criminal antecedents and obtained anticipatory bail by playing fraud on the Court, without disclosing the various proceedings which ended in dismissal, either on merits or on withdrawal and also filed petition for grant of pre-arrest bail when the original Officer was on leave, who dismissed the earlier bail application and filed the petition to grant pre-arrest bail, adopting the practice of bench haunting, without any changed circumstances. Thus, the order passed by the in-charge Sessions Judge is illegal and without considering the material on record, the criminal antecedents, including various proceedings, both civil and criminal, the in-charge Sessions Judge committed grave error in granting pre-arrest bail to the second respondent/A-11 and prayed to allow this petition and to set- aside/quash/cancel the order in Crl.M.P.no.3726 of 2017 dated 05.12.2017.

P O I N T:
The first and foremost contention of the learned Senior Counsel for the petitioner before this Court is that, the in-charge Sessions Judge had not even given a gloomy glance to the principles for granting pre-arrest bail, passed an illegal or perverse order and liable to be set-aside.
In view of specific contention, it is apposite to advert to the concept of anticipatory bail and principles guiding the Courts to grant such pre-arrest bail. In fact, Criminal Procedure Code is silent with regard to the concept of anticipatory bail, but, Section 438 Cr.P.C speaks about a direction to be issued to the Investigating Agency or police to release the accused on bail, in the event of arrest. Section 438 Cr.P.C deals with direction to the police for enlargement of accused on bail in the event of arrest, basing on the circumstances of the case. But, the concept of pre- arrest bail is developed by Judge made law and such direction is described as pre-arrest bail and sometimes as anticipatory bail. But, the basis for concept of anticipatory bail is only a direction covered by Section 438 Cr.P.C. Under the Code of Criminal Procedure, 1898, there was no provision corresponding to section 438 of the 1973 Code providing for bail in anticipation of arrest. Anticipatory bail was, however, granted in certain cases under the High Courts inherent powers though the preponderant view negatived the existence of any such jurisdiction. The Law Commission in its 41st Report, recommended the introduction of a provision in the Code enabling the High Court and the Court of Session to grant anticipatory bail. The Commission viewed that the necessity for granting anticipatory bail arises 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. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a 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 first to submit to custody, remain in prison for some days and then apply for bail. (Mangi Lal v. State , State of Gujarat v. Govindlal Monilal Shah ).

(Emphasis supplied) In case of issuing such directions, the main challenge for the enforcement agencies is to elicit the truth during investigation. One of the challenges that the law enforcement agencies are facing from the Human Rights movement is that nobody should be confined in any way unless he is declared guilty. To meet such posers, the bail mechanism in India has been statutorily extended by induction into its fold a comparatively new concept commonly known as anticipatory bail. Section 438 of the Criminal Procedure Code 1973 has been shaped to incorporate this concept. It deals with a situation where a person having reasonable apprehension that he would be arrested on an accusation of having committed a non-bailable offence, seeks to prevent his/her detention. The first part of the section sets out the conditions under which a person can make an application for anticipatory bail. The second part confers jurisdiction on the High Court or the Court of Session. Thus the second part can be viewed as strictly jurisdictional; that High Court and the Court of Session have concurrent jurisdiction. Once a Court is invested with jurisdiction, that jurisdiction subsists all along, unless taken away expressly or by implication. There are no express words in the section itself, indicating that the jurisdiction is taken away under any circumstances. It does not appear that by implication even the jurisdiction of either of the Courts is taken away or put an end to. It seems that the Legislators did not intend to exclude the one or the other of the two Courts the High Court or the Court of Session. Had it been so intended, the legislators would have taken care to express that clearly, as they have done in subsection (3) of section 397 or sub section (3) of Section 399. Anticipatory bail cannot be claimed as a matter of right, it is essentially a statutory right conferred long after the coming into force of the Constitution. It is not an essential ingredient of Art. 21 of the Constitution. (State of M.P. v. R.K. Balothia ) To grant anticipatory bail/pre-arrest bail, 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, the possibility of the applicant to flee from justice; and where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order of the grant of anticipatory bail, shall be taken into consideration. This amendment in the section had come into force from the date of its notification. But, the grounds for granting regular bail or pre-arrest bail or anticipatory bail are almost identical. In both cases, the conduct of the person seeking bail is to be taken into consideration. Thus, the main object of anticipatory bail is to relieve a person from unnecessary apprehension or disgrace. The sine qua non of this provision is that when any person has a reason to believe that he may be arrested on an accusation of having committed a non-bailable offence.

The petition filed under Section 438 Cr.P.C in Crl.P.No.3726 of 2017 is bereft of any changed circumstances in the investigation, except virtually reiterating the grounds urged in the earlier bail application in Crl.M.P.No.2994 of 2017. It appears from the allegations made in the petition that the bail was claimed not due to any changed circumstances, but, based on the same allegations made in the earlier bail application in Crl.M.P.No.2994 of 2017. When the bail application was dismissed having found that there are no grounds to grant pre-arrest bail to this petitioner by issuing a direction to the police to release the second respondent/A-11, on bail in the event of his arrest, the In-Charge Officer would have atleast referred the changed circumstances in the investigation. But, obviously, for different reasons, the In-Charge Officer who passed the order under challenge did not point out any changed circumstances after dismissal of the earlier bail application in Crl.M.P.No.2994 of 2017 till filing of Crl.M.P.No.3726 of 2017, enabling the Court to grant pre-arrest bail to the second respondent/A-11. Therefore, granting a pre-arrest bail to the second respondent/A-11 without any changed circumstances in investigation, is a serious illegality, the Court cannot grant a pre-arrest bail as a matter of routine, more particularly, when the earlier bail application was dismissed by the Regular Officer, assigning his own reasons and the order passed by the Regular Officer became final. In such case, the In-Charge Officer ought not to have granted a pre-arrest bail without any changed circumstances in the investigation.