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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2320 OF 2010
Shivraj s/o Kashinathappa Gandge Applicant
VERSUS
The State of Maharashtra Respondent
WITH
CRIMINAL APPLICATION NO. 2321 OF 2010
Shivraj s/o Kashinathappa Gandge Applicant
VERSUS
The State of Maharashtra Respondent
Mr. S.P.Katneshwarkar, advocate for the applicant.
Mr. P.P.More, A.P.P. for the Respondent.
Applicant is present in person.
CORAM : A.V.POTDAR, J.
DATE : 18th August, 2010.
P.C.:
1 By these applications, the applicant has challenged the
orders dated 18.05.2010, passed below Exhibit-10 in Criminal Misc.
Application No.47/10 and below Exhibit-8 in Criminal Misc.
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Application No.49/10 on the file of Ad hoc Additional Sessions Judge,
Latur, by which the applications moved by the prosecution to keep
the applicant present at the time of hearing of anticipatory bail
applications moved by him, without granting interim relief, came to
be allowed.
2 Heard Counsel for the applicant in both these
applications. Today, the applicant is present before the Court as per
the directions of this Court. Also heard learned A.P.P. for
Respondent-State.
3 During the course of submissions across the bar, it is the
only grievance put forth by the Counsel for the applicant that as no
interim protection was granted in favour of the applicant, the Court
cannot insist presence of applicant at the time of hearing of
anticipatory bail applications, even though there is a State
amendment to Section 438 of the Code of Criminal Procedure, which
speaks that on the application of the prosecution, if the presence of
the applicant – alleged accused is required at the time of hearing of
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anticipatory bail application, the Court to pass necessary order to
that effect and secure presence of the applicant-accused at the time
of hearing of the anticipatory bail application. Section 438(4), as per
the State amendment, reads as follows:
(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 applicationmade to it by the Public Prosecutor, the Court
considers such presence necessary in theinterest of justice.
4 In view of this State amendment, whether the presence of
applicant-accused is required as a mandate at the time of hearing of
anticipatory bail application or not, is decided by this Bench in the
matter of Ashik Rameshchandra Shah & others Vs. State of
Maharashtra (reported in 2010 (2) LJSOFT (URC) 45, wherein it is
observed that:
6. After having heard the learned Senior
Counsel appearing on behalf of applicants andthe 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::: Downloaded on – 09/06/2013 16:19:13 :::
4manner and method and circumstances under
which order of pre-arrest can be passed or notpassed. 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 Courtin 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 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
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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 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
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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 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
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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
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
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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 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 SC 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
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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 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
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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 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
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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 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
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.”
Therefore, the Apex Court has laid down
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12the 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 protectionwhen 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.
5 As it is observed in the matter of Ashik Rameschandra
Shah & others Vs. State of Maharashtra, in para 6, as referred
supra, now the situation is made clear by this Bench in that order,
that this mandate to follow if interim protection is granted, otherwise
not. Considering this aspect, prima facie, the orders impugned in
these applications are not sustainable.
6 Today, when the applications came up for final hearing,
Counsel for the applicant submitted across the bar, tomorrow these
applications are listed for final hearing before the Ad hoc Additional
Sessions Judge, Latur. Hence, if protection is granted till tomorrow
to the applicant, the applicant will appear before the Ad hoc
Additional Sessions Judge, Latur, during the hearing of those
Criminal Misc. Applications for anticipatory bail.
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7 Bearing in mind these aspects, both the applications
succeed. The orders dated 18.05.2010, passed below Exhibit-10 in
Criminal Misc. Application No.47/10 and below Exhibit-8 in Criminal
Misc. Application No.49/10, are hereby quashed and set aside.
Both these applications now deserve for the following order:
ORDER
(a)
Both the Applications are allowed.
(b) Interim protection granted to the applicant in the event
of his arrest in connection with CR Nos. 7/09 and 6/09, registered in
Chakur Police Station, District Latur, the applicant be released on
bail on furnishing solvent surety in the sum of Rs.15,000/-
(Rs.Fifteen thousand) and on executing P.R. Bond in the like amount.
(c) This protection is granted till Criminal Misc. Applications
No.47/10 and 49/10 are finally decided and disposed of by the
concerned Ad hoc Additional Sessions Judge, Latur.
(d) It is hereby made clear that these orders are not passed
on the merits of those applications, but are passed on purely
technical aspect, whether presence of the applicant is required, if no
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interim protection is granted, at the time of hearing of anticipatory
bail application.
(e) Both the Applications stand disposed of accordingly.
(f) Parties to act on the authenticated copy of this order
duly signed by the Associate of this Court.
( A.V.POTDAR )
JUDGE
adb/criapln232010
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