JUDGMENT
U.B. Saha, J.
1. This is an application under Section 438 of Cr.P.C. for grant of pre-arrest bail in favour of the accused applicants as they are apprehending arrest in connection with written complaint (not registered as FIR) lodged by Smt. Rupali Baul (Shil) with O/C of Ranirbazar Police Station.
2. Hear Mr. Somik Deb, learned Counsel for the accused applicants.
3. The case of the present applicants in brief is that on 9.10.2005 the applicant No. 1 Shri Kartick Kumar Shil was married to Smt. Rupali Baul (Shil) and after the marriage both of them were leading their conjugal life in the parental house of the applicant No. 1. As there was pressure on the applicant No. 1 from the side of his wife Rupali, he had to proceed in a separate mess in a rented accommodation leaving his other inmates of the parental house. And his wife, Rupali developed relationship with diverse male persons and as a result suspicion arose in the minds of the applicant No. 1 and as he raised objection to the activities of his wife, she made a complaint against the complainant No. 1 along with other inmates of his family. Levelling unfounded accusations against the applicants a complaint was lodged by his wife Rupali, complainant, with the O/C Ranirbazar P.S. under Section 498A, which was subsequently withdrawn by the complainant herself as there was some sort of settlement between the family members of both applicant No. 1 and the complainant wife. Thereafter, the applicant No. 1 proceeded to his in-laws’ house to take his wife, Rupali, being accompanied by his maternal uncle but Rupali refused to come back.
4. Considering the fact of developed relationship with diverse male persons and refusal to come back for leading marital life, applicant No. 1 filed an application under Section 13(1)(la) of the Hindu Marriage Act, 1955 against his wife, for getting a decree of divorce. After presentation of the said case, Rupali again allegedly approached the Ranirbazar P.S. by way of filing the alleged complaint to wreak her vengeance. On the basis of the alleged complaint, the Police authority had registered no formal FIR but they are trying to arrest the applicants in connection with the said alleged complaint. Hence, the present application for pre-arrest bail.
5. Mr. Deb, learned Counsel, in support of the petition, submits that the applicants have reasonable belief to be arrested in connection with the said alleged complaint by the police authority as the police, by this time, visited their house for arresting them.
6. On request by this Court, the learned Addl. PP submits that in absence of registration of a specific case against them i.e. applicants and without any specific date on which police tried to arrest them, visited their house and also while the complaint is not before the Court as the same is not annexed with the application to consider whether there is any ingredient mentioned in the complaint petition making out any cognizable and non-bailable offence, it would be improper for the Court to exercise its power under Section 438. He also urges that the present application under Section 438 is not maintainable for the reasons stated. Mr. Deb, reacting to the submission of learned Addl. PP relies on the case of Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab , and refers paras 37, 42 of the said report.
7. To appreciate the rival contention of the parties it will be proper for this Court to extract paras 37 and 42 of Shri Gurbaksh Singh Sibbia (supra) hereunder:
37. Thirdly, the filing of a first information report is 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 FIR is not yet filed.
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 be issued 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 and 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 be followed as an invariable rule. The normal rule should not be to limit the operation of the order in relation to a period of time.
8. There is no quarrel with the proposition of law laid down by the Apex Court in the aforesaid two paragraphs in the case of Shri Gurbaksh Singh Sibbia (supra). It is settled position of law that if there is any reasonable belief that a person is going to be arrested or detained by the police authority due to false implication by any person or by police agency for the purpose of harassment, then that person has the right to approach the Court under Section 438, Cr.P.C. for grant of pre-arrest bail. The Legislature, by way of enacting the aforesaid provisions of Section 438, empowers the Court to safeguard the right of a citizen from harassment on the basis of concocted or fabricated allegation/accusation against him either by the persons who make allegation against him or by the investigating and/or by police agency. But the sine qua non for using the said power under Section 438, Cr.P.C. is that, a prima facie case is to be made out by the petitioner/applicant that he has a reasonable belief or apprehension of arrest and allegation made against him is cognizable offence, so also non-bailable as those are the pre-requisite conditions for preferring an application of pre-arrest bail. Unless the aforesaid conditions are fulfilled and made out in support of application under Section 438, the Court cannot exercise its power of granting pre-arrest bail as vested on it. In the instant case, from the application, it appears that though there was a dispute between the applicant No. 1 husband and wife Rupali the alleged complainant lodged a complaint with the Ranirbazar P.S., which was registered and subsequently withdrawn due to settlement between the two families and thereafter the applicant No. 1 filed a petition under Section 13(1)(1a) seeking divorce and the wife Rupali also lodged the alleged complaint with the Police Station but in absence of the said complaint before this Court, the Court is not in a position to come to a definite conclusion what materials are there in the alleged complaint and whether those accusations in the complaint constitute any non-bailable offence or not and whether the applicants’ apprehension/beliefs are really reasonable or not, as an application for pre-arrest bail is supposed to satisfy the Court regarding the reasonable belief of the applicant that he may be arrested in connection with the said accusation of non-bailable offence, mere belief is not enough as the same is sine qua non for an application under Section 438, Cr.P.C. Unless the Court is satisfied that there is some accusation of non-bailable offence and there is an apprehension for arrest in connection with the said accusation, how the Court will exercise its power.
9. There is also no such document in support of the contention made By the applicants that there is some accusation against the present applicants by the complainant.
10. It would not be proper for this Court to exercise its discretionary power vested on it under Section 438, Cr.P.C. for the said provision has been enacted by the Legislature with some specific purpose. When the police authority visited the house of the applicants for arresting them is also not mentioned and unless a specific case is made out as to on which particular date and time police tried to arrest the applicants, this Court is not in a position to safely come to a conclusion that there is reasonable belief on the basis of the applicants’ averments that police tried to arrest them and in absence of such assertion, this Court is also not in a position to ascertain as to whether in the said alleged complaint the allegations made by the alleged complainant constitute a cognizable offence or not unless the complaint itself is before the Court.
11. Considering the aforesaid facts and circumstances this Court is of the considered opinion that the present application is not maintainable, hence, the same is rejected.