ORDER
D. Biswas, J.
1. Heard Mr. A. Roy Barman, learned counsel for the petitioner. Also heard Mr. A. Ghosh, learned Public Prosecutor and Mr. U.B. Saha, learned Govt. Advocate.
2. At the outset Mr. Ghosh, learned Public Prosecutor raised an objection as to the maintainability of this petition under Section 438 of the Code of Criminal Procedure in view of the provisions incorporated therein permitting only the person having reasonable apprehension of being arrested in a non-bailable offence to file the petition. According to learned Public Prosecutor this petition having been filed by Shri Pandab Das on behalf of Shri Anil Das, the requirement of Section 438, Cr.P.C. has not been complied with. In addition, reference has been made to a Division Bench judgment of Calcutta High Court, reported in 1998 Cr L.. J. 1383, where the word ‘he’ has been interpreted not to include a stranger or a tadbi kar or middleman. In para 15 of the aforesaid judgment, the Calcutta High Court while laying down the above ratio gave the following observation :-
In considering the provisions of Section 438 of the Code of Criminal Procedure, the Court cannot ignore the expression ‘he may apply to the Court’. In construing the statute, the Court is bound to give effect to each and every words used in the statute. The expression ‘he may apply’ could not be construed as ‘may on application by or on behalf of person’ or the expression ‘he’ cannot mean that ‘he’ includes a stranger or a tadbirkar or a tout or a middleman.
3. According to learned Public Prosecutor, there being no interpretation of this particular expression by this High Court, the aforesaid judgment of Calcutta High Court which is also based on Apex Court judgment in Chhotan Prasad Singh v. Hari Dusadh reported in AIR 1977 SC 407 : 1977 Cri LJ 249 has to be relied upon.
4. After going through the petition being Criminal Original Petition No. 58 of 1998, it is apparent on the face of it that the petition has been filed by the elder brother of the person, who is apprehending arrest in a non-bailable case. Therefore, this petition is not maintainable and is liable to be rejected.
5. Accordingly, this Criminal Original Petition No. 58 of 1998 stands dismissed. However, liberty is given to the person apprehending arrest to move a petition in strict compliance of the provisions of Section 438, Cr. P. C, if so advised.