George vs State of Kerala and Another

K. Hema, J.—Can a person to whom summons is issued by a Court be granted anticipatory bail?

This is an application for anticipatory bail. The alleged offence is u/s 55(a) of the Abkari Act. According to prosecution, petitioner was found in possession of 27 litres of Indian made foreign liquor for sale.

Learned Counsel for petitioner submitted that petitioner received summons from the Magistrate Court in C.P. No. 42/2008. Petitioner apprehends that he may be remanded and hence this petition. Learned Public Prosecutor submitted that petitioner was absconding and he was not available for arrest and interrogation. He opposed this application.

It is clear from the submissions made that though petitioner was absconding, court has chosen to issue only summons to him. Hence, there cannot be any reasonable apprehension of arrest of the accused. Section 438 of the Code of Criminal Procedure can be invoked, only if a person has a reason to believe that he will be arrested on accusation of commission of a non bailable offence. A reasonable apprehension of arrest is an essential requirement to invoke provision contained in Section 438 of the Code. If there is no such apprehension, Section 438 of the Code has no application. In this case, having issued only summons to accused, there cannot be any apprehension of arrest at all. Anticipatory bail cannot therefore be granted u/s 438 of the Code, basic requirement under the provision is not satisfied.

It is held by the Supreme Court in Adri Dharan Das Vs. State of West Bengal, it was held that the applicant mush show that he has "reason to believe" that he may be arrested in a non-bailable offence and if it is only a mere "fear" and not "belief, Section 438 of Cr. P.C. cannot be invoked. The relevant portion from the above decision is extracted as hereunder:

If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant''s apprehension that he may be arrested is genuine.

Apart from all these, if an accused appears in court in obedience to summons issued by the court, the accused cannot, normally be remanded to custody. It is held in Sreekumar Vs. State of Kerala, as follows:

Having chosen to exercise the discretion u/s 204 Cr.P.C. in favour of the petitioner and having issued only a summons to the accused, it appears to me to be heartless, insensitve and harsh for any court to remand an accused person who has come to court on the invitation extended to him by the Court by issuing a summons. That procedure is shockingly unreasonable and should not be pursued by any court. Having exercised the discretion u/s 204 Cr. P.C. to issue only a summons and having led the accused by such conduct to believe that he can be safely appear before court on invitation, it would be impermissible for any court thereafter to turn turtle and remand the accused to custody.

In a case where summons is issued, I find it difficult to expect, presume or infer that in a case where summons is issued to the accused, he will be arrested or that he will be remanded to custody, in violation of the dictum laid down by this Court in Sivakumar''s case cited above and various other similar decisions on the point. In the above circumstances, the apprehension that accused will be remanded is also unacceptable.

The case was registered on 8-1-2007 and petitioner was not available for investigation. Even after charge is laid, only summons was issued. He is bound to appear in court and subject himself to the ordinary procedure of law. But, anticipatory bail, indeed, is not the remedy.

Petitioner shall appear before the Magistrate Court concerned in obedience to the summons and co-operate with the proceedings.

With this direction, this petition is dismissed.