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Judgment
Swamikkannu, J.—This is an application under S. 438, Crl. P.C., for grant of anticipatory bail to the petitioners herein in the event of their arrest in connection with Crime No. 59 of 1981, of Ettayapuram Police station.
It is vehemently submitted on behalf of the State that the petitioners have been absconding for a very long time and were not available to the police. It is also submitted that a similar application filed by the petitioners and another in Crl. M P. No. 3460 of 1961 was dismissed by this Court on 8th July, 1981.; -There has been no vital change of circumstances in the submission that emanates on behalf of the State by the learned Government Advocate No. III.
Mr. R. Shanmugham, learned counsel for the petitioners on the other hand, submits that the petitioners herein, who are A4 and A5, in Crime No. 59 of 1981 of Ettayapuram Police station, are innocent and they have been falsely implicated in this case by the respondent-Police at the instance of some persons who are inimically disposed towards them. It is relevant in this connection to note that in Crl. M.P. No. 3460 of 1981, along with the present petitioners, there was also one Saravanan as the first petitioner who prayed for grant of anticipatory bail but the said Saravananan is not now before this Court in the present petition.
The learned Government Pleader No. III contends that the deceased was found with his hands tied in a well, that the petitioners along with one Saravanan, who was the first petitioner in Crl. M.P. 3460 of 1981, were found in the company of the deceased and that the investigation is still pending. It is submitted by the learned Government Advocate No. III, that unless the petitioners herein are actually arrested, it is rather difficult to say as to when the charge sheet can be filed.
As a general rule, the State should, unless very sure about getting material during investigation, not stand very much in the way of the petitioner getting the benefits of SS. 437 and 438, Crl. PC. As a matter of fact, S. 438, Crl. P.C., is an outcome of a feeling among the citizens of India that they should not be unsuccessfully proceeded with, especially when they are innocent, on the basis of Fame false complaint emanating out of motive. In respect of non-bailable offence''s, all the conditions imposed by S. 437, Crl. P.C., are implicitly contained in S. 438, Crl. PC, as well. Hence, in order to successfully invoke the jurisdiction under S. 438, Crl. P.C., the petitioners charged with a non-bailable offence, apart from satisfying the conditions under S. 437, Crl. P.C., should in addition, make out a special case for securing an order of anticipatory bail, which is of an exceptional type. They must prove that the charge leveled against them is mala fide and stems from ulterior motive. Mere [allegation of mala fides by an offender and a fervent claim of innocence put forward by him are manifestly insufficient for arriving at such a conclusion by the Court. These are all principles enunciated by the Supreme Court of India in several decisions which have to be taken as guidance so far as grant of anticipatory bail is concerned.
This Court is going to incorporate those vital principles laid down by the Supreme Court for guidance of this Court in case of discussing the point that arises for consideration in a petition for grant of anticipatory bail because here are certain allegations made by the petitioners herein in an assertive manner against the respondent police. This Court does not indulge in discussing the truth or otherwise of such allegations, because this Court is now to consider whether at this stage the petition for an anticipatory bail is to be ordered or not.
It has been observed by the Supreme Court in State of Rajasthan, Jaipur Vs. Balchand alias Baliay, as follows-
It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavorable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time, any possibility of the abscission or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at Baren once every fortnight.
In Balchand Jain v. State of Madhya Pradesh 1977 L W. Crl. 98 : A.I.R..1977 S.C. 366 -1977, it has been observed by the Supreme Court as follows-
On a reading of S. 438. Crl. P.C. and R. 184. it can be laid down-(1) that S. 438 of the Code has not been repealed or overruled by R. 184 of the rifles but the two have to be read harmoniously without interfering with the spheres contemplated by each of those provisions. In fact, R. 184 of the Rules is only supplemental to S. 438 of the Code and contains the guidelines which have to be followed by the Court in passing orders for anticipatory bail in relation to cases covered by R. 184 of the Rules (2) that there is no real inconsistency between S. 438 of the Code and R. 184 of the rules:(3) that S. 438 of the Code is an extraordinary remedy and should be resorted to only in special cases. It would be desirable if the court before passing an order under S. 438 of the Code issues notice to the prosecution to get a clear picture of the entire situation, and (4) that in cases covered by the R. 184 of the Rules the court exercises power under S. 436 or S. 438 of the Code, has got to comply with the conditions mentioned in Cls.(a)and (b) of R. 184, and only after the court has complied with those conditions that an order under any of these sections of the Code in respect of such offences could be passed.
There does not appear to be any direct conflict between the provisions of R. 184 of the rules and S. 438 of the Code. However, the conditions required by R. 184 of the Rules must be impliedly imported in S. 438 of. the Code so as to form the main guidelines which have to be follows while the court exercises its power under S. 438 of the Code in offences contemplated by R. 184 of the rules. Such an interpretation would meet the ends of justice, avoid all possible anomalies and would at the same time ensure and protect the liberty of the subject which appears to be the real intention of the Legislature in enshrining S. 438 of the Code, as a new provision for the first time in the Code. There is no real inconsistency between S. 438 of the Code and R. 184 of the rules, and, therefore, the non obstinate clause cannot be interpreted in a manner so as to repeal or override the provisions of S. 438 of the Code in respect of cases where R. 184 of the rules applies.
The scope of R. 184 of the Rules is wider than that of S. 438 of the Code, inasmuch as while S. 438 of the Code can be invoked only in cases of non-bailable offences and not in cases of bailable offences, R. 184 of the rules would apply not only to non-bailable offences and in these circumstances, therefore, the conditions mentioned in R. 184 would have to be impliedly imported into S. 436 of the Code, which deals with orders for bail regarding bailable offences. In other words,, the position is that where a person who is an accused for offences contemplated by R. 184 of the rules and which are bailable, yet, he cannot get bail as a matter of right under S. 436 of the Code, unless the court complied with the conditions laid down in R. 184, Cls.(a)land (b). So far as the question of anticipatory bail is concerned that does not apply to bailable offences at all.
The rule of prudence requires that notice should be given to the other side before passing a final order for anticipatory bail so that a wrong order of anticipatory bail is not obtained by a party by placing incorrect or misreading facts or suppressing material facts. In future the courts will exercise this power keeping these observations in view. In emergent cases the courts may make the interim order of anticipatory bail before issuing notice to the other side. It is clear that the intention of the Legislature in enshrining the salutary provisions in S. 438 of the Code which applies only to non-bailable offences was to see that the liberty of the subject is not put in jeopardy on frivolous grounds at the instance of unscrupulous or irresponsible persons or officers who may sometimes be in charge of prosecution.
It was laid down in Mahantha Gouda v. State of Karnataka ILR 1978 Kar. 905 as follows-
On the ground that the name of the first petitioner is not in the complaint and the FIR and the second petitioner could not have committed the alleged offence as he was being treated by a doctor on the date of offence, the petitioner claimed anticipatory bail.
S. 438, Crl P.C. is an extraordinary remedy and should be resorted to only in special cases. It is desirable if the Court before passing an order under the section issues notice to the prosecution to get a clear picture of the entire situation. S. 438 should be read in conjunction with other provisions of law and the grant of blanket anticipatory bail cannot be read into the provision. The said power is not unguided or unanalyzed, but all the limitations imposed in S. 437 are implicit therein and must be read into S. 438 as well. In addition to the limitations imposed in S. 437, the petitioner must further make out a special case for the exercise of the power to grant anticipatory bail. He must prove that the charge leveled against him is mala fide and stems from ulterior motive. Mere allegation of mala fide by an offender and a vehement claim of innocence put forward by him are manifestly insufficient at such a conclusion by the court. The burden of establishing the mala fides is on the person alleging it and it is for him to prima facie substantiate his allegation that the charge of serious non-bailable offence against him has been leveled mala fide.
In respect of non-bailable offences, all the conditions imposed by S. 437 of the Code are implicitly contained in S. 438 as well. Where the nature of the charge is so serious as to be punishable with death or imprisonment for life, it would normally be inapt to exercise the power of the grant of anticipatory bail at the very there sold of the investigation unless the court at that very stage is satisfied that such a charge is false or groundless.
Where the person is charged with an offence punishable with death or imprisonment for life and he does not establish that the said charge is groundless or that it is inspired by mala fide, bail cannot be granted nominally under S. 437, Crl. P. C. and therefore, anticipatory bail cannot be granted to such a person.
In Gurbaksh Singh Sibia v. State of Punjab ILR 1978. 1 P&H 109 it was held as follows-
The normal application of the provisions of S. 438 of the Code would be to cases where the charge itself is of a frivolous nature. A case of this kind would be a fit one to exercise jurisdiction in order to needlessly prevent the humiliation of the offender. Similarly, the source from which such a charge stems has been considered as of significance and where it has been leveled by unscrupulous and irresponsible persons, that would itself be a ground for consideration in the exercise of the power. Where the court can on adequate material come to a first conclusion that the charge is totally false, it may nevertheless resort to S. 438 however, serious be the nature of the crime. S. 438 of the Code is in the nature of a shield for protecting the entirely innocent persons from malicious humiliation, if the necessary conditions for its exercise are satisfied. Care has to be taken that this provision does not become a sword in the hands of the unscrupulous persons to gain time for destroying the incriminating evidence against them and to mock at the legitimate investigative processes authorised by the law.
The power under S. 438 is not to be exercised in a vacuum, but only on the satisfaction of the conditions spelled out in the section itself. The jurisdictional fact for the exercise of the power under S. 438 is the co-existence of the two conditions, namely, an existing accusation (or in any case an accusation which reasonably arises from the existing facts) and a reasonable apprehension of arrest on the basis of such an accusation. It is thus plain that the exercise of the power under S. 438 is with regard to a specific accusation and cannot be extended in a blanket fashion to cover all offences with which the petitioner may come to be charged. Therefore, no question of the grant of anticipatory bail can arise with regard to an accusation not yet leveled or in respect of an offence yet not committed.
A person lawfully released on bail either on his own bond or with sureties cannot thereafter be deemed in fact or any legal fiction as being in the custody of a police officer for the purpose of S. 27 of the Evidence Act, 1871.
Mere allegation of mala fides by an offender and a vehement claim of innocence but forward by him are manifestly insufficient for arriving at a conclusion by the Court that the charge leveled against him is mala fide and stems from ulterior motive. There is hardly any case where a person seeking bail on a serious charge does not plead innocence and further does not allege some reasons for his alleged false implication. If the allegations by themselves are to be accepted at their face value, then virtually in every case the power under S. 438 would have to be exercised. Therefore, what indeed is an extraordinary power for exceptional circumstances would in fact become routine and common place. That is not the intent of the law. A mere claim of innocence and liberal allegations of mala fide motives invariably laid at the door of the investigating agency by the offender is not enough. The Court has to be independently satisfied about the prima facie falsity of the charge and the ulteriorness of the motive for leveling the same. S. 438 of the Code invariably operates at the very initial stage of the investigation and even the most competent prosecutor may not then be in a position to put before the court conclusive material to bring the charge home against the person accused. To put the prosecutor to proof at the very inception of the investigation appears as running counter to the whole scheme of investigation into cognisable cases as laid down in Chapter XII of the Code. This, indeed, is not the stage for invoking the maxim of the Criminal Law that the burden of proof rests upon the prosecution. That stage arrives at the end of the investigation and in the course of the trial itself. The inception of the investigation is not a trial. Thus the petitioner must show (and the court must be wary that mere allegations of mala fide by the petitioner are inadequate) and the court must be satisfied on materials before it that the allegations of mala fides are substantial and the accusations appear to be false and groundless.
It is difficult to unravel the crimes of corruption. It is harder to detect the same when it is committed by what is now a well known category of white cellar criminals. However, it is the hardest to bring to book when such crime stems from the corridors of executive power and the notices of high offices. Therefore, the courts must ever remain wary of throttling and in any way impeding the legitimate investigative process in such cases. In cases of serious economic offences involving blatant corruption at the higher range of executive and political power, the larger interests of the public and the State demand that the extraordinary power under S. 438 of the Code be not exercised in favour of the offenders at the very threshold of the investigation.
From a reading of the relevant provisions of the Code together, it is plain that in serious cognizable offences, the Code authorises the arrest and detention in custody of the offender for the first 24 hours without the interposition of the Magistracy and further police custody upto a period of 15 days with the authority of the Magistrate. It is clear that the arrest and interrogation in police custody for cognisable crime is not only visualised but expressly authorised by the Code. Therefore, a mere joining of a person in the course of the investigation whilst on anticipatory bail is no substitute for investigation in custody in all these cases where his personal interrogation may be legitimately required. There is hardly any case where a party seeking bail would not Zealously offer to join in the investigation thereof and to similarly undertake not to tamper with the witnesses. If this by itself were to be sufficient then the provisions of S. 167 (2) of the Code need hardly be ever resorted to.
There is nothing in S. 438 itself or in its Legislative history which could give the least indication that the provision was intended to override the legitimate procedure of investigation into serious crimes which has been prescribed by the Code itself in Ch. XII of which S.167 (2) forms the material part. Indeed, in the event of a conflict the discretionary grant of anticipatory bail must give way to the statutory rights and duties under S. 167(2) of the Code.
In Shri Gurbaksh Singh Sibbia v. The State of Punjab 1980. L.W. Cri. 135, the Supreme Court has held as follows-
No one can accuse the police of possessing a healing touch nor indeed does any one have misgivings in regard to constraints consequent upon confinement in police custody. But, society has come to accept and acquiesce in all that follows upon a police arrest with certain amount of snag fiord, in so far as the ordinary rut of criminal investigation is concerned.
The Legislature has conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail, because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the higher Courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail.
It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person, who has yet to lose his freedom by being arrested asks for freedom'' in the event of arrest. That is the stage at which it is imperative to protect his freedom, in sp far as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a nonmalleable offence asks for bail. In the latter situation, adequate data is available to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in S. 437.
S. 438 (1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has ''reason to believe'' that he may be arrested for a non-bailable offence. The use of the expression ''reason to believe'' shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere ''fear'' is not ''belief, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence must be capable of being examined by the Court objectively, because it is then alone that the Court can determine whether the applicant has reason to believe that he may be so arrested. S. 438 (1), there-fore" cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual''s liberty ; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely.
Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under S. 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of S. 438.
Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under S. 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R, is not yet filed.
Fourthly, anticipatory bail can be granted even after an F.I.R; is filed, so long as the applicant has not been arrested.
Fifthly, the provisions of S. 438 cannot be invoked after the arrest of the accused. The grant of anticipatory bail'' to an accused who is under arrest involves, a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned; After arrest, the accused must seek his remedy under S. 437, [or S. 439 of the Code, if he wants to be released. on bail in respect of the offence or offences for which he is arrested.
In the present case, it is relevant to note that in the petition it is stated in paragraph 3 that in the F.I.R., no specific overt act has been attributed against the petitioners and there is no eye witness to the alleged occurrence. It is further alleged therein that the only relevant fact is that the petitioners were last seen along with the other accused while they were pulling out the deceased from the bus and even there it was stated that the petitioners were standing. It is then alleged that the petitioners are innocent and they are from very respectable family, of course, a mention has also been made about the previous application Crl. M.P. 3460 of 1981, which was dismissed by this Court on 8th July, 1981.
Applying the ratio decided of the above cited decisions, this Court has got no other alternative except to dismiss the application at this stage. Accordingly it is dismissed.