Kunj Lal vs State

The petitioner seeks direction in terms of Section 497A Cr. P. C. from this Court that in the event of his arrest, he be admitted to bail on such

conditions as may be imposed by this Court.

Briefly stated the circumstances under which this petition has arisen are that during investigation of case FIR No: 60 of 1980, under Section

379/1 20B RPC, it transpired that one Shri G.S. Sadiqi, by entering into Criminal conspiracy with the petitioner and some others had

misappropriated 17191 scants of timber approximately valued at Rs. 30 lacs. Mr. Sadiqi, Divisional Manager, Government Lumbering

Undertaking, Doda was in this connection arrested by the police. The petitioner states in his application that he apprehends that he would also be

arrested on the accusation of having committed offence under sections 409/120B RPC and therefore be may be admitted to anticipatory bail.

The petitioner along with his other coaccused applied for anticipatory bail before the learned Sessions Judge, Bhaderwah, who rejected the

application vide order dated : 781980 The petitioner than moved this Court. Notice of the application was given to the Advocate General.

Objections were filed by the Addl. Advocate General on 2581980, in which it was stated that the petitioner had absconded and was not available

and that his arrest was required for making certain recoveries as also for the ascertainment of material facts regarding disposal of the property and

other persons who may also be involved in the whole affair and for effecting recoveries of some important documents from the Range Office. The

petitioner was the Ranger at the relevant time. It has further been asserted that in case the petitioner is released on bail, there is every possibility of

his tampering with the evidence as also jumping bail. The petitioner has filed rejoinder to the objections supported by an affidavit of one Thakar

Lal, brother of the petitioner. In the said rejoinder it has been stated that the petitioner does not have in his possession or control any record

pertaining to the case registered against him and others and has no knowledge about the allegedly embezzled timber and that the applicant would

neither jump bail nor temper with the evidence. Although, no prior permission had been sought to place the rejoinder on record, yet. I have

permitted the same to be taken on record at the time of hearing of the application.

Mr. J. S. Kotwal, learned counsel for the petitioner, has submitted that in view of the assertion made in the rejoinder affidavit that the petitioner

does not have with him any record and would neither jump bail nortemper with the evidence, the petitioner has met the objection of the State and

made out a case for being admitted to bail u/s 497A Cr.P.C. It is urged that the pensioner has not committed any offence, and it is not desirable

that he should be detained in custody when he is prepared to associate himself with the investigation. Stronger reliance is placed by the learned

counsel on Shri Gurbaksh Singh Sibbia & others V/s State of Punjab AIR 1980 (2) Sec. 565 to urge that since an order of anticipatory bail docs

not in any way take away from the police the right to investigate the charges made or to be made against persons released on bail, direction in term

of S. 497A Cr. P. C. should not normally be denied to an accused person. It is further submitted that a direction can be given to safe guard the

interest of the prosecution that in case any recovery is to be effected under sec. 27 of the Evidence Act, the accused would be deemed to have

surrendered himself to the custody of the police & led to the recovery.

Mr. A. K. Malik, learned Advocate General has serious objections to the grant of a direction in terms of Section 497A Cr. P. C. to the

petitioner. Relying upon the police diaries, it is argued that the case involves embezzlement of timber of the value of Rs. 30 laces, as a result of

criminal conspiracy and unless the police is allowed a free hand to interrogate the petitioner in their custody and effect certain recoveries from him,

the investigation would be seriously hampered. It is urged that though the grant of anticipatory bail is discriminatory, the court may exercise the

discretion with great caution and where the investigation reveals the complicity of the accused in the commission of a serious offence like the

present, orders for bail before arrest should not be made.

Section 497A Cr. P. C. corresponds to Section 438 (1) Criminal Procedure Code (Central) and is a now provision introduced in the Criminal

Procedure Code to provide for orders to the effect that in the event of the arrest of the applicant he should be admitted to bail. The provision was

introduced to save innocent persons from humiliation and harassment by preventing their detention in custody. The provision was not meant to aid

a person against whom there are accusations of a serious nature and there is some material to support those accusations. If the argument of Mr.

Kotwal is taken to the logical conclusion then it would imply that every accused, who can successfully evade his arrest, should be granted

anticipatory bail once he files an application u/s 497A Cr. P. C. That is not the intention of the legislature. The powers under section 497A Cr. P.

C. have to be sparinly used and should be invoked for furthering the ends of justice and saving 'innocent' persons from being harassed or

humiliated in appropriate cases. While considering the ambit and scope of Section 438(1) Cr.P.C. their Lordships of the Supreme Court in

Gurbaksh Singh Sibbia's case (Supra) opined that the grant of anticipatory bail was a matter of judicial discretion and no hard and fast rule could

be laid down in such discretionary matters like the grant or refusal of bail whether anticipatory or after arrest. Their Lordships declined to

categorise circumstances under which bail before arrest may be granted or refused. They, however, provided certain guide lines to assist the courts

to exercise their discretions. The following observations of their Lordships may, therefore, be noticed with advantage in this connection.

In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior

motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event

of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of

the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily

true That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to

be actuated by malafides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several

other considerations, too numerous to enumerate, the combined effect of which must weigh with the Court while granting or rejecting anticipatory

bail The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable

possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and ""the larger

interests of the public or the State"" are some of the considerations which the court has to keep in mind while deciding an application for

anticipatory bail"".

In the instant case, neither in the original petition nor in the rejoinder application or the affidavit is there any averment by the petitioner to the

effect that the accusation against him stems not from motives of furthering the ends of justice but from some ulterior motives. There is no averment

even to the extent that the object of the accusation is only to injure and humiliate him by having him arrested. Of course, it is not essential that there

must always be an accusation of malafide before an application for grant of anticipatory bail can be considered but then the court cannot lose eight

of the fact that the petitioner expresses no apprehensions of the type Noticed above. The nature of the charge against the petitioner as contained in

the FIR and the police diaries is serious. The fact that the allegations relate to embezzlement of a huge quantity of timber valued at Rs. 30 lacs

cannot be brushed aside. A perusal of the police diaries shows that investigation so far conducted has revealed the complicity of the petitioner in

the case right from the beginning. Whether or not the accusation is correct, is not to be seen at this stage as indeed such consideration would be

premature and I would not like to express any opinion on that aspect of the case. Suffice it to say that the accusation against the petitioner are of a

serious nature. In the objections filed on behalf of the State, it is averred that arrest of the petitioner is required for making certain recoveries and

for ascertainment of material facts regarding the disposal of the property and involvement of other persons in the conspiracy. By no stretch of

imagination can it be said that the grounds given in the objections to oppose the grant of anticipatory bail of the petitioner or either extraneous or

irrelevant. Since, an order of anticipatory bail is somewhat of an extra ordinary character, while exercising discretion the court must be satisfied that

a fit case had been made out by the accused for the exercise of discretion. Applying the guidelines given by the Supreme Court in Sibbia's case

(Supra) I find that the petitioner has not made out any case for being admitted to anticipatory bail. Considering, the facts and circumstances of the

case the seriousness of the accusation and the larger interest of the public and the State, I do not find any justification to admit the petitioner to

anticipatory bail. The reasons given by the learned Sessions Judge for rejecting the prayer of bail in his order dated 781980 are sound and cogent

and call for no interference. The petition is accordingly rejected

Before parting, I would, however, like to make it clear that the dismissal of this application shall not stand in the way of the petitioner from

making an application for bail after his arrest It shall be open to the court before which the application is then made to dispose it of on merits,

uninfluenced by the dismissal of the present application for the grant of anticipatory bail.

Immediately after the order was announced Mr. J. S. Kotwal learned counsel for the petitioner prayed for leave to appeal to the Supreme Court

under Art. 132 (1) and Art. 134 (1) (c) of the Constitution of India. It is submitted by Mr. Kotwal that the order refusing anticipatory bail is

violative of Art. 21 of the Constitution of India and that the guidelines given by the Supreme Court in Sibba's case have not been adhered to.

A certificate under Art 132 (1) of the Constitution can be granted where the case involves a substantial question of law as to the interpretation

of the Constitution No such question of law was canvassed at the time of hearing, nor is any such question of law as regards the interpretation of

Constitution involved in the present case The effect of Art 21 of the Constitution of India was considered by the r Lordship of Supreme Court in

Sibbia's case and the order from which the leave is sought has taken full note of the same.

So far as the certificate under Art. 134 (1) (c) is concerned, I do not find that it is a fit case for appeal to the Supreme Court because the law

has been settled by the Supreme Court in Sibbia's case which has been noticed and followed by this Court

Under these circumstances the leave prayed for is refused.