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Judgment
Anand Byrareddy, J.—Heard the learned counsel for the petitioners. The first petitioner is said to be married to one Zainab Jahan. It is claimed that there is discord between the petitioner and his wife and they are living separately since three months. It is further stated that there has been continuous threat from the petitioner''s wife and her family of implicating the petitioner and his family members who are petitioners herein in a criminal case. It is with great difficulty that the petitioner has been attending to his day to day affairs in the constant apprehension that he and his family members would be arrested on the basis of the false allegations made by his wife. The petitioner is said to be employed in a prestigious multinational company and if any case is registered against him and if he is taken into custody he faces the prospect of immediate termination from employment by his employer. In this state of affairs, the petitioner had approached the Court below seeking anticipatory bail. The Court below has opined that the petitioner only suffers from a fear that he may be arrested and there should be reasonable apprehension and it is different from merely claiming a fear that is harboured by the petitioner. No blanket order of anticipatory bail could be granted to be used as a shield to protect him from any form of complaint and from any person, notwithstanding the attention of the Court below having been drawn to the decision of the Apex Court in Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, which has been extensively relied upon and followed by the Supreme Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others,
Given the circumstances of the case and the law laid down by the Apex Court, insofar as exercise of power u/s 438 of Cr.P.C. is concerned, the circumstances in which it could be exercised is referred to by the Court below and the negative aspects declared by the Supreme Court having been highlighted, the Court below has proceeded to reject the bail petition. However, given the facts and circumstances of the present case on hand, where not only the petitioner but his parents also claim to have suffered at the hands of the wife of the petitioner, it cannot be said to be mere fear and there is a reasonable apprehension, having regard to the law laid down by the Supreme Court which reads as follows:-
Section 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. Section 438(1), therefore, 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 418 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 u/s 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.
Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power u/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 Section 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 u/s 437 or Section 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 on hand, anticipatory bail being granted to the petitioner would neither be a device nor a protection for commission of crime nor would be a shield against any and all kinds of accusations but it is intended to be a shield against a possible complaint which is expected to be filed by his wife which the petitioner apprehends. The petitioner and his family members being placed on terms, could be granted anticipatory bail.
Consequently, the petition is allowed. In the event the petitioners are arrested, they shall be enlarged on bail subject to the following conditions:-
(a) That the petitioners shall execute a self bond for a sum of Rs. 10,000/- each with a solvent surety for a like sum to the satisfaction of the concerned police;
(b) That the petitioners shall not seek to influence the prosecution witnesses in any manner;
(c) That the petitioners shall attend the Court on all dates of hearing; and
(d) That the petitioners shall cooperate with the Investigating Authority.