Sunny vs State of Kerala

P.V. Narayanan Nambiar, J.—Apprehending arrest by the Excise Officials in a non-bailable offence, the Petitioner filed an application u/s 438 Code of Criminal Procedure before the Court of Session, Ernakulam for a direction that he may be ordered to be released on bail in the event of his arrest. He is the accused in a crime registered by the Excise Inspector, Tripunithura alleging offence punishable u/s 55(a) and (i) of the Abkari Act. The Court of Session dismissed the application holding that the provisions contained in Section 438 Code of Criminal Procedure are not applicable in case of arrest by Excise Officials and that the same are applicable only to cases where arrest is to be effected by the police. Reliance was placed in the provision contained in Section 438(3) Code of Criminal Procedure to come to such conclusion. The Court of Session concluded that a direction can be given to release a person who is arrested by the police only and the provisions contained in Section 438 Code of Criminal Procedure do not apply to arrest by any official other than the police. The Petitioner challenges the order of the Court of Session and seeks his release in the event of arrest.

It is the prosecution case that the Petitioner was found carrying two bags containing contrabands and that when he saw the excise officers, fled from the place abandoning the bags on the road side. Search of the bags revealed concealment of 6.030 litres of Indian made foreign liquor. Hence, it is the prosecution allegation that the accused is liable to be punished u/s 55(a) and (i) of the Abkari Act.

I will first consider whether the provisions contained in Section 438(1) Code of Criminal Procedure are applicable in case of arrest by an Excise officer or any officer other than a police officer. Section 438 of the Code is extracted here under:

Direction for grant of bail to a person apprehending arrest.- (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the Hith Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of Such arrest, he shall be released on bail.

(2) When the High Court or the Court of Sessions makes a direction under Sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the court;

(iv) such other condition as may be imposed under Sub-section (3) of Section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section (1).

On a reading of the provisions contained in Section 438 Code of Criminal Procedure, it is clear that Section 438(1) Code of Criminal Procedure is a substantive provision and is not controlled by Sub-section (3) to Section 438. The High Court or the Court of Session, if it thinks fit, may direct release on bail any person who has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. There is nothing in Sub-section (1) to indicate that the apprehension of arrest should be only by a police officer and none other. Under Sub-section (2), while granting an order under Sub-section (1), directions may be issued including the directions mentioned in Clauses (i) to (iv) of Sub-section (2). Under Sub-section (3), directions may be issued to the effect that if such a person is arrested without warrant by any officer in charge of a police station, he shall be released on furnishing bail if a Magistrate taking cognizance of such a case decides that a warrant should be issued in the first instance, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section (1). While Sub-section (1) is substantive in nature, Sub-sections (2) and (3) are procedural. Hence, it cannot be said that the provisions contained in Section 438(1) Code of Criminal Procedure apply only in cases where arrest is threatened by a police officer. It applies as well to arrest by any officer other than the police officer.

I am supported by the decision of the High Court of Karnataka reported in H.S. Manjunath and another Vs. State of Karnataka and another, , in which the High Court of Karnataka considered the question whether the provisions contained in Section 438 Code of Criminal Procedure could be applied when arrest is sought for by a Forest Officer and held in the affirmative. The High Court of Madras in the decision reported in E. Joseph and Another Vs. The Assistant Collector of Customs, Tuticorin, also held the view that the provisions of Section 438 Code of Criminal Procedure can be applied with respect to offences contemplated under Customs Act and anticipatory bail can be granted. The High Court of Delhi in the decision reported in Suresh Vasudeva Vs. State and Another, . also held that the provisions contained in Section 438(1) Code of Criminal Procedure are applicable to a non-bailable offence alleged to have been committed under the Foreign Exchange Regulation Act.

In view of what is stated above, it is clear that the Court of Session was not justified in rejecting the application for anticipatory bail on the sole ground that Section 438 Code of Criminal Procedure is not applicable in a case of threatend arrest by an Abkari officer.

But on hearing counsel for the Petitioner as well as the Public Prosecutor, I am of the view that the Petitioner is not entitled to be released on bail on the facts and circumstances of the case. He is accused of an offence punishable u/s 55(a) and (i) of the Abkari Act. From the facts it cannot be said that the Petitioner is totally innocent of the allegations raised against him. Though he fled from the place, his identity has been established by questioning the witnesses who were present at the spot. Offence alleged against him is serious in nature. Hence, in the absence of any special or extraordinary circumstances, I am not inclined to grant pre-arrest bail to the Petitioner. The Supreme Court has often reminded the High Courts and the Sessions Courts that the provisions contained in Section 438 Code of Criminal Procedure should be applied very sparingly and the extraordinary remedy under the section should be resorted to only in special cases. I am of opinion that this is not a fit case where such a remedy should be extended to the Petitioner.

The Crl. M.C. is accordingly dismissed.