Vir Singh vs The State of Haryana

Rajendra Nath Mittal, J.—This application has been filed by Vir Singh, u/s 438, Criminal Procedure Code (hereinafter referred to as the Code), praying that anticipatory bail may be granted to him. The application has been opposed by the State Counsel.

It has been argued by the learned counsel for the State that the petitioner made an application for anticipatory bail earlier in August, 1977, which was rejected by this Court. He has further argued that thereafter the petitioner went underground and was not available to the police and consequently proclamation was got published against him. According to the counsel, the petitioner remained absconded inspite of the proclamation and, therefore, the Court ordered attachment of his property. He has further brought to my notice that certain recoveries are to be made from him. In the circumstances he submits that he should not be granted anticipatory bail under the provisions of section 438 of the Code. On the otherhand, the learned counsel for the petitioner vehemently urges that while granting anticipatory bail u/s 438, these matters should not be taken into consideration. In support of his contention, he referred to a Supreme Court judgment reported in Balchand Jain v. State of Madhya Pradesh AIR 1977 S.C. 366

I have heard the learned counsel for the parties but regret my inability to accept the contention of the learned counsel for the petitioner. A full Bench of this Court, in Gurbaksh Singh Sibia v. State of Punjab (1977) 79 P.L.R. 634, has laid down the circumstances in which anticipatory bail may be allowed u/s 438 of the Code. It inter alia laid down that the power u/s 438 is of an extraordinary character and must be exercised sparingly in exceptional cases only; that in addition to the limitations imposed in section 437 of the Code, the petitioner must make out a special case for the exercise of the power to grant anticipatory bail, and that where a legitimate case for the remand of the offender do the police custody u/s 167(2) can be made out by the Investigating Agency or a reasonable claim to secure incriminating material from information likely to be received from the offender u/s 27 of the Evidence Act can be made out, the power u/s 438 of the Code be not exercised. In the present case, I have already mentioned that an application for anticipatory bail was made by the petitioner earlier, which was rejected by this Court. That shows that the petitioner was apprehensive of arrest at any time. He, it appears, thereafter absconded to evade arrests and consequently the Magistrate ordered publication of proclamation against him. When he did not appear inspite of the proclamation, the Court ordered attachment of his property. The above circumstances cannot be overlooked while concession of anticipatory bail is to be granted to the petitioner. Moreover, according to the counsel for the State, certain recoveries are to be made from him. Thus if the tests laid down by the Full Bench in Gurbux Singh Saibia''s case are applied to the present case, the petitioner cannot be held to been tilled to anticipatory bail. Balchand Jain''s case was decided in a different set of circumstances. The petitioner cannot derive any benefit from the ratio in that case.

For the reasons recorded above, this petition fails and the same is dismissed.