BALDEVBHAI NATVERLAL BAROT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Whether after the decision of the Supreme Court in Gurubaksh Singh v. State of Punjab A.I.R. 1980 Supreme Court 1632 the view expressed by a Division Bench of this Court in Narsinh Revaji v. State (1981) 22 G. L. R. 234 to the following effect.

(2.) The Supreme Court in Balchand v. State of M. P. A.I.R. 1977 S. C. 366 was called upon to decide whether an order of anticipatory bail can be competently made by a Court of Session or a High Court under section 438 of the Code of Criminal Procedure 1973 (for short the Code) in case of offences falling under Rule 184 of the Defence and Internal Security of India Rules 1981 Bhagwati J. speaking for himself and A. C. Gupta J. confined himself to the question pointedly raised before the Court and observed that the power conferred on a Court of Session or a High Court under sec. 438 to grant anticipatory bail is not taken away by Rule 184 in case of persons apprehending arrest on an accusation of having committed contravention of any Rule or order made under the Rules ... Fazal Ali J. who dictated a separate but concurring judgment however considered the historical background leading to the introduction of sec. 438 in the Code and after considering the language of secs. 437 and 438 observed as under :

(3.) It transpires from the observations made in paragraph 9 of that judgment that the controversy between the parties was whether the power to grant anticipatory bail under sec. 438 of the Code is left to the sole discretion of the Court concerned depending on the facts and circum- stances of each particular case or that the grant of anticipatory bail should at least be conditional upon the applicant showing that he is likely to be arrested for an ulterior motive that is to say that the proposed charge or charges are evidently baseless and are actuated by mala fides. Dealing with the latter submission of the learned Additional Solicitor General the Supreme Court observed as under in paragraph 12 of its judgment :-