KALIDAS SARUPCHAND THAKKAR Vs. RAJUBEN MAHADEVBHAI THAKKAR

JUDGEMENT

(1.) This petition is with a grievance against the order of the learned Sessions Judge Banaskantha at Palanpur releasing opponents nos. 1 and 2 on anticipatory bail of Rs. 3 0 each in case the learned Magistrate issues a non-bailable warrant. ... ... ... ... ... ... ... ... ...

(2.) It is submitted by Mr. J. G. Shah Advocate for the petitioner that though now as decided by the Supreme Court in Gurubaksh Singh Sibbia v. State of Punjab AIR 1980 Supreme Court 1632 and by this Court in Baldevbhai Natvarlal Barot v. State 23 (1) Gujarat Law Reporter 56 the limitation under sec. 437 of the Code cannot be brought into a case wherein a person is to be released on anticipatory bail still however the Court should have considered the facts and circumstances of the case to come to the conclusion whether it was a fit case in which order for anticipatory bail should have been passed.

(3.) Reading of the order of the learned Sessions Judge does not show that he considered this aspect at all. The learned Sessions Judge observed that there is an inquiry before the Magistrate but the applicants apprehend that the Magistrate may issue non-bailable warrant against them and considered that this apprehension is well-founded because the High Court has directed the Magistrate to proceed with the inquiry in accordance with law. The learned Sessions Judge therefore considered that under sec. 438(1) of the Code the Court of Sessions can grant anticipatory bail because under sub-sec. (3) of sec. 438 of the Code if the Magistrate taking congizance of such offence decides that a warrant should issue in the first instance against that person then he has to issue a bailable warrant in conformity with the direction of the Court. Then the learned Sessions Judge considered that in the instant case the applicants were to be proceeded with in connection with the offence of murder and therefore this was a fit case in which the applicants be released on bail of Rs. 3 0