SOMABHAI CHATURBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Considerations which must be kept on the mental screen and precautions which may be taken in disposing of an application for anticipatory bail under sec. 438 of the Code of Criminal Procedure 1973 require to be spelled out in order that the provision is meaningfully applied and judicial discretion is exercised in an appropriate manner in such matters.

(2.) As was visualized by the Law Commission sometimes false accu- sations may be levelled against persons just with a view to cause them embarrassment arising out of the social stigma of an arrest and the circumstance that a man has to remain in jail albeit till he is released on bail. It may also happen that the competent authority may place a person (against whom an accusation of having committed a non-bailable offence is levelled) under arrest say on the eve of a holiday or at a time when the Courts are closed. The purpose of sec. 438 inter alia appears to be to secure that such a person is not obliged to go to jail till he is able to move the Count for being released on bail.

(3.) Sec. 438 itself is widely worded and does not engraft any limita- tions on the power of the Court in case a person who has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence makes an application invoking the powers of the Court for a direction granting anticipatory bail. Even so the powers have to be exercised in a judicial manner with the end in view that whilst the object of the provision is served the pitfalls inherent in the situation are eschewed.