GABRIEL JOSEPH Vs. FEROZ GULAM SARVAR KHAN

JUDGEMENT

(1.) THIS, petition has been presented by the original complainant in C. R. No. 364 of 1990 registered by the Andheri Police Station and is directed against an order dated 29-8-1990 of anticipatory bail granted to respondents Nos. 1 and 2 herein, by the Additional Sessions Judge. The petition was filed before this Court on 7-11-1990 and for a variety of reasons has not been disposed of until the present point of time.

(2.) SHRI Shamrao G. Samant, learned Counsel appearing on behalf of the petitioner, made a strong grievance to the effect that applications of the present type ought to be taken up and disposed of with utmost expediency as otherwise the entire object of the litigant having moved the High Court gets frustrated. While quoting the history of what has happened in this case, Shri Samant submits that even if any relief is granted in the present petition, it would be of little avail now because it may not be possible to effectively undo damage that has occurred due to the efflux of time. Shri Samant also stated at the Bar that the respondents Nos. 1 and 2 Original accused have left this country and therefore, even if the bail comes to be cancelled, it will be of no avail. The grievance made by Mr. Samant is justified and it is rather unfortunate that the petition was not heard for the last almost one year, but it was in any event upon (sic) if the urgency was utmost, that an application ought to have been made to any of the learned Judges to hear this petition out of turn.

(3.) COMING basically to the merits of the petition, the order dated 29-8-1990 which is an order passed u/ S. 438 of the Code of Criminal Procedure, granting anticipatory bail to the two respondents who are original accused, has been very seriously challenged both on a point of law as also with regard to the guilt of the accused and the situation under which it was passed. Having heard the learned counsel for the petitioner, I am in agreement with what has been submitted by him because the order in question which is a cryptic order does not appear to be totally and thoroughly justified and as will be pointed out presently, such an order, in the circumstances of the case, ought not to have been passed at all. S. 438 of the Code of Criminal Procedure was granted on to the new Code to take care of certain classes of cases and the statement of objects and reasons behind the amendment very well indicates that it was enacted in order to protect a litigant against possible false, malicious or vexatious criminal proceedings. The object of incorporating S. 438 of the Code of Criminal Procedure on to the statute book was not intended to stifle an investigation or to impede it.