STATE OF MAHARASHTRA Vs. VISHWAS SHRIPATI PATIL

JUDGEMENT

(1.) THESE two applications are filed by the State purporting to be under Article 227 of the Constitution of India and also under Section 482 read with Section 439(2) of the Code of Criminal Procedure and challenge mainly the order passed by the Additional Sessions Judge, Kolhapur, refusing to entertain an application for cancellation of an order directing release of the accused persons under Section 438 of the Code of Criminal Procedure. Effective order has been made to this effect rejecting Miscellaneous Criminal Application No. 22 of 1978, while there is no effective application with regard to order made in Miscellaneous Criminal Application No. 21 of 1978. Upon the first rejection, the State has moved these two separate petitions.

(2.) IT is not necessary in these two applications to examine in closer details the validity of the orders made by the learned Additional Sessions Judge rejecting the application of the State for cancellation of the Orders under Sections 438 as premature both for the State as well for the accused, written Purshis has been filed that these Miscellaneous Criminal Applications should be disposed of on merits and the same should be decided by the Sessions Judge, Kolhapur, himself or by any other Additional Sessions Judge, Kolhapur, excepting the learned Judge who made the impugned order. The terms are set out in the written Purshis and Mr. Paranjpe for the accused has subscribed to the same. Particularly, the accused have undertaken as stated in paragraph 5 of the said written Purshis that all of them except accused No. 4 Lala Saheb Sadashiv Patil would report to the Shahuwadi police station every morning between 9.00 a.m. and 10.00 a.m. and make themselves available for interrogation during the course of the day till further orders are passed by the learned Sessions Judge in these Miscellaneous Criminal Applications. It is treated as an undertaking to the Court. It is further agreed between the parties that these Miscellaneous Criminal Applications should be heard by the learned Sessions Judge in the week beginning from April 10, 1978. All the accused except accused No. 4 Lala would remain present on April 10, 1978 in the Court of the Sessions Judge, Kolhapur.

(3.) THE provisions of Section 438 are not to be mechanically applied. They operate upon the reasonable apprehension of having been concerned with the commission of non -bailable offence and require the Court to make an order consistently to indicate the reasons as to why the Court is inclined to make the orders of bail in anticipation of arrest of such person. The phraseology 'if it deems fit' available in the body of the section reading with Sub -section (2) thereof is indicative enough that such order on the face of it must show the reasons for making the order. The initial order herein suffers from this infirmity in that it does not disclose any reason why the order as to anticipatory bail was being made and further the rule of prudence of giving notice to the other side before passing the anticipatory bail was not being followed. In Balchand's case Supreme Court in the terms laid down the practice of prudence of making in urgent cases only interim order and confirming it after notice to opposite party.