K JAGDISH Vs. DY SUPERINTENDENT OF POLICE

JUDGEMENT

(1.) The question that arises in this case is whether the doctrine of anticipatory bail enshrined in Section 438 of the Code of Criminal Procedure, 1973 (herein after referred to as the Code) can be invoked by the persons accused of economic offences punishable under the Essential Commodities Act, 1955 (hereinafter referred t,) as the Act). When the case came up for hearing before Ramanujulu Naidu, J., the learned Judge referred it to a Division Bench as he felt having regard to the general interest and public importance of the question and the divergence of judicial opinion on the same, an authoritative pronouncement by a Division Bench was desirable. So the case is now posted before us.

(2.) The petitioner is a commission agent appointed by the Andhra Pradesh State Civil Supplies Corporation Limited and also by the Andhra Pradesh State Essential Commodities Corporation Limited for the distribution of essential commodities like cement, sugar, rice, wheat, palmolive oil etc., in Satyaveedu taluk, Chittoor District. He filed an application invoking the provisions of Section 438 of the Code and seeking anticipatory bail in the event of his arrest alleging that one Venkatasivaiah Naidu and Jayachandra Naidu, who were unsuccessful in getting the agency, were trying to foist false cases against him now under Section 7(1) of the Act on the basis of certain alleged irregularities said to have been committed in the maintenance of accounts by a fair price shop dealer in Nagalapuram village, Satyaveedu taluk and the petitioner on 3-4-1984.

(3.) The question is can such a person apply for bail in anticipation of arrest or detention which had not taken place, but which is likely to take place in the near future? Bail in anticipation of arrest or detention is styled as anticipatory bail. There was no specific provision in the old Code of 1898 for anticipatory bail or a prospective order for bail. There was conflict of judicial opinion on the question whether a person can apply for being released on bail even though he has not yet been arrested or detained or brought before the Court. According to one view, bail can be granted by the Courts even though the person seeking bail is not under arrest or detention and he is not even physically present before the Court. The other view was only when a person presents himself before the Court with a prayer for being released on bail, the application for release on bail can be considered. To say that a person who has not yet been arrested and is evading legal process can be released on bail and then allow him to remain at large is one not contemplated by the Code, Section 438 is a new provision introduced, in the Code of 1973 on the recommendation of the Law Commission. It is, therefore, useful to read the objects and reasons for recommending the introduction of the provision in the new Code. The Law Commission in its 41st report said; Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. A part from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.'