PANKAJ LOCHAN SAHOO Vs. STATE OF W B

JUDGEMENT

(1.) The preliminary objection taken by Kazi Safiulla the learned P.P. appearing for the State against this application for anticipatory bail filed on behalf of one Pankaj Lochan Sahoo and another is that such an application under Section 438, Cr. P.c. does not lie and is not maintainable in connection with the cases instituted otherwise than on police report. The petitioners have prayed for anticipatory bail in connection with a complaint case being No.18 of 1995 pending before the learned S.D.J.M. Contain under Sections 498A/323, IPC filed by one Gouri Rani Sahoo the wife of the petitioner No 1.

(2.) It has been submitted by the learned P.P. that the order of anticipatory bail is directed against the police when a case is pending or has been started on the basis of a police report and that such direction cannot be issued Section 438, Cr. P.C. in a complaint case where the Magistrate on receiving a complaint has proceeded under Section 200 read with Section 202, Cr. P C. In other words. the sum and substance of the learned P.P.Ts argument is that the benefit of Section 438 can be given to a person only when he is involved in a police case on the accusation of having committed a non-bailable offence. According to the learned P.-P.-, in a complaint case or in a case instituted otherwise than on police report the remedy under Section 438. Cr. P.C. cannot be given to a person although there may be an accusation of his having committed a non-bailable offence.- The learned P.-P. - has drawn our attention to Sub-clauses (i), (ii), (iii) & (iv) of Sub- section (2) and also to Sub-section (3) of Section 438 of the Criminal Procedure Code to substantiate his contention.

(3.) But, it is difficult to agree with the proposition of the learned P.P. that a person. being accused of having committed a non-bailable offence in a complaint case is not entitled to a remedy under Section 438, Cr. P. C. The provisions of Section 438. Cr. P. C. are clear and unambiguous. - Nowhere it has been stated that in cases instituted otherwise on police report Section 438 has no application.- On the other hand, it has been clearly provided under Section 438(1) that when any person has reason to believe that he may be arrested on the accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section; and that Co court may, if it deems fit, direct that in the event of such arrest he shall be released on bail. Section 438 provides for a general remedy for a person having a reason to believe that he may be arrested on accusation of having committed a non-bailable offence. It is immaterial whether such accusation has been made in a case started by the police or during an investigation initiated by the police or the same has been made in a complaint filed before the Magistrate under Section 200, Cr. P.c. The learned P. P. has referred to a decision of this High Court reported in 1975 Cr. L.J. page 1815 (In re: Puma Chandra Chatterjee), and to a decision of the Supreme Court reported in (Polkar Ram v. State of Rajasthan and Others). - But, none of these decisions support the above contention of the learned P.P.