BEJOY PAUL Vs. STATE

JUDGEMENT

(1.) This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. In view of the emphatic submissions made by the learned Public Prosecutor to the effect that in cases where the allegations, ex facie, attract application of section 498A of the Indian Penal Code, the Court, as a routine, must refuse anticipatory bail, we have thought it fit to pass a detailed order, embodying reasons for our disinclination to accept the correctness of such submissions.

(2.) Before adverting to the facts of the present case, it appears to us to be necessary, to recall and understand the effect and import of the views of the Apex Court, as expressed in some of its judgments on such point, to justify our approach as we propose to take hereinafter. In the case of Gurbax Singh Sibbia v. The State of Punjab and Sarbajit Singh v. The State of Punjab, reported in AIR 1980 SC, 1632, a five Judges' Bench of the Supreme Court made, inter alia, the following observations :-

(3.) The Court expressed its reluctance to re-write section 438 of the Code by introducing into it the restrictions imposed in the matter of grant of bail under Section 437(1) of the Code of Criminal Procedure and thus to prevent expansion of the scope and ambit of the discretion conferred on the High Court and the Court of Session and also laid down in no unmistakable term that there could be no straight jacket formula with regard to specified offences where anticipatory bail must have to be refused. The Court, while examining section 438(1), laid down that the only criterion, which makes an application maintainable under the said section, is existence of reasons to believe that the applicant may be arrested for a non-bailable offence and the reasonable belief must be on grounds, which are to or can be examined by Court objectively so that the Court may apply its own mind and decide whether the prayer for anticipatory bail ought to be allowed or rejected, notwithstanding non-filing of a First Information Report. It is pertinent to note that such applications are made at a stage when the applicant is enjoying the benefit or presumption of innocence and is yet to lose his freedom by being arrested-a situation which is strikingly dissimilar from the situation is which a person stands already arrested. The above distinction makes it all the more unjust to make a generalization and to attempt to discover formulae of universal application when facts are bound to differ from one case to the other. We cannot afford to over-look that any other approach would totally frustrate the legislative intend in conferring the discretion and may lead to undue impairment of the freedom of individual and the presumption of innocence, which so strongly holds the field since the origin of criminal jurisprudence. In this connection we feel tempted to quote further paragraph 15 of the judgment of the Supreme Court which runs as follows :-