MOHAN BEHERA Vs. STATE

JUDGEMENT

(1.) ACCUSED of an offence punishable under section 307 react with section 34 of the Indian Penal Code, the petitioners seek an order under section 438 of the Code of Criminal Procedure (for short, 'the Code') for anticipatory bail. As averred in the application and submitted before this Court, the petitioners had been arrested and released on bail by the investigating police officer in the course of investigation and three other persons accured of the same offence in the same case had been released on bail at that stage under section 438 of the Code. A charge -sheet has now been placed, cognisance has been taken and it has been submitted on behalf of the petitioners that in pursuance of the warrants of arrest issued against the petitioners, the police agency is searching for them for their arrest and production in the Court of the learned Subdivisional Judicial Magistrate, Nayagarh. One of the petitioners is said to be a Law Graduate who has applied to the State Bar Council for enrolment as an Advocate, as stated in the application. In these circumstances, the learned counsel for the petitioners has submitted that it is a fit case in which an order under section 438 of the Code should be passed. This application has been resisted by the State and it has been submitted that when on the basis of the materials placed by the investigating agency, cognisance of the offence has been taken and after their arrest, the petitioners had already been released on bail and now after proper application of mind, warrants of arrest have been issued by the learnedSub -divisional Judicial Magistrate, the application under section 438 of the Code is not competent and should not be allowed.

(2.) THE provision relating to anticipatory bail has not been made to help persons accused of commission of grave and heinous offences avoiding their arrest. Recommending to keep a provision for anticipatory bail, the Law Commission had 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. Apart 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.'

(3.) THE question as to whether an order under section 438 of the Code can be passed after processes are issued by a Court came up for consideration in 51 (1981) C. L. T. 391 : Bhramar alias Bhramarbar Mahapatra and Anr. v. State of Orissa, where the question also arose as to what would be the meaning of the word 'appearance' within the meaning of section 437 of the Code. The interpretation given in respect of the word 'appearance' has not been accepted by a Division Bench of this Court in 55 (1983) C. L. T. 419 : State v. Maguni Charan Sahu andOrs., with which this Court is not concerned in the instant case. With regard to the relevant question involved, this Court has held that section 438 deals with the grant of anticipatory bail which means bail in . anticipation of arrest and this section does not take in its ambit the case of an accused against whom a Court has already issued process by taking cognisance of the offence. The principles laid down in AIR 1980 S. C. 1632 (supra), had not been referred to, but the view of this Court is not contrary to any of the views expressed by the Supreme Court therein.