MADAN MOHAN SAHOO Vs. STATE OF ORISSA

JUDGEMENT

(1.) Two points which have arisen in this case for consideration are of seminal importance. First is whether the High Court can act in terms of Sec. 438 of the Code of Criminal Procedure, 1973 (in short, 'the Code') in respect of an offence alleged to have been committed outside the State to which it relates. In other words, can such power be exercised by any High Court or any Court of Session within the country irrespective of the locale of the commission of offence. There is divergence of opinion on this aspect by several High Courts. Calcutta High Court, Delhi High Court, Karnataka High Court and Bombay High Court have taken the view in the affirmative [See B. R. Sinha v. The State, 1982 Cri LJ 61 (Cal); Pritam Singh v. State of Punjab, 1980 Cri LJ 1174 (Delhi); Dr. L. R. Naidu v. State of Karnataka, 1984 Cri LJ 757 and N. K. Nayar v. State of Maharashtra, 1983 Cri LJ 1887, respectively]. The contrary view has been expressed by Patna High Court, Kerala High Court, Punjab and Haryana High Court Madhya Pradesh High Court and Jammu and Kashmir High Court. (See Syed Zafrul Hussen v. State 1986 Cri LJ 605 (AIR 1986 Pat 194) (FB); C. T. Mathew v. Govt. of India; Home Deptt., 1985 Cri LJ 1316 (Ker); Ravinder Mohan v. State of Punjab, 1984 Cri LJ 714 (Pun and Har); Dr. Pradeep Kumar Soni v. State of Madhya Pradesh, 1990 Cri LJ 2055 (Madh Pra) and Mohan Singh Parihar v. Commissioner of Police New Delhi, 1983 Cri LJ 1182 (J and K). Second question is whether an interim order restraining arrest can be passed.

(2.) Petitioner's case, so far as factual aspects are concerned, runs as follows. On the basis of first information report lodged by Shri Suman Rao, Inspector of Police, D.E.B. Midnapore, P. S. Case No. 103 of 1994 was registered. Petitioners along with five others have been arraigned as accused for offences punishable under Sec. 7 (1)(a)(ii) of the Essential Commodities Act, 1955 (in short, 'the Act'), Sec. 426 of the Indian Penal Code 1860 (in short, 'the IPC') for violation of para 3 of West Bengal Pulses, Edible Oil Seeds and Edible Oil (Dealers Licence) Order, 1978. Petitioners claim that they were transporting ground-nuts legally from Orissa to West Bengal and under erroneous premises the case has been instituted. Since attempt is being made to arrest them, they seek protection under S. 438 of the Code.

(3.) It is necessary to set out the scope and ambit of S. 438 of the Code before I grapple with the problem at hand. The facility which S. 438 of the Code gives is generally referred to as 'anticipatory bail'. This expression which was used by the Law Commission in its 41st Report is neither used in the Section nor its marginal note. But the expression 'anticipatory bail' is a convenient mode of indication that it is possible to apply for bail in anticipation of arrest. Any order of bail can be effective only from the time of arrest of the accused. Wharton's Law Lexicon explains 'bail' as 'to set at liberty a person arrested or imprisoned, on security being taken for his appearance'. Thus, bail is basically release from restraint, more particularly the custody of Police. The distinction between an ordinary order of bail and an order under S. 439 of the Code is that whereas the former is granted after arrest, and therefore means release from custody of the Police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.Sec. 46 (1) of the Code, which deals with how arrests are to be made, provides that in making an arrest the Police Officer or other person making the same "shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action". The order under Sec. 438 of the Code is intended to confer conditional immunity from the touch as envisaged by Sec. 46(1) of the Code or any confinement. The apex Court in Balachand Jain v. State of Madhya Pradesh, AIR 1977 SC 366 : (1977 Cri LJ 225) has described the expression 'anticipatory bail' as misnomer. It is well-known that bail is ordinary manifestation of arrest, that the Court thinks first to make an order is that in the event of arrest a person shall be released on bail. Manifestly there is no question of release on bail unless the accused is arrested, and therefore, it is only on an arrest being effected the order becomes operative. The power exercisable under Sec. 438 is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty then power is to be exercised under Sec. 438. The power being of important nature it is entrusted only to the higher echelons of judicial forums, i.e. the Court of Session or the High Court. It is the power exercisable in case of an anticipated accusation of non-bailable offence. The object which is sought to he achieved by Sec. 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to jail.