BHARAT CHANDRA KUNDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This is an application under Section 438 of the Code of Criminal Procedure, 1973 (in short, 'the Code'). Petitioner apprehends arrest in Rajanagar P.S. Case No. 72 of 1995 corresponding to which a G.R. case has been instituted in the Court of Sub -Divisional Judicial Magistrate, Kendrapara.

(2.) PETITIONER 's case is that accusations forming foundation of the case related to Section 498A of the Indian Penal Code, 1860 (in short, UPC), and Section 4 of the Dowry Prohibition Act, 1961 (in short, 'Dowry Act'), he is innocent and attempt is being made to falsely implicate him. According to learned Counsel for the State ample materials exist to link petitioner. Considering the submissions and on perusal of records. I do not consider this case to be a fit one where exercise of power under Section 438 of the Code is called for. - -

(3.) AT this juncture it is necessary to quote the observations of the Apex Court in Salauddin Abdul Samad Shaikh's case (Supra) about the real import of Section 438 of the Code. 'Under Section 438 of the Code when any person has reason to believe that he may be a arrested on an accusation of having committed a non - bailable offence, the High Court or the Court of Sessions may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and in passing that order, it may include such conditions having regard to the facts of the particular case, as it may deem appropriate. Anticipatory bail is granted in anticipation of arrest in non -bailable cases, but that does not mean that the regular Court, which is to try the offender, is sought to be by -passed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular Court for bail. That is the correct procedure to follow because it must be realised that when the Court of Sessions or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge - sheet is submitted. It should be realised that an order of anticipatory bail could even be obtained in cases of a serious nature as for example murder and, therefore, it is essential that the duration of that order should be limited and ordinarily the Court granting anticipatory bail should not substitute itself for the original Court which is expected to deal with the offence. It is that Court which has then to consider whether, having regard to the material placed before it, the accused person is entitled to bail.' The application is accordingly disposed of.