SHYAM SUNDAR JHANWAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) HEARD Mr. Dhal, learned Counsel for the petitioners and the learned Counsel for the States. This is an application under Section 438 Cr.P.C. for grant of anticipatory bail to the petitioners. At the inception, learned Counsel for the State submits that as no F.I.R. has been lodged making any allegation against the present petitioners before the Balasore Town Police Station, Balasore, there cannot be any apprehension of arrest in the mind of the petitioners and this application for anticipatory bail cannot be maintained.

(2.) MR . Dhal, learned Counsel for the petitioners, on the contrary submits that Court would exercise its jurisdiction under Section 438 Cr.P.C., if it is found that the petitioners substantiate prima facie that they have a reason to believe that they may be arrested in connection with a non -bailable offence. In the instant case, the petitioners have alleged that petitioners Nos. 1 and 2 are parents of one Uma Shankar Jhanwar and the petitioner No. 3 is his brother and son of petitioner Nos. 1 and 2. The said Uma Shankar Jhanwar got married to one Manisha, who is the daughter of one Jagdish Prasad Lakhotia. After the marriage of Uma Shankar with Manisha on 20.11.2003, both of them stayed with the petitioner for about seven months and thereafter, they resided separately from the petitioners. In the month of July, 2007, there was a division of the properties in which Uma Shankar had a share and upon accepting his share, in order to avoid disputes, the said Uma Shankar gave a written undertaking on a stamp paper that after receiving financial help from petitioner No. 1, he will start his own independent business and shall keep no relationship with the petitioners. Accordingly, after taking his share, Uma Shankar with his wife left for Baripada with their belongings and started a firm in the name and style of M/s. US Agency at Baripada. They severed all relationship with the petitioners and even never intimated the fact that they have been blessed with a child, to the petitioners 1 and 2.

(3.) THE distinction between 'reason to believe' that a person may be arrested for a non -bailable offence and a mere 'fear' that a person may be arrested has been discussed in the case of Gurbaksh Singh Sibbia etc. v. The State of Punjab A.I.R. 1980 S.C. 1632. The Supreme Court analyzing the phrase 'reason to believe' as it appears in Section 438(1) Cr.P.C. observed that use of the phrase 'reason to believe' shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief for which reason, it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in. pursuance of which, he may be arrested. The grounds on which, such belief is based, must be capable of being examined by the Court objectively, because it is then alone that the Court can determine whether the applicant has reason to believe that he may be so arrested. The Supreme Court, therefore, held that power under Section 438(1) Cr.P.C. cannot be invoked on the basis of a vague and general allegation, as if to arm oneself in perpetuity against a possible arrest. The Supreme Court also expressed its anxiety that if without such objective satisfaction, the power under Section 438(1) Cr.P.C. is exercised, a floodgate will be opened and that anticipatory bail being a device to secure the liberty of an individual, it would be reduced to a passport for commission of crime and would be used as a shield against any and all kind of accusations likely or unlikely.