GANGADHAR PAIKRAY Vs. BALARAM BALABANTARAY AND ORS.

JUDGEMENT

(1.) THIS is an application by one of the injured against the order of the learned Sessions Judge dated 23 -4 -1986 granting anticipatory bail in exercise of powers under Section 438 of the Code of Criminal Procedure.

(2.) IT was alleged in the F. I. R. that the informant alongwith the Editor of a local newspaper "The Samaj" was coming in a vehicle after attending a function at Sri Ramachandi College. The road was blocked by placing carts and as soon as the vehicle stopped he injured as well as the co -passenger were indiscriminately attacked as a result of which all of them including the driver of the vehicle sustained injuries. The occurrence took place on 18 -3 -1986 and on the basis of the F. I. R. a case was registered under: Sections 147/148/149/341/326/307/336, Indian Penal Code, read with Section 5 (3) of the Indian Explosives Act. The opposite parties filed an application in the Court of the Sessions Judge, Puri, which was registered as Criminal Misc. Case No. 285 of 1986 invoking the jurisdiction under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail. The learned Sessions Judge notwithstanding the gravity of the offence as well as existence of evidence against the opposite parties granted anticipatory bail by order dated 23 -4 -1986. The main reason which impelled the learned Sessions Judge to invoke his jurisdiction under Section 438 of the Code is that the Public' Prosecutor did not object the grant of anticipatory bail. The learned Sessions Judge has also observed that the offence are not very serious and the evidence is meagre. It is this order of the learned Sessions Judge which is being impugned \in this application.

(3.) SECTION 438 of the Code of Criminal Procedure was introduced in Code of Criminal Procedure of 1973 which was not there in the earlier Procedure Code. The object obviously was to enable the Court of Sessions and the High Court to direct the release of a person on bail prior to his arrest. The said power is of an extraordinary nature and has to be exercised in exceptional cases. The Supreme Court in the case of Balchand Jain v. State of Madhya Pradesh, A.I. R. 1977 S.C. 366 laid down the propositions, regarding grant of anticipatory bail and according to the said decision all the limitations imposed under Section 437' are to be read into Section 438 and in addition, the Petitioner must further make out a special case for the exercise of the power to grant anticipatory bail. In later decisions, the Supreme Court further indicated that the discretion under Section 438 should not be exercised with regard to an offence punishable with death or imprisonment for life unless the Court at that very stage is satisfied that such a charge appears to be false or groundless and in the larger interest of the public and the State the discretion under Section 438 should not be exercised .in serious cases like economic offences and offences invoking blatant corruption at the higher rungs of the executive and political power. It was also categorically held in several cases that mere general allegations of mala fides in the petition were inadequate and the Court must be satisfied from the materials before it that the allegations of mala fides are substantial and the accusation appears to be false and groundless, the burden of establishing such mala fides being on the person alleging. Notwithstanding such clear enunciation as some Courts exercised their discretion under Section 438 without the pre -conditions being satisfied, in a recent case of Pokar Ram v. States of Rajasthan and Ors. : A.I.R. 1985 S.C. 969. the Supreme Court reiterated the distinction between bail and anticipatory hair and held: