NEELI MAZUMDAR Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is an application filed on behalf of three persons apprehending arrest in connection with a case registered against them for the offences under sections 147,333,342,418 and 420, I.P.C. We find that on 19-2-1990 a learned single Judge before whom the case came up for consideration passed an interim order directing that they shall not be arrested in connection with the case; namely, case No. 102 of 1990 or Dispur Police Station. Learned Public Prosecutor, Mr. A.C. Buragohain, pointed out that this order is not in terms of section 438 of the Criminal Procedure Code, 1973. We are inclined to agree with this submission.

(2.) The heading of section 438, Cr. P.C. reads Direction for grant of bail to person apprehending arrest. According to sub-section (1), when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this sections and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. The High Court or the Court of Session may in appropriate cases issue a direction as contemplated under section 438, Cr.P.C. The direction cannot be for preventing arrest or restraining arrest. An order of preventing or restraining arrest is outside the purview of section 438, Cr.P.C. The court has no jurisdiction to pass such an order, either final9r interim, under section 438 of the Code. Such an order is contrary to the very purport of section 438. Any order passed under the section can take effect only on arrest, that is, immediately after an arrest. It cannot take effect before arrest or in restraint of arrest. The interim order passed is contrary to law and, therefore, we vacate it.

(3.) However, we are satisfied in the facts and circumstances mentioned in the petition that we should issue an order in terms of section 438 of the Code. We, therefore, dispose of the application directing that in case Shri Pradip Maz.umdar and Shri Prabir Mazumdar, both sons of Shri Bijoy Krishna Mazumdar and Shri Sankar Dey, son of Bharat Dey, or anyone of them, is arrested in connection with Case No. 102 of 1990 of Dispur Police Station, they or he, as the c.ase may be, shall be released on bail on execution of a bond for Rs. 2,000/- (Rupees two thousand only).