MEHNGA SINGH Vs. UNION TERRITORY OF CHANDIGARH

JUDGEMENT

(1.) HEARD . It has been urged by Mr. P.S. Mann, learned counsel for the petitioner, that the respondent has not committed by offence and it is not desirable that he should be detained in custody when he is prepared to associate himself with the investigation. Strong reliance is placed by the learned counsel on a decision in Gurbaksh Singh Sibia etc. v. The State of Punjab, AIR 1980 S.C. 1632 to urge that sence an order of anticipatory bail does not in any way take away from the police the right to investigate the charge made against persons released on bail, direction in terms of Section 438 of The Code of Criminal Procedure, 1973 (for short, the Code) should not normally be denied to an accused person. It is further submitted that a direction can be given to safeguard the interest of the prosecution that in case any recovery has to be effected under Section 27 of the Indian Evidence Act, the accused would be deemed to have surrendered himself to the custody of the police and led to the recovery. Mr. H.L. Sibal, learned counsel for the Union Territory, Chandigarh, has serious objections to the grant of a direction in terms of Section 438 of the Code to the petitioner. It is urged by him that though the grant of anticipatory bail is discretionary, the Court may exercise the discretion with great caution and where the investigation reveals the complicity of the accused in the commission of a serious offence like the present, orders for bail before arrest should not be made.

(2.) SECTION 438(1) is a new provision introduced in the Code to provide for orders to the effect that in the event of arrest of the applicant, he should be admitted to bail. The provision was introduced to save innocent persons from humiliation and harassment by preventing their detention in custody. The proviso was not meant to aid a person against whom there are accusations of a serious nature and there is some material to support these accusations. If the argument of Mr. Mann is taken to the logical conclusion, then it would imply that every accused, who can successfully evade his arrest should be granted anticipatory bail once he files an application under Section 438 or the Code. This is not the intention of the Legislature. The powers under the Code have to be sparingly used and should be invoked for furthering the ends of justice and saving 'innocent persons' from being harassed or humiliated in appropriate cases. While considering the ambit and scope of Section 438(1) of the Code, their Lordships of the Supreme Court in Gurbaksh Singh Sibia etc.'s case, (supra), opined that he grant of anticipatory bail was a matter of judicial discretion and no hard and fast rule could be laid down in such discretionary matter like the grant or refusal of bail whether anticipatory or after arrest. Their Lordships declined to categorise circumstances under which bail before arrest may be granted or refused. They, however, provided certain guidelines to assist the Courts to exercise their discretion. The following observations of their Lordships may, therefore, be noticed with advantage in this connection :

(3.) A perusal of the police diaries show that the investigation so far conducted has revealed the complicity of the petitioner in the case right from the beginning. Whether or not the accusation is correct is not to be seen at this stage as indeed such a consideration would be pre -mature and I would not like to express any opinion on that aspect of the case. Suffice it to say that the accusations against the petitioners are of a serious nature. Mr. Sibal, appearing for the Union Territory, has contended that the arrest of the petitioner is required for making certain recoveries and for ascertainment of material facts regarding the involvement of the assailants who allegedly assaulted the complainant with lethal weapons. By no stretch of imagination can it be said that Mr. H.L. Sibal's opposition to the grant of anticipatory bail to the petitioner is either extraneous or irrelevant. Since an order of anticipatory bail is somewhat of an extraordinary character while exercising discretion, the Court must be satisfied that a fit case had been made out by the accused for the exercise of discretion. Applying the guidelines given by the Supreme Court in Gurbaksh Singh Sibia's case (supra), I find that the petitioner has not made out any case for being admitted to anticipatory bail. Reasons given by the learned Incharge Sessions Judge, Gurdaspur, for rejecting the prayer of bail in his order dated July 11, 1983, are sound and cogent and call for no interference. The petition is accordingly rejected.