SAWAI SINGH Vs. STATE

JUDGEMENT

(1.) THIS application for anticipatory bail under sec. 438 (1), Cr. P. C, 1973 has been moved on behalf of Sawai Singh. Similar application moved before the learned Sessions Judge, Pali was dismissed on 2. 11. 75.

(2.) THE facts of the prosecution case, as disclosed in the First Information Report are that at about 6. 30 a. m. on 3. 9. 1975, a report was lodged with the police by Heera Lal to the effect that Khiv Singh son of Ganesh Singh was attacked by the applicant Sawai Singh and one Ram Singh. It is alleged that Ram Singh caused two injuries by axe on the head of Khiv Singh while Sawai Singh dealt lathi blows on Khiv Singh resulting in fracture of 8th to 12th ribs, of Khiv Singh. Khiv Singh was medically examined, and the injuries of his head caused by the accused Ram Singh were found to be simple, while the injuries caused by the lathi strokes by Sawai Singh were found to be grievous.

(3.) THE following are the observations contained in the Law Commission's report recommending the provisions for anticipatory bail: - "the necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. " THEse observations may act only as guidelines for interpreting the provisions of sec. 438, Cr. P. C. THE basic question for consideration is, whether the provisions of sec. 438, Cr. P. C. whereby the procedure for obtaining anticipatory bail has been incorporated, circumvent the provisions contained in sec. 437 and 439, Cr. P. C. regarding the enlargement on bail of an accused person. Having given my most anxious consideration to the question involved, I have no hesitation in holding that the ordinary rule of arrest and enlargement on bail shall continue to function during the investigation or trial of the cases; but when it is brought to the notice of the Court that the investigating agency is being exploited, or that the process is likely to be misused, the High Court or the Court of Session has been given the discretion to issue a direction in appropriate cases for releasing the accused on bail whenever he is apprehended. This would mean that the provisions of sec. 438, Cr. P. C. are to be utilised when either the investigating agency misdirects itself or from the perusal of the case diary it appears that innocent persons are likely to be harassed, or entangled in false and frivolous cases. In the present case, the First Information Report was lodged with the police that Ram Singh and the present applicant Sawai Singh have assaulted Khiv Singh with arrow and lathi. Ram Singh was arrested, and was also enlarged on bail, though the weapon of offence used by him was an arrow. Sawai Singh has been avoiding arrest, and has not made himself available to the police for investigation. Having carefully perused the case diary, there are no reasons to believe that the investigating agency is in any way going out of its way to implicate an innocent person in a false or frivolous criminal case. Under such circumstances, looking to the facts, as disclosed in the police diary, no occasion arises for issue of a direction under Section 438, Cr. P. C. 9. Hence, the application filed by the applicant for a direction under Section 438 (1), Cr. P. C. , 1973 is hereby dismissed. .