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2024 (3) TMI 359 - HC - Companies LawSeeking grant of Anticipatory bail - maintainability of application under Section 438 of the Cr.P.C. - reasons to believe - non-bailable offences contained in Sections 437, 438 and 439 of the Cr.P.C. - HELD THAT:- Section 437 and Section 439 of the Cr.P.C. relate to grant of Bail to any person who has been ‘arrested’ or is in ‘custody’. Section 438 of the Cr.P.C., on the other hand, gives a power to the Court to grant Anticipatory Bail to a person who is yet to be ‘arrested’ or taken into ‘custody’. In BHARAT CHAUDHARY AND ORS. VERSUS STATE OF BIHAR AND ORS. [2003 (10) TMI 692 - SUPREME COURT] the Supreme Court has held that the power under Section 438 of the Cr.P.C. is available to the High Court and the Court of Sessions, even when cognizance is taken or a chargesheet has been filed. In RAVINDRA SAXENA VERSUS STATE OF RAJASTHAN [2009 (12) TMI 1063 - SUPREME COURT], the Supreme Court reiterated that Anticipatory Bail can be granted to an accused at any time, so long as the accused has not been arrested. The High Court or the Court of Sessions cannot refuse to exercise its powers under Section 438 of the Cr.P.C. and leave the matter to the Magistrate only on the ground that the challan has now been presented. Coming to the principles that would be applicable while considering the application of the Applicant(s) for grant of Anticipatory Bail, there is no gainsay that the Applicant(s) would have to show that they have ‘reason to believe’ that they may be arrested - As held by the Supreme Court in GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [1980 (4) TMI 295 - SUPREME COURT], the belief that the Applicant(s) may be so arrested must be founded on reasonable grounds and not on mere ‘fear’ or a ‘vague apprehension’. In the present case, the applicant(s) have met the above test. The learned counsel(s) for the Applicant(s) have placed reliance on various judgments of this Court wherein the accused, who had been similarly summoned by the same Magistrate, were taken into custody and had to suffer the ignominy of being in jail for a long period of time before they were granted Bail by this Court. As far as merit is concerned, in SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR. [2022 (8) TMI 152 - SUPREME COURT], the Supreme Court had placed cases where additional conditions of compliance of provisions of Bail are to be met, including Section 212 (6) of the Act, in ‘Category C’. It was held that where the accused has not been arrested consciously by the prosecution, there is no need for further arrest of the accused at the instance of the Court. In the entire process of investigation leading to the filing of the complaint, the Applicant(s) were never arrested by the respondent and it is not disputed that the Applicant(s) have cooperated in the investigation. Applying the test as laid down by the Supreme Court in Satender Kumar Antil, therefore, the Applicant(s) are entitled to grant of Anticipatory Bail. It is, therefore, ordered that in case of arrest, the Applicant(s) be released on bail subject to fulfilment of conditions imposed - bail application allowed.
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