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2005 (2) TMI 836
Issues: Challenge to pre-deposit order by CESTAT.
Analysis:
The High Court of Bombay heard a petition challenging the order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) dated 24.2.2004, which directed a pre-deposit of Rs. 1.5 lakhs. The total demand of duty was Rs. 3,03,093, and the CESTAT justified the pre-deposit amount based on specific reasons, particularly noting that woolen rags were allowed to be cleared without mutilation. The court found that the pre-deposit order was not made arbitrarily but with due consideration. The petitioner requested eight weeks to deposit the said amount with the Customs Authorities to enable the CESTAT to hear the appeals on merits. The court declined to interfere with the CESTAT's order but directed the petitioner to deposit Rs. 1.5 lakhs within eight weeks. If the deposit is made within the stipulated time, all four appeals before the CESTAT will be restored and heard promptly in accordance with the law.
This judgment primarily deals with the challenge to a pre-deposit order issued by the CESTAT. The court carefully considered the circumstances and reasoning behind the pre-deposit amount, emphasizing the importance of compliance with the order to proceed with the appeals. The court's decision highlights the significance of following procedural requirements and timely deposit of the pre-determined amount to ensure the appeals are heard on their merits without delay. The judgment underscores the adherence to legal procedures and the need for parties to fulfill financial obligations as directed by the tribunal to facilitate a fair and expeditious resolution of the appeals.
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2005 (2) TMI 835
Valuation the property - annual letting value worked out - ITAT disposed of the appeal on the basis of its earlier order dated 4th May, 1998 and directed the Assessing Officer to adopt the value of the property on the basis of its municipal valuation - HELD THAT:- Insofar as the present batch of cases is concerned, the view taken by the ITAT in its orders dated 4th May, 1998 and 18th May, 1998 has remained unchallenged in respect of several assessment years. These orders were not only in respect of the present assessee but in respect of the other two owners of the concerned property. For some reason, an appeal was filed in respect of the present assessee for the assessment year 1985-86 but no such appeal was filed in respect of the other two assessees for that year. For the earlier assessment year, that is, 1984-85 and for subsequent years, that is, 1986-87 to 1989-90, no appeal was filed by the Revenue in respect of any of the assessees. Similarly, there appears to be no information with regard to any appeal having been filed by the Revenue for a couple of other assessment years in respect of all the three assessees.
In cases where an appeal has been filed by the Revenue, it is on an absolutely ad hoc basis and without any intelligible pattern whatsoever. The fact, however, remains that the two basic orders passed by the ITAT on 4th May, 1998 and 18th May, 1998 have been accepted by the Revenue. Subsequent orders which merely follow these two orders have been challenged, without any just cause having been shown for the departure by the Revenue. Since the Revenue has accepted the two basic orders, we are not inclined to permit it to randomly challenge a subsequent order in respect of an assessee or in respect of a random assessment year. There cannot be pick and choose in this regard, without sufficient reason.
Thus, we decline to entertain this appeal as well as all the other connected appeals. Dismissed
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2005 (2) TMI 834
Issues:
1. Validity of fixation of cut-off date for granting pensionary benefits to government servants absorbed in State Road Transport Corporations.
2. Determination of appropriate cut-off date for eligibility for pension.
3. Payment of arrears of pension to retired employees.
4. Review petition filed by the Government of Tamil Nadu regarding the eligibility for pension for employees retiring on or after 1.1.1988.
Issue 1: Validity of fixation of cut-off date for granting pensionary benefits to government servants absorbed in State Road Transport Corporations
The High Court of Madras declared the fixation of the cut-off date as 1.5.1975/15.9.1975 illegal and arbitrary. On appeal to the Supreme Court, it was confirmed that the absorption process did not take place in 1975 itself. The Supreme Court directed the cut-off date to be fixed as 1.4.1982 instead of the previous dates mentioned in the government orders. The Court emphasized that the entitlement to pensionary benefits arises if the employees had completed ten years of qualifying government service by the specified date.
Issue 2: Determination of appropriate cut-off date for eligibility for pension
The Supreme Court, in modifying the cut-off date to 1.4.1982, directed the appellants to extend pensionary benefits to eligible employees based on this date. The Court ordered the payment of arrears of pension to retired employees from 1.1.1988, considering the delay in seeking the remedy after the options were exercised. The government was instructed to adjust the monetary benefits accordingly for employees eligible for pension.
Issue 3: Payment of arrears of pension to retired employees
The judgment specified that retired employees should receive pension arrears from 1.1.1988, with the government directed to fix the pension and make arrear payments within four months from the date of the judgment. The Court emphasized the importance of timely implementation of pension benefits for eligible retirees.
Issue 4: Review petition filed by the Government of Tamil Nadu regarding the eligibility for pension for employees retiring on or after 1.1.1988
The review petition raised contentions regarding the eligibility for pension for employees retiring on or after 1.1.1988. The Supreme Court dismissed the review petition, stating that there was no need to rehear arguments on merits. The Court clarified that the issue of pension eligibility for employees retiring after 1.1.1988 could not be subject to review or clarification. The time for implementation of the judgment was extended by four months, and certain interlocutory applications were dismissed as unnecessary.
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2005 (2) TMI 833
Issues:
1. Premature filing of mortgage suit
2. Validity of remand order by High Court
Analysis:
1. Premature filing of mortgage suit:
The case involved a civil suit for redemption of a mortgage with a complex history. The plaintiff contended that the 60-year period fixed for the mortgage was a clog on the equity of redemption, rendering it null and void. The trial court initially dismissed all three suits for redemption, stating that the heirs of the original mortgagor failed to claim redemption within 12 years of her death, leading to the mortgagee becoming the possessor of the property. The First Additional Civil Judge also dismissed the appeal on the grounds of prematurity and lack of clog on redemption. However, the High Court allowed the second appeal, emphasizing that the plaintiff's statement not to take possession before the mortgage's expiry allowed the suit to proceed on merit. Despite the appellants' contention that the remand order was erroneous, the High Court's decision was upheld, leading to further appeals.
2. Validity of remand order by High Court:
The appellants challenged the High Court's remand order, arguing that a premature mortgage suit must be dismissed, and the plaintiff can refile after the mortgage period ends. Citing previous judgments, the counsel contended that an order of remand is interlocutory and can be challenged even after the final judgment. The Supreme Court agreed with the appellants, stating that the High Court's decision to continue the suit based on the plaintiff's agreement not to seek possession before the mortgage's expiry was legally flawed. Consequently, the remand order and all subsequent proceedings were declared invalid, reaffirming the trial court's dismissal of the suit as premature. The appellants were awarded costs for the appeal.
In conclusion, the Supreme Court allowed the appeal, setting aside the High Court's remand order and declaring all subsequent proceedings as invalid. The original judgment dismissing the suit as premature was upheld, emphasizing the importance of adhering to legal procedures in mortgage redemption cases.
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2005 (2) TMI 832
The appellant sought waiver of pre-deposit of &8377; 1,13,620 out of &8377; 2,09,943. The Tribunal granted waiver for the balance amount and penalties, staying recovery until appeal disposal. Activities of dance, drama, or music were deemed outside the scope of 'Mandap Keeper' services.
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2005 (2) TMI 831
... ...
... ... ..... and the connected papers. We do not find any merit in the same. The Review Petitions are dismissed.
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2005 (2) TMI 830
Issues Involved: Whether the assessed is entitled to the benefit of Section 80-IA for receiving processing charges and whether the assessing authority's denial of the benefit is justified.
Summary:
Issue 1: Entitlement to Section 80-IA Benefit
The Tribunal found that the assessed received processing charges for products manufactured on a job work basis for outsiders. The Revenue contended that such charges were outside the purview of Section 80-IA as the manufacturing activity was not for the assessed itself. However, the Tribunal held that the assessed's activity constituted manufacturing activity regardless of whether it was for its own business or for others on a job work basis. Section 80-IA does not differentiate between manufacturing for oneself or others. The Tribunal noted that in a previous assessment year, the assessing authority had allowed the deduction under Section 80-IA. Citing precedents, the Tribunal concluded that the assessed should not be denied the benefit of deduction under Section 80-IA for the incomes represented by processing charges.
Issue 2: Lack of Evidence Before the AO
The High Court also reviewed the order passed by the Assessing Officer (AO) and found no discussion or evidence to support the claim that the assessed unit was not engaged in manufacturing activity. The High Court noted that this was a finding of fact, and under Section 260A of the Act, they were not required to interfere with such factual determinations.
In conclusion, the High Court dismissed the appeal, upholding the Tribunal's decision that the assessed was entitled to the benefit of deduction under Section 80-IA for the processing charges received, and that there was no basis to interfere with the finding that the assessed unit was engaged in manufacturing activity.
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2005 (2) TMI 829
The High Court of Gujarat admitted the case for hearing and identified two substantial questions of law related to the Wealth Tax Act, 1957. The questions revolved around the encumbrance created in an agreement dated 27/3/1982 and its impact on the beneficiaries of a family trust. The court directed the appellant to include certain exhibits in the final Paper Book for the hearing.
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2005 (2) TMI 828
... ...
... ... ..... on to interfere with the impugned order. The appeal is dismissed.
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2005 (2) TMI 827
The Supreme Court dismissed the appeals based on concurrent findings that the respondent's claim was barred by limitation and that the products in question were exempted from duty during the period not covered by the limitation.
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2005 (2) TMI 826
Whether in the facts and circumstance of this case, search of the bags would amount to search of the person of the respondent?
Whether search of the bag carried by the accused on his shoulder attracts Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and whether failure to give to the accused the necessary option contemplated by Section 50 before searching his bag would be in violation of the provisions of Section 50?
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2005 (2) TMI 825
Issues Involved:
1. Violation of constitutional provisions.
2. Lack of infrastructure and teaching facilities.
3. Non-compliance with regulatory bodies.
4. Impact on the quality and standard of education.
5. Legislative competence of the State.
6. Extra-territorial operation of the Act.
7. Compliance with University Grants Commission (UGC) regulations.
8. Validity of the Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002.
Detailed Analysis:
1. Violation of Constitutional Provisions:
The petitioners argued that the Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 (the Act) was ultra vires the Constitution of India, particularly violating the University Grants Commission Act, 1956, Indian Medical Council Act, 1956, All India Council for Technical Education Act, 1987, and Bar Council of India Act, 1956. The Supreme Court examined the interplay of various constitutional entries concerning education and universities and concluded that the impugned Act violated the constitutional scheme by enabling a proposal on paper to be notified as a university without actual establishment and infrastructure.
2. Lack of Infrastructure and Teaching Facilities:
The petitioners highlighted that the State Government had been establishing universities indiscriminately without ensuring the availability of infrastructure, teaching facilities, or financial resources. Many universities were functioning from small rooms in commercial complexes or residential buildings without proper campuses, classrooms, libraries, or laboratories. The Supreme Court found that the Act allowed the notification of universities based on mere project reports without actual infrastructure, which was contrary to the constitutional scheme.
3. Non-Compliance with Regulatory Bodies:
The private universities were running professional courses without prior permission from regulatory bodies such as AICTE, MCI, and DCI. The requirement of obtaining prior permission from these bodies was not followed, and the universities were not under any authority's control. The Supreme Court noted that the Act had completely done away with UGC's control over these private universities, leading to non-compliance with regulatory standards.
4. Impact on the Quality and Standard of Education:
The petitioners argued that the private universities were offering courses and degrees without subscribing to UGC standards, leading to a lack of homogeneity in course content and affecting the overall standard of education. The Supreme Court emphasized that proper standards of teaching could not be achieved without adequate infrastructural facilities and that the impugned Act stultified the functioning of UGC in ensuring coordination and determination of standards in higher education.
5. Legislative Competence of the State:
The State of Chhattisgarh argued that it had the legislative competence to make an enactment regarding the incorporation of a university under Entry 32 List II of the Seventh Schedule to the Constitution. However, the Supreme Court held that while the State Legislature could legislate on the incorporation of universities, the impugned Act's provisions allowing a proposal on paper to be notified as a university without actual establishment and infrastructure were ultra vires and a fraud on the Constitution.
6. Extra-Territorial Operation of the Act:
The Act allowed universities to have off-campus centers and study centers outside the State of Chhattisgarh and even outside the country. The Supreme Court held that this provision gave the State enactment an extra-territorial operation, which was beyond the legislative competence of the Chhattisgarh Legislature as per Article 245(1) of the Constitution.
7. Compliance with UGC Regulations:
The Supreme Court noted that the UGC had made regulations for establishing and maintaining standards in private universities, which required each private university to be established by a separate State Act and conform to UGC Act provisions. The impugned Act's provisions allowing universities to be notified by executive action without a legislative enactment were in conflict with UGC regulations and, therefore, invalid.
8. Validity of the Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002:
The Supreme Court declared Sections 5 and 6 of the Act ultra vires and struck them down. Consequently, all notifications issued by the State Government notifying the universities were quashed, and such universities ceased to exist. The Court directed the State Government to take appropriate measures to affiliate institutions established by such private universities to existing State Universities in Chhattisgarh, provided they fulfilled the requisite norms and standards.
Conclusion:
The Supreme Court allowed the writ petitions, declared Sections 5 and 6 of the Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002, ultra vires, and quashed all notifications issued under these sections. The Court directed the State Government to take steps to affiliate institutions established by the private universities to existing State Universities, ensuring compliance with prescribed norms and standards.
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2005 (2) TMI 824
Whether an institution should be established in an area to serve the educational needs of that locality?
Whether Section 20(3)(a)(i) of the Andhra Pradesh Education Act, 1982 is not in any way repugnant to Section 10 of AICTE Act and it is constitutionally valid?
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2005 (2) TMI 823
The Gujarat High Court upheld the demand of duty while setting aside confiscation ordered by the Commissioner under Section 3A of the Central Excise Act, 1944. The appeal was dismissed, and the Supreme Court later dismissed the SLP filed against the High Court's order.
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2005 (2) TMI 822
Issues Involved:
The appeal challenges the judgment of the Karnataka High Court regarding the grant of occupancy rights by the Tribunal based on the direction of the Single Judge.
Judgment Details:
The appellants filed a writ appeal before the Division Bench of the Karnataka High Court, contesting the order of the Single Judge remanding the matter to the Tribunal with a direction to grant occupancy rights to the respondents. The Division Bench admitted the appeal without passing any stay order, leading the Tribunal to grant occupancy rights to the respondents as per the Single Judge's direction.
The High Court, in its impugned judgment, held that the appellants could challenge the Tribunal's decision before the Single Judge, despite the occupancy rights being granted in compliance with the Single Judge's direction. The writ appeal was dismissed based on this reasoning.
The main issue for adjudication was whether the Single Judge's direction to grant occupancy rights could stand when the matter was remitted to the Tribunal for fresh adjudication. The High Court admitted the writ appeal to examine the legality of this direction. However, the Tribunal did not keep the proceedings pending despite being informed of the writ appeal admission. The appellants also failed to seek a stay of the direction, contributing to the confusion.
The Supreme Court found that the High Court erred in deeming the writ appeal infructuous due to the Tribunal's subsequent decision. The correctness of the Single Judge's order was under challenge in the writ appeal, making any Tribunal decision subject to the appeal outcome. Therefore, the Division Bench should have considered the matter on its merits without prematurely concluding the writ appeal's futility.
In light of these circumstances, the Supreme Court remitted the matter back to the High Court for fresh consideration. The writ appeal was to be restored to the file and dealt with according to the law, with a request for expedited proceedings. The Supreme Court clarified that no opinion on the case's merits was expressed, and the appeal was disposed of without costs.
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2005 (2) TMI 821
Title: Supreme Court Judgment 2005 (2) TMI 821 - SC Order
Judges: Mrs. Ruma Pal, Arijit Pasayat, and C.K. Thakker
Summary: The appeal involved a question of fact, which was considered by the Tribunal. The Supreme Court decided not to interfere and dismissed the appeal.
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2005 (2) TMI 820
Issues:
Allegation of incorrect valuation of goods leading to short payment of duty; Non-adoption of Rule 8 of Central Excise Valuation Rules, 2000; Imposition of penalty for intent to evade duty; Appeal against confirmation of duty, interest, and penalties.
Analysis:
The case involved M/s. Jaisingh Wires P. Ltd., a manufacturer of various electrical products, accused of supplying goods to related units without adopting Rule 8 of the Central Excise Valuation Rules, resulting in a differential duty payment of Rs. 2,01,74,987. A Show Cause Notice was issued, alleging intent to evade duty and withholding duty payment for over a year and a half while operating under the self-removal procedure. The Commissioner confirmed the duty demand, interest under Section 11AB of the Central Excise Act, and imposed penalties under Section 11AC of the Act, along with a separate penalty on the Director of the Company under Rule 209A of the Central Excise Rules, 1944.
The Appellants contended that they voluntarily paid the differential duty, informed the authorities promptly, and issued supplementary invoices, claiming it was an oversight without intent to evade duty. Upon hearing both sides, the Tribunal noted that the appellants rectified the payment error independently before the department's intervention, as evidenced by the delayed Show Cause Notice issued ten months post the duty payment. Consequently, while confirming the duty and interest demands, the Tribunal set aside the imposed penalties, ruling in favor of the appellants and disposing of the appeal accordingly.
The judgment, pronounced on 21.2.2005 by the Tribunal, emphasized the significance of rectifying errors promptly, acknowledged the appellants' proactive approach in correcting the duty payment mistake, and highlighted the absence of malicious intent, leading to the decision to waive the penalties despite confirming the duty and interest obligations.
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2005 (2) TMI 819
Penalty - breach of non-furnishing of the original Bills of Entry - contravention of Sections 8(3) and 8(4) of Foreign Exchange Regulation Act, 1973 - HELD THAT:- Petitioners submit that original Bills of Entry had also been tendered but they were not having the receipt for the same as the same had been misplaced and was not traceable. However, petitioners had duly furnished the copies of Bills of Lading, Invoices. The photocopy of Exchange Control copy of the Bill of Entry duly carried endorsement by the Customs Authorities of the clearance of the goods. Mr. Sharma also submitted that the Bank itself had failed to comply with the procedure.
Thus, there was hardly any doubt left regarding genuineness of the transactions which fact is not even disputed by the respondents. In these circumstances, the omission of the petitioners is merely a procedural irregularity.
Thus, the impugned order is not sustainable and is liable to be set aside and is quashed. Counsel for the petitioner submits that as a genuine recompense for the lapse committed by the petitioners in not furnishing original receipt for Bill of Entry, they would deposit a sum of ₹ 5000/- in the Prime Minister's National Relief Fund for Tsunami Victims. Let this be done in two weeks.
Petition stands allowed in the above terms.
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2005 (2) TMI 818
Issues:
- Interpretation of section 80J of the Income-tax Act, 1961 for deduction eligibility based on the number of workers engaged in the manufacturing process.
Analysis:
The case involved a dispute regarding the eligibility of an assessee firm, a rice miller, for deduction under section 80J of the Income-tax Act, 1961. The assessing authority initially disallowed the deduction, citing the failure of the assessee to prove engagement of more than 10 persons in the manufacturing process. However, both the Assistant Appellate Commissioner and the Tribunal allowed the claim for deduction under section 80J.
The Tribunal, in its finding, emphasized that the assessee firm qualified as an industrial undertaking and was entitled to the deduction under section 80J. The Tribunal rejected the contention of the Departmental Representative that a previous decision was sub judice due to lack of details and supporting documentation. The Tribunal upheld the decision of the AAC based on the presence of more than 10 workers in the assessee's business, classifying it as an industrial undertaking.
In support of its decision, the Tribunal referred to a previous judgment in CIT v. Sultan & Sons Rice Mill, emphasizing that various processes from raw material purchase to finished goods sale constituted the manufacturing process, and workers involved in these processes were considered engaged in manufacturing. Based on this precedent, the Tribunal found no illegality in allowing the deduction under section 80J.
Ultimately, the High Court answered the question in the affirmative, ruling against the department and in favor of the assessee. The judgment highlighted the importance of meeting the criteria for an industrial undertaking and the interpretation of the manufacturing process under section 80J for claiming deductions under the Income-tax Act, 1961.
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2005 (2) TMI 817
Issues Involved:
1. Refusal to extend protection under Section 438 of the Code of Criminal Procedure, 1973.
2. Legality of interim orders restraining arrest while an application under Section 438 is pending.
3. The distinction between Sections 438 and 439 of the Code.
4. Conditions and limitations for granting anticipatory bail.
Detailed Analysis:
Issue 1: Refusal to Extend Protection under Section 438 of the Code of Criminal Procedure, 1973
The appellant challenged the Calcutta High Court's refusal to grant anticipatory bail under Section 438 of the Code. The complaint, lodged by Dayaram Das, alleged various offences under Sections 406, 467, 468, 471, and 420 of the IPC. The CJM directed an investigation based on the complaint. The appellant argued that the complaint was part of a conspiracy and that multiple cases were pending between the parties. Despite two co-accused being granted protection, the appellant's application was rejected, prompting the appeal. The appellant contended that the rejection was without proper appreciation of the factual background and sought permission to surrender and apply for bail without arrest until the application was decided.
Issue 2: Legality of Interim Orders Restraining Arrest
The Court examined whether it could pass an interim order not to arrest the appellant while an application under Section 438 was pending. It was concluded that such an interim order would interfere with the investigation process, which is beyond the scope of Section 438. The Court emphasized that arrest is part of the investigation process, intended to secure various objectives like questioning the accused, discovering material facts, and maintaining law and order. Restraining arrest would impede these objectives.
Issue 3: Distinction between Sections 438 and 439 of the Code
The Court clarified the differences between Sections 438 and 439. Section 438 deals with anticipatory bail, which is granted in anticipation of arrest, whereas Section 439 pertains to bail for persons already in custody. The Court highlighted that anticipatory bail is an extraordinary remedy, intended to prevent false implication and misuse of liberty, and is granted only in exceptional cases. The Court also noted that anticipatory bail orders should be of limited duration, requiring the accused to seek regular bail from the trial court once the investigation progresses.
Issue 4: Conditions and Limitations for Granting Anticipatory Bail
The Court reiterated that anticipatory bail is not a shield against all accusations and should not be granted based on vague apprehensions. The applicant must show reasonable grounds for believing that they may be arrested for a non-bailable offence. The Court emphasized that anticipatory bail should not be a blanket order covering any and all unlawful activities. The legal provisions require the applicant to demonstrate tangible grounds for their apprehension of arrest. The Court also noted that anticipatory bail should be granted for a limited duration, allowing the accused to apply for regular bail once the investigation provides more evidence.
Conclusion:
The Supreme Court upheld the High Court's rejection of anticipatory bail under Section 438, emphasizing that the appellant must surrender and apply for bail under Section 439 if arrested. The Court clarified that interim orders restraining arrest are not permissible under Section 438, as they would interfere with the investigation process. The Court also delineated the distinct purposes and conditions of Sections 438 and 439, affirming that anticipatory bail is an extraordinary remedy granted only under exceptional circumstances. The appeal was disposed of with directions for expedited consideration of the appellant's bail application upon surrender.
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