TMI Blog2009 (7) TMI 1383X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellants herein are the mother-in-law, father-in-law, husband and the younger brother of the father-in-law of the deceased-Laxmi. They are accused of having committed offences punishable under Sections 498A, 304B read with Section 34 of the Indian Penal Code, 1860 (for short `the IPC') and Sections 3 and 4 of the Dowry Prohibition Act, 1961. 3. Material facts, leading to the filing of these appeals, are as follows: The deceased-Laxmi got married to appellant No. 3 on 26th January, 2006. On 13th October, 2006, they were blessed with a baby boy. On 6th December, 2007 at about 4.30 p.m., appellant No. 2 (father-in-law) is stated to have heard the cries of Laxmi and when he rushed to the second floor of the house, he saw her burning. He tried to douse the fire. Laxmi told him that her son was lying in the bathroom. He rushed to the bathroom and found that the child also had burns. Laxmi and her child were removed to the hospital. At about 6.40 p.m., her statement was recorded by the Executive Magistrate wherein she stated that she and her son caught fire when she was pouring kerosene oil in the lamp which accidentally fell down; the oil got spilled over and both of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had everything been well in the house, there was no occasion for the parents of the deceased to implicate her in-laws. Inter alia, observing that the evidence, which directly involved the appellants, had been ignored, rendering the order passed by the Sessions Judge perverse, as noted above, the High Court has set aside the said order. The High Court has also noted that the offences complained of, being of serious nature, there was no ground to grant anticipatory bail to the appellants. Being aggrieved, the appellants are before us in these appeals. 7. Mr. Uday U. Lalit, learned senior counsel appearing for the appellants contended that the High Court has failed to appreciate the factual background of the case, particularly the fact that in both the dying declarations recorded by the Executive Magistrate, the deceased had not levelled any allegation against the appellants for demanding any dowry or for torturing her for any other purpose. It was strenuously urged that the second dying declaration recorded on 7th December, 2007 at about 1.40 p.m. was in the presence and perhaps at the instance of the father of the deceased, who admittedly had arrived in the hospital on 6th D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain misgivings in regard to the concept and scope of the said provision still seem to prevail. 10. Section 438 of the Code confers on the High Court and the Court of Session, the power to grant `anticipatory bail' if the applicant has `reason to believe' that he may be arrested on accusation of having committed a non-bailable offence. The expression `anticipatory bail' has not been defined in the Code. But as observed in Balchand Jain v. State of M.P. [1977]2SCR52, `anticipatory bail' means `bail in anticipation of arrest'. The expression `anticipatory bail' is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. When a competent court grants `anticipatory bail', it makes an order that in the event of arrest, a person shall be released on bail. There is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative. The Court went on to observe that the power of granting `anticipatory bail' is somewhat extraordinary in character and it is only in `exceptional cases' where it appears that a person mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. Keeping in view the reports of the Law Commission, Section 438 was inserted in the Code. Sub-section (1) of Section 438 enacts that 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 to the Court of Session for a direction that in the event of his arrest he shall be released on bail, and the Court may, if it thinks fit, direct that in the event of such arrest he shall be released on bail. Sub-section (2) empowers the High Court or the Court of Session to impose conditions enumerated therein. Sub-section (3) states that if such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, he shall be released on bail. 15. In Gurbaksh Singh Sibbia (supra), the Constitution Bench was called upon to consider correctness or otherwise of principles laid down by the Full Bench of High Court of Punjab Haryana in Gurbaksh Singh Sibbia v. State of Punjab AIR 1978 P H 1 : 1978 Crl LJ 20 (FB). The Full Bench of the High Court summarized the law relating to anticipatory bail as reflected in Section 438 of the Code and laid down eig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst imposition of unnecessary restrictions on the scope of the Section, because, in its opinion, over generous infusion of constraints and conditions, which were not to be found in Section 438 of the Code, could make the provision constitutionally vulnerable, since the right of personal freedom, as enshrined in Article 21 of the Constitution, cannot be made to depend on compliance with unreasonable restrictions, the Constitution Bench laid down the following guidelines, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail: i) Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise. ii) Before power under Sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed. vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested. vii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested. viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad-interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage. ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the Court may, if there a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Additional Sessions Judge, Amravati granting anticipatory bail to the appellants. The learned Sessions Judge passed the order after due consideration of the facts and circumstances of the case, in particular, the two dying declarations, one recorded in the presence of the parents of the deceased and the statements of the members of the Women Cell who had dealt with the case when on 15th July, 2006, the deceased had left the house with intention to commit suicide and therefore, it cannot be said that the judicial discretion exercised in granting anticipatory bail was perverse or erroneous, warranting interference by the High Court. The order passed by the Sessions Judge was supported by reasons to the extent required for exercise of judicial discretion in the matter of grant of bail. It may be true that some of the circumstances, noticed by the High Court in the impugned order, viz., no reference to lantern in the spot panchnama or the necessity of cleaning the lantern at 4 p.m. and/or availability of an inverter in the house etc., could have persuaded the Sessions Judge to take a different view but it cannot be said that the factors which weighed with the Sessions Judge in gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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