TMI Blog1996 (11) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... rvations of Punjab Haryana High Court in Puran Singh v. Ajit Singh, (1) reported as 1985 CrI. L.J. 897, to the following effect: The grant of bail under Section 438(1) by the High Court or the Court of Session is, to my mind, dependent on the merits of a particular case and not the order of the Magistrate choosing to summon an accused through bailable or non bailable warrant. The learned counsel thus on the basis of the above contended before the learned Single Judge that an application for anticipatory bail was maintainable even in case where only summons have been issued for the appearance of the accused before the Court. In view of the divergence of the view in between the learned Single Judge of this Court and that of Punjab Haryana High Court, the learned Single Judge requested the Hon'ble Chief justice to constitute a larger Bench to consider the above point. It was in the above circumstances that this case came up for hearing before this Bench. 2. It is manifest from above that the only short point which arises for adjudication before this Bench is as to whether an application for grant of anticipatory bail under Section 438 of the Code of Criminal Procedure ( Cr.P.C. fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section. 6. A close scrutiny of the relevant provisions of law alluded to above, would reveal that an applicant who prays for release on bail in anticipation of his arrest must show the following:- (a) He must be having a reasonable apprehension th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some days and then apply for bail. 9. We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter. 10. In order to settle the details of this suggestion, the following draft of a new section is placed for consideration:- 497-A. (1) When any person has a reasonable apprehension that he would be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section. That Court may, in its discretion, direct that in the event of his arrest, he shall be released on bail. (2) A Magistrate taking cognizance of an offence against that person shall, while taking steps under section 204(1), either issue summons or a bailable warrant as indicated in the direction of the Court under sub-section (1). (3) If any person in respect of whom such a direction is made is arrested without warrant by an officer in charge of a police station on an accusation of having committed that offence, and is prepared either at the time of arrest o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r from above that the legislators in their wisdom thought it fit and proper not to impose any conditions on the powers of the Courts to grant bail. Thus would it be proper to read into the Section some thing which is not there ? It is a well settled principle of law that the Courts have to interpret the law as it is and not as it ought to be or as they think it should be. The Courts are not there to legislate and to tread into a territory which is forbidden for them. They are not permitted to weave a new texture replacing the original one. 15. The question with regard to the grant of bail or non grant of it, is related to the liberty and freedom of an individual. The framers of the Constitution while drafting the Constitution of India envisaged in the Preamble of the Constitution the following:- We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens: Justice, social, economic and political. Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all. Fraternity assuring the dignity of the individual and the unity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as the presumption of innocence. Though the right to apply for anticipatory bail was conferred for the first time by S. 438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, in so far as the right to apply for bail is concerned. It had before it two cognate provisions of the Code : S. 437 which deals with the power of Courts other than the Court of Session and the High Court to grant bail in non-bailable cases and S. 439 which deals with the special powers of the High Court and the Court of Session regarding bail . 19. Learned Public Prosecutor, Mr. Dutt, has vehemently contended that since summons have been issued against the accused person in the instant case hence the application under Section 438 Cr. P.C. would not be maintainable. We are sorry we are unable to agree with the contention of the learned counsel. 20. We have already observed above that the Courts while dealing with an application under Section 438 Cr. P.C. enjoy very wide powers, unlike the powers of a subordinate Court which is riddled and hedged in by restrictions. Thus the learned Public Prosecutor argues that the present application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stinction whether the arrest is apprehended at the hands of the police, or at the instance of the Magistrate. The issuance of a warrant by the Magistrate against a person, to my mind justifiably gives rise to such an apprehension and well entitles a person to make a prayer for his anticipatory bail. The High Court or the Court of Session may, however, decline to exercise its powers under S. 438(1), Cr. P.C. keeping in view the fact that the Magistrate has summoned the accused through bailable warrant - i.e., a relief almost similar to what can be granted by the Court under S. 438(1), Cr. P.C. yet that does not mean that the Court has no jurisdiction to grant anticipatory bail to such an accused person. The grant of bail under S. 438(1) by the High Court or the Court of Session is, to my mind, dependent on the merits of a particular case and not the order of the Magistrate choosing to summon an accused through bailable or non-bailable warrant. 23. A case in which an accused person applied for bail in anticipation of his arrest at the stage of committal proceedings before the Magistrate came up for hearing before a Division Bench of the Madhya Pradesh High Court. The question which c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eason to believe that he may be arrested on an 'accusation'. There may be an accusation even before a case is registered by police. After the registration of the case, filing of the charge-sheet or filing of the complaint or taking cognizance or issuance of warrant, the accusation will not cease to be an accusation. At the later stage. there may be stronger accusation or more evidence. Nevertheless, the accusation survives or continues Section 438 speaks, of apprehension and belief that he may be 'arrested'. There is no limitation in the language employed by the legislature indicating that the arrest contemplated is an arrest by the police of their own accord or that arrest by the police on a warrant issued by the Court will not attract Section 438. The language used is clear and unambiguous, namely. apprehension of arrest on an accusation Considering the legislative purpose underlying the provision and the clarity of the language used in the section we do not find any Justification to import anything extraneous into the interpretation so as to restrict the scope or vitality of the provision. It is not as if circumstances justifying an application under Section 438 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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