S. K. Nizamuddin v. State of Bihar — 1974 DIGILAW 191 (PAT)

JUDGMENT : S.K. JHA, J. 1. The question raised in the application is a matter of first impression relating to the true construction of the provisions of Section 438(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). The petitioner is the first informant having lodged a first information report at Kesaria Police Station making allegations and accusations of various offences under Sections 147, 148, 149, 302 and 379 of the Indian Penal Code against Sheikh Mukhtar, opposite party no. 2. The aforesaid accused-opposite party no. 2 filed a petition for grant of an anticipatory bail under Section 438 of the Code and on the 10.4.1974 the learned Sessions Judge, Motihari passed an ORDER :directing that in the event of the aforesaid accused being arrested in the case, he shall be released on bail of Rs. 3000/- with two sureties of the like amount each. The aforesaid ORDER :was also made conditional with directions attached thereto that the accused-opposite party no. 2 would make himself available for interrogation by the police officer, as and when required, that he would not directly or indirectly, make any inducement or threat to any person so as to dissuade him from disclosing facts relevant to the case to any police officer and that he would not leave the district of East Champaran without the previous permission of the Court. Against the aforesaid ORDER :of anticipatory bail granted by the learned Sessions Judge, the first informant has moved this Court not on any ground that the accused-opposite party no. 2 has been hampering the course of a fair trial or investigation, but purely on a question of law challenging the ORDER :as being without jurisdiction. 2. Mr. Maqbool Ahmad, learned counsel for the petitioner contended that since the opposite party no. 2 has already been made an accused in a first information lodged by the petitioner, Section 438 cannot have any application. Learned counsel contended that the High Court or the Court of Session has been conferred with the power and jurisdiction to grant anticipatory bail under Section 438 of the Code only in such cases where no accusation has yet been made. But once an accusation has been made, Section 438 can have no application. Learned counsel contended that the High Court or the Court of Session has been conferred with the power and jurisdiction to grant anticipatory bail under Section 438 of the Code only in such cases where no accusation has yet been made. But once an accusation has been made, Section 438 can have no application. If a rule had not already been issued in this case, I would have been most reluctant to interfere with the ORDER :passed by the learned Sessions Judge at the instance of the first informant in the absence of any allegation of the misuse of the privilege of bail by opposite party no. 2. Since, however, a rule has already been issued and counsel for opposite party no. 2 appeared to challenge the petitioner's petition and both the parties have made their submissions on the true scope and construction of the provisions of Section 438 and since the question involved is one of wide application. I proceed to discuss the true scope and purport of the provisions of law in question. 3. It was seriously contended by learned counsel for the petitioner that a comparison of the language of Sections 437 and 439 of the Code on the one hand with that of Section 438 on the other will go to show that Section 438 can have no application in the event of an accusation having already been made against an accused. Section 437(1) begins with words "when any person accused of or suspected of the commission of any non-bailable offence is arrested or detained" and empowers the Court to grant bail in case of non-bailable offence in certain circumstances. Section 439(1) deals with the special powers of the High Court or Court of Session to grant bail to any person accused of an offence and in custody subject to imposition of such conditions as the Court considers necessary. Section 438 reads in these terms:– "438(1) 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 the Court of Session for a 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 condition 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. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section (1)." 4. It was submitted that whereas Section 437 speaks of bail to be granted to any person accused of or suspected of the commission of any non-bailable offence and Section 439 (1) speaks of such bail to any person accused of an offence and in custody. Section 438(1) on the contrary speaks of an anticipatory bail to any person having reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. Stress has been laid by learned counsel on the difference between the words accused and may be arrested on an accusation and it is sought to be contended that by implication it must be held that the Legislature intended to preclude a case where accusation has already been made from the operation of Section 438. Learned counsel wants me to read after the word accusation in Section 438(1) likely to be made. Learned counsel wants me to read after the word accusation in Section 438(1) likely to be made. In other words, the term accusation is sought to be qualified by the term likely to be made and not covering a case of accusation already made. I am afraid this contention cannot be held to be tenable in taw. Where the term accusation has been used in Section 438 (1), it must in the fitness of things include an accusation made as much as an accusation likely to be made. So far as Sections 437 and 439 are concerned, the terms accusation or suspected of the commission of any non-bailable offence had to be used as they were dealing with the cases of persons already arrested or detained and in custody. In Section 438, on the other hand, the person approaching the Court of Session or the High Court is neither arrested nor detained nor in custody. A person may have reason to believe that he may be arrested on account of an accusation which has already been made against him of having committed a non-bailable offence. Such a person may also have reason the believe that he may be arrested on an accusation likely to be made of having committed a non-bailable offence I see no reason to restrict the language of Section 438 to only such cases where accusation is only likely to be made and not to cases where accusation has already been made, for it is seldom, if at all there be any such case, where a person without any accusation being made against him shall have reason to believe that he may be arrested. The very object of the legislation will be frustrated if such a narrow construction be put upon the language of Section 438 as learned counsel for the petitioner wants me to put. The plain dictionary meaning of the term accusation also lends support to the view I take. The Chambers' Twentieth Century Dictionary defines the word accusation as meaning the act of accusing a charge brought. Wharton's Law Lexicon says that accusation means the formal charging of any person with a crime. The plain dictionary meaning of the term accusation also lends support to the view I take. The Chambers' Twentieth Century Dictionary defines the word accusation as meaning the act of accusing a charge brought. Wharton's Law Lexicon says that accusation means the formal charging of any person with a crime. P. Ramanatha Iyer in his 'The Law Lexicon of the British India' defines the term thus "Accusation is a charge made to a competent officer against one who has committed a crime with a view to bring him to justice and punishment." I therefore, hold that Section 438 of the Code covers all such cases where a person may reasonably believe that on an allegation or accusation either made or likely to be made regarding a non-bailable offence he has or is suspected to have committed an act of criminal nature. 5. Further more, it will be seen that the power to grant anticipatory bail in such cases, which obviously is intended to be very sparingly used, is left to the discretion of the Court to exercise such power only in fit cases. It will also be seen that such a power whenever exercised, has also to be hedged in and circumscribed by such conditions as may be imposed under sub-section (2) of Section 438. A fair trial is the main objective of the Code and conditions to be imposed under sub-section (2) of Section 438 have been so laid down by the Legislature in ORDER :to ward off any threat to the continuance of a fair trial. By such conditions the smooth progress of a fair trial has been ensured. The object of the detention of the accused being to secure the attendance to abide the sentence of law, except where a statute specifically requires the principles which should guide the Court in the exercise of its discretion is the probability of the accused appearing to take the trial and not his supposed guilt or innocence. The general policy of the law is in fit cases to allow bail rather than refuse it. The bail ought not to be withheld as a punishment. Such a provision as is contained in Section 438 of the Code did not find place in the Code of Criminal Procedure, 1898. The general policy of the law is in fit cases to allow bail rather than refuse it. The bail ought not to be withheld as a punishment. Such a provision as is contained in Section 438 of the Code did not find place in the Code of Criminal Procedure, 1898. Keeping in view the background of the legislation and the previous state of law, I see no justification in curtailing the scope of the language of Section 438 by restricting it only to such cases where a person has not yet been made an accused. Only more so, since in the exercise of judicial discretion the Court granting anticipatory bail is bound to take into consideration the nature of the accusation, the nature of the offence if any, the materials in support of the accusation, the correct behaviour, means and standing of the accused and that too subject to such conditions as the Court may think fit to impose under the provisions of Section 438(2) of the Code. 6. For the aforesaid reasons, I hold that Section 438 of the Code applies to cases both where accusation is likely to be made or has already been made. I accordingly do not find any merit in this application. This application is, therefore, dismissed and the rule is discharged. Application dismissed.