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Rajasthan High Court · body

1999 DIGILAW 278 (RAJ)

Km. Soniya v. State

1999-03-04

P.K.TEWARI

body1999
JUDGMENT 1. - This petition under section 482, Cr.P.C. has been filed by the accused petitioner against the order passed by the learned Additional Sessions Judge, Kishangarh dated 25.7.1998 whereby allowing the application for anticipatory bail under Section 438. He restricted his order to remain effective till the charge sheet is filed in the Court. 2. The learned Counsel submitted on the basis of judgment of the Supreme Court in the case Gurbaksli Singh Sibbia v. State of Punjab, reported in AIR 1980 SC 1632 , that no such condition can be imposed while granting the pre-arrest bail under section 438, Cr.P.C. According to him once the bail is granted under section 438, Cr.P.C., then it cannot be limited only upto filing of the challan but it should continue till the trial of the case is concluded or the bail is cancelled by the Court. He has referred various paragraphs of the judgment and contended that the order passed by the learned Additional Sessions Judge restricting upto the stage of filing charge sheet in the Court is erroneous. 3. I have gone through the judgment (supra). I am unable to agree with the arguments advanced before me because the Hon'ble Supreme Court in Para 38 of the judgment observed as follows : "Should the operation of an order passed under Section 438(1) be limited in point of time? Not necessarily. The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time." 4. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time." 4. It would be useful to quote another judgment of Supreme Court Salauddin Abdul Samad Shekh v. State of Maharashtra, reported in (1996) 1 SCC 667 : 1 (1996) CCR 93 wherein it has been held as under: "Under Section 438 of the Code of Criminal Procedure when any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, the High Court or the Court of Session may, if it thinks fit, direct that in the event of such arrest, he shall be released on hail and in passing that order, it may include such conditions having regard to the facts of the particular case, as it may deem appropriate. Anticipatory bail is granted in anticipation of arrest in non- bailable cases, but that does not mean that the regular Court, which is to try the offender, is sought to be by-passed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular Court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted." "It should be realised that an order of anticipatory bail could even be obtained in cases of a serious nature as for example murder and, therefore, it is essential that the duration of that order should be limited and ordinarily the Court granting anticipatory bail should not substitute itself for the original Court which is expected to deal with the offence, it is that Court which has then to consider whether, having regard to the material placed before it, the accused person is entitled to bail." 5. Therefore, I am of the view that the Court can limit the operation of the order to a particular stage. The order passed by the learned Additional Sessions Judge is correct in the light of the judgment of the Supreme Court (Salauddin case). 6. However, they have been released on bail by the Trial Court under the order of this Court, nothing is to be decided further. This petition is disposed of accordingly.Petition disposed of. *******