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2004 DIGILAW 218 (ORI)

BHAGABAN PANDA v. STATE OF ORISSA

2004-04-29

L.MOHAPATRA

body2004
JUDGMENT : L.K. Mohapatra, J. - The Petitioner in BLAPL No. 2360 of 2004 has approached this Court u/s 438 of Criminal Procedure Code for grant of anticipatory bail apprehending arrest solely on the ground that on 27.2.2004 pursuant to search warrant issued by the Chief Judicial Magistrate, Sambalpur the Vigilance Police searched the residential house of The Petitioner at Berhampur and official residential quarters at Phulbani simultaneously and inventory was made in respect of movables and other household articles. The Petitioner in BLAPL No. 2589 of 2004 has moved this Court for grant of anticipatory bail u/s 438 Criminal Procedure Code apprehending arrest solely on the ground that search warrant issued by the learned special C.J.M. (Vigilance), Bhubaneswar. Pursuant to search warrant, a raid was conducted on 10.3.2004 by the Vigilance Officials. Admittedly, in both the cases no F.I.R. has been lodged as yet. 2. Learned Counsel for The Petitioners in both the cases submits that even no F.I.R. is lodged, if The Petitioner apprehends arrest on genuine ground, prayer for anticipatory bail can be maintained. Reliance was placed by the Learned Counsel for The Petitioners in both the cases on a decision of the Apex Court in the case of Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab. Shri. Mohapatra, Learned Counsel for the Vigilance Department, on the other hand, submits that prayer for anticipatory bail may De maintained even if no F.I.R. is lodged, but at the same time the Court has to see that unless there are materials to show that the accused is unnecessarily being harassed by the Investigating Agency, the Court should not grant anticipatory bail. Shri. Mohapatra also relied upon some decisions in this connection. 3. Since in both the cases the question raised is the same, they were heard together and are disposed of in this order. The Apex Court in the case of Gurbaksh Singh Sibbia v. The State of Punjab (supra) while dealing with Section 438 Criminal Procedure Code laid down the following principles: Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has 'reason to believe' that he may be attested for a nonbailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. The applicant must show that he has 'reason to believe' that he may be attested for a nonbailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested; for a nonbailable offence, must be capable of being examined by the Court objectively, because it is then alone that the Court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual is liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely. Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session, it must apply its own mind to the question and decide whether a case has been made out for grant in such relief. It cannot leave the question for the decision of the Magistrate concerned and Section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438. Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power u/s 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed. Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested. Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed. Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested. Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy u/s 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. From the above, it is clear that filing of an F.I.R. is not a condition precedent to exercise power u/s 438 of Criminal Procedure Code The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not filed. In the very same decision, the Apex Court has also observed as follows: We have said that there is one proposition formulated by the High Court with which we are inclined to agree. That is proposition No. (2). We agree that a 'blanket order' of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, requires the applicant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be aid that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue u/s 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". That is meant by a 'blanket order' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had. The rationable of a direction u/s 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. The rationable of a direction u/s 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and fats must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section. From the above observation, it is also clear that a blanket order of anticipatory bail should not generally be passed. This flows from the very language of the section which requires the applicant-accused to show that he has reason to believe that he may be arrested. A belief can be said to be founded only after there is something tangible to go by on the basis of which it can be said that the said accused's apprehension that he may be arrested is genuine. What is meant by 'blanket order' of anticipatory bail is an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which no concrete information can possibly be had. The Apex Court in the case of Enforcement Officer, Ted, Bombay v. Bher Chand Tikaji Bora and Anr. reported in (2000) 18 OCR (SC) 109 while dealing with Section 438 Criminal Procedure Code observed that when the offence is alleged to have been committed under FERA, anticipatory bail should not be granted unless it is established on materials that the accused is being harassed by the investigating agency. The accused persons in this case have been described as white-collar criminals by the Apex Court. Same is the view taken by the Apex Court in some other decisions which need not be referred to. 4. Coming to the facts of both the cases, admittedly, by virtue of search warrant issued from the competent court, the Vigilance Department has raided houses of both The Petitioners. There is no allegation whatsoever that The Petitioners have been harassed by the Investigating Agency. Only because a raid has been conducted it does not necessarily mean that an E.I.A. is likely to be lodged. There is no allegation whatsoever that The Petitioners have been harassed by the Investigating Agency. Only because a raid has been conducted it does not necessarily mean that an E.I.A. is likely to be lodged. When a raid is conducted, in my view, it is at the stage of preliminary enquiry to find out as to whether an offence has been committed or not. At this stage, there is no likelihood of being arrested unless on completion of enquiry it is found that offence under the Prevention of Corruption Act has been committed by the accused persons. In view of the above, I am of the view that prayer for anticipatory bail need not be entertained at this stage. 5. Apart from the above, in BLAPL No. 2360 of 2004, it appears that there is already a case pending against The Petitioner for commission of offence under the P.C. Act as well as offence under the Penal Code. 6. In view of the reasons stated above, prayer for anticipatory bail in both the cases is rejected. 7. Urgent certified copy of the order be granted on proper application.