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2006 DIGILAW 879 (MP)

Durgashankar Gupta v. State of M. P.

2006-07-19

A.K.SAXENA

body2006
ORDER 1. This application has been filed on behalf of the applicant under section 438 of Criminal Procedure Code (hereinafter referred to as "the Code") for anticipatory bail in connection with Crime No.444/06 registered at Police Station City Kotwali, Khandwa, under section 306 read with section 34 of Indian Penal Code. 2. Short facts of the case for consideration of this bail application are that the deceased Kishore Tiwari was Teacher/Lab Assistant in B.E. Subhash Higher Secondary School, Khandwa. All the applicants are connected with Nima Education Society. It is alleged that the applicants wanted to transfer the amount of arrears to the provident fund without the consent of employees and they failed to pay the arrears to the deceased and because of paucity of funds, the deceased committed suicide on 1.6.2006. He also left one suicidal note. The matter was reported to Police Station Kotwali, Khandwa on 1.6.2006 and the merg was registered. Thereafter, the matter was investigated and the Crime No.444/06 was registered on 12.6.2006. 3. The learned counsel for the applicants vehemently argued that no offence is made out under section 306 of Indian Penal Code on the basis of allegations made by the prosecution. The applicants have not committed any offence. The deceased Kishore Tiwari committed suicide because he could not get his arrears but it does not mean that the applicants instigated him to commit suicide. The order of the Sessions Court is based on illegal grounds. In these circumstances, the applicants are entitled for anticipatory 4. The learned counsel for the State opposed the application and contended that there is sufficient evidence against the applicants and because of the torture caused to the deceased, he had committed suicide and, therefore, a prima facie case under section 306 of Indian Penal Code is made out. In these circumstances, the applicants are not entitled for anticipatory bail. 5. I perused the whole case diary and before coming to this point whether the applicants are entitled for anticipatory bail or not, it would be proper to express an opinion on the order impugned, which was passed by III Additional Sessions Judge, Khandwa in MCrC No.442/06. 6. It has been stated in the order impugned that if there is only fear in the mind of the accused that he can be arrested in a case, he cannot be granted anticipatory bail. 6. It has been stated in the order impugned that if there is only fear in the mind of the accused that he can be arrested in a case, he cannot be granted anticipatory bail. This fear must be well founded and there should be reason to believe that he may be arrested. Mere vague apprehension is not sufficient. It has been further stated in this order that the learned counsel for the accused himself aruged that the accused have not committed any offence and they are innocent, therefore, this is sufficient ground to come to this conclusion that the accused do not have any reasonable apprehension that they may be arrested and in these circumstances, the accused are not entitled for anticipatory bail on the principles laid down in the case of Gurbaksh Singh Sibbia etc. v. The State of Punjab [ AIR 1980 SC 1632 ]. 7. Before considering above aspect of the order impugned, it would be profitable to reproduce paragraph 35 of above mentioned citation, which runs as follows: "35. 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 arrested for a non-bailable offence. The use of 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 non-bailable 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. 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's 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 granting such relief. It cannot leave the question for the decision of the Magistrate concerned under 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 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. Fourthly, anticipatory bail can be granted even after an FIR 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, insofar as the offence or offences for which he is arrested, are concerned. 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." The apex Court has dealt with all possible aspects and circumstances in which the application under section 438 of Criminal Procedure Code would be and would not be maintainable. It has been laid down that the provisions of section 438(1) of the Code cannot be invoked on the basis of vague and general allegations and there must be some reasonable apprehension of arrest. Mere fear cannot take place of belief. It is further held that the Court must apply its own mind and decide whether a case is made out for grant of such relief. 8. Mere fear cannot take place of belief. It is further held that the Court must apply its own mind and decide whether a case is made out for grant of such relief. 8. The Court has also held in case of Hariom Lokhande v. M.P. State Electricity Board [ 2006(3) JLJ 71 =2006( 1) MPLJ 156], as follows: "It is very much clear from the above provisions that the person, who has filed the application for anticipatory bail, must have reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. Therefore, two pre-requisite conditions are necessary for filing of an application for anticipatory bail -- (1) There should be reasonable belief that the person may be arrested and; (2) The arrest shall be in connection with the non-bailable offence. If these two conditions are fulfilled, certainly, the application under section 438 of the Code would lie in the Court of Session or in the High Court." 9. On a perusal of order impugned, I found that the learned Additional Sessions Judge has failed to call for the record of 'Merg' No.35/06 which was registered on 1.6.2006 at Police Station Kotwali, Khandwa. It is not a condition precedent for the maintainability of anticipatory bail application that the crime should have been registered. Registration of a crime is a procedural aspect and it has no concern with the apprehension of arrest of the accused. If a crime or even 'Merg' is not registered on the basis of an information or report submitted to the police and the facts of the information or report are sufficient to raise an apprehension in the mind of the accused that he may be arrested for a non-bailable offence, in such a situation, the application of anticipatory bail would be maintainable and the person concerned would be entitled to invoke the provisions of section 438(1) of the Code. 10. It is a matter of surprise that on the basis of arguments advanced by the learned counsel for the accused, the learned Additional Sessions Judge came to this conclusion that the accused have only fear in their minds and there is no likelihood that they may be arrested for a non-bailable offence. 10. It is a matter of surprise that on the basis of arguments advanced by the learned counsel for the accused, the learned Additional Sessions Judge came to this conclusion that the accused have only fear in their minds and there is no likelihood that they may be arrested for a non-bailable offence. It was argued by the defence counsel in the Court of ASJ that the accused are innocent and they have not committed any offence and on the basis of this argument, the Court reached at a conclusion and that too against the accused. Defence of the accused that he has not committed the offence, cannot be a ground for rejection of bail application. Whether a person is entitled for bail or not, it can be decided only on the basis of facts of the case. In these circumstances, it is very much clear that the Court below committed an error while coming to the conclusion that the bail application cannot be allowed because of arguments advanced on behalf of defence. If the accused came before the Court with this defence that they have not committed any offence, it does not mean that they do not have a reason to believe that they may be arrested for a non-bailable offence. It is for the Court to consider the grounds on which the belief of the applicant is based while deciding the application for anticipatory bail. The Court below has totally failed to apply its mind in this matter. 11. It is not clear from the order impugned as to why the Court below has failed to call for the relevant papers which were lying with the Police Station Kotwali, Khandwa. On perusal of case diary, I found that on 1.6.2006, the police had received information of death of Kishore from the Hospital and the Investigating Officer started the investigation. If 'Merg' was registered at the time of filing of anticipatory bail application, the Court below should have called for the papers of 'Merg' intimation. The Court below has totally failed to discharge its duties merely because no crime was registered and the learned counsel for the accused advanced this argument that the applicants are innocent and they have not committed any offence. The Court below has totally failed to discharge its duties merely because no crime was registered and the learned counsel for the accused advanced this argument that the applicants are innocent and they have not committed any offence. It appears that the Court below has failed to read the judgment of the apex Court passed in Gurbaksh Singh's case (supra), in correct perspective otherwise, after reading this judgment carefully, the Court below could have asked the Police Station Kotwali, Khandwa to produce all the papers and thereafter, could have applied its mind to come to this conclusion whether the accused persons have reason to believe that they may be arrested for a non-bailable offence. 12. It would not be out of place to mention that the Courts must not act upon on the basis of vague information given by anybody to decide the matter. If a party comes forward with a case, it does not mean that Court should place its trust blindly. If it is done blindly, then the justice would be defeated. The Courts are not toys in the hands of others. The Courts are supposed to examine the matter objectively and apply its own mind and then should come to the conclusion. 13. I perused the case diary, it would not be proper for this Court to express any opinion on this point whether any prima facie case under section 306 ofIndian Penal Code is made out or not against the applicants, but considering the nature of allegations, suicidal note of the deceased, statements of various witnesses recorded under section 161 of Criminal Procedure Code, I am of the opinion that the apprehension of the applicants that they may be arrested for non-bailable offence, is well founded. Considering all the facts of the case, I am of the view that this is a fit case where the applicants can be enlarged on anticipatory bail. 14. The application is allowed and it is directed that in the event of arrest of the applicants Durgashankar Gupta, Dwarka Prasad Jaiswal and Naval Kishore Agrawal, they shall be released on bail on their furnishing a personal bond in the sum of Rs.10,000/- (Rs. Ten thousand) each with a surety bond in the like amount to the satisfaction of Arresting Officer. Ten thousand) each with a surety bond in the like amount to the satisfaction of Arresting Officer. This order shall remain in force for a period of 60 days and in the meanwhile, if the applicants so desire, may move an application for regular bail before the competent Court, which shall be considered by that Court in accordance with law. The applicants shall further abide by the conditions enumerated in sub-section (2) of section 438 of the Code.