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2009 DIGILAW 1655 (BOM)

Ashik Rameshchandra Shah v. State of Maharashtra

2009-12-04

V.M.KANADE

body2009
JUDGMENT :- Heard the learned Senior Counsel appearing on behalf of the applicants and the learned APP appearing on behalf of the State. 2. On 24/11/2009, Sessions Court directed the applicants to remain present before the Court on 27/11/2009. However, oral prayer made by the applicants for protection from arrest till 27/11/2009 was rejected. On 25/11/2009, application for anticipatory bail was rejected in view of application for withdrawal of the anticipatory bail application filed by the applicants vide Exhibit-8. Applicants, therefore, apprehending arrest by the police were constrained to file this application in this Court 3.An interesting question, therefore, which has been raised before this Court is whether power of the Sessions Court in Maharashtra to direct the applicant - accused to remain present can be exercised without taking into consideration the application for interim protection and the manner, method and circumstances in which the said power has to be exercised. Before taking into consideration the facts of the present case, therefore, it would be relevant to take into consideration the Maharashtra Amendment. In 1993, the State Government was pleased to amend section 438 of the Code of Criminal Procedure which is a Central Act and the provisions viz. sub-sections (3) and (4) were inserted. The amended section 438 of the Criminal Procedure Code reads as under:- "438. In 1993, the State Government was pleased to amend section 438 of the Code of Criminal Procedure which is a Central Act and the provisions viz. sub-sections (3) and (4) were inserted. The amended section 438 of the Criminal Procedure Code reads as under:- "438. Direction for grant of bail to person apprehending arrest.-(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 that in the event of such arrest, he shall be released on bail, and that Court may after taking into consideration, inter alia, the following factors:- (i) the nature and gravity or seriousness of the accusation as apprehended by the applicant; (ii) the antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence; (iii) the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested; and (iv) the possibility of the applicant, if granted anticipatory bail, fleeing from justice, either reject the application forthwith or issue an interim order for the grant of anticipatory bail; Provided that, where the High Court, or as the case may be, the Court of Session has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. (2) Where the High Court, or as the case may be, the Court of Session, considers it expedient to issue an interim order to grant anticipatory bail under sub-section (1) the Court shall indicate therein the date on which the application for grant of anticipatory bail shall be finally heard for passing an order thereon, as the Court may deem fit; and if the Court passes any order granting anticipatory bail, such order shall include, inter alia, the following conditions, namely :- (i) that the applicant shall make himself available for interrogation by a police officer as and when required; (ii) that the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the accusation against him so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) that the applicant shall not leave India without the previous permission of the Court; and (iv) such other conditions as may be imposed under sub-section (3) of section 437 as if the bail was granted under that section. (3) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice, being not less than seven days' notice, together with a copy of such order to be served on the Public Prosecutor and the Commissioner of Police, or as the case may be, the concerned Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (4) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (4) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (5) On the date indicated in the interim order under sub-section (2), the Court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm modify or cancel the interim order made under sub-section (1)." The distinguishing feature, therefore, so far as State of Maharashtra is concerned is that if an application is made by the Public Prosecutor to the Court seeking an order for securing presence of the applicant then the Court can pass an order after taking into consideration the fact that such presence is necessary in the interest of justice. The question which falls for consideration is : whether, provisions of sub-sections (3) & (4) of section 438 have to be read together? In other words, whether it is open for the Court to direct the accused to remain present if such a request is made by the Public Prosecutor and refuse interim order to the accused. 4.Shri Adhik Shirodkar, the learned Senior Counsel appearing on behalf of applicants submitted that it is a well settled position in law that power which has to be exercised by the Sessions Courts and by the High Courts is concurrent power and that by virtue of practice which has been prevalent and by virtue of various judgments of various High Courts and Supreme Court, it has now been laid down that the applicant - accused has to first approach the Sessions Court and, thereafter, he can approach the High Court and if such an application is made in the High Court, the said application has to be treated as fresh application. He submitted that in exceptional circumstances, the applicant may choose to apply directly to High Court under certain exceptional circumstances, otherwise the normal rule is to first approach the Sessions Court. In support of the said submission, he invited my attention to the judgments of various Courts which I shall refer to at the latter stage. He submitted that in exceptional circumstances, the applicant may choose to apply directly to High Court under certain exceptional circumstances, otherwise the normal rule is to first approach the Sessions Court. In support of the said submission, he invited my attention to the judgments of various Courts which I shall refer to at the latter stage. He submitted that, therefore, as a result of the law laid down by the various courts including this court, applicant has no other option buy to approach the Sessions Court. He submitted that, however while exercising power under sub-section (4) of section 438 (inserted by Maharashtra Amendment Act 24 of 1993 w.e.f. 28-7-2993) giving direction to the accused to remain present in Court, the Court has to consider the question of granting interim relief so as to protect him when he appears before the court, otherwise in view of various judgments of this Court and the Apex Court, it is open for the Investigating Officer to arrest the accused without warrant in cases where offence is a cognizable offence, if no protection has been granted by the court. He submitted that, therefore, if no interim protection is granted by the Court and accused is directed to remain present in court, the Investigating Officer can wait for the applicant at the gate of the court and pounce upon him to arrest him since he does not have interim protection. It is therefore submitted that the very purpose of provisions of section 438 would be defeated if interim protection is not granted to the accused and, at the same time, he is directed to remain present in court. He submitted that while considering the application made by the prosecution seeking presence of the applicant in court, the court cannot act in a mechanical manner and has to consider whether presence of the accused is necessary in the interest of justice. He further submitted that the words 'interest of justice' have not been defined in the Act nor the word 'justice' and, therefore, the expression "interest of justice" would mean interest not only of the prosecution in carrying out investigation pursuant to the power given to them under the law but also the interest of the accused for the purpose of securing anticipatory bail which right has been given to him under section 438. The learned Senior Counsel then invited my attention to the judgment of the Constitutional Bench of the Apex Court in Gurubaksh Singh Sibbia vs. State of Punjab (1980) 2 SCC 566. He submitted that the Constitutional Bench of the Apex Court also has laid down that the Sessions Court or the High Court has power to grant interim protection. He submitted that, in the present case, the learned Sessions Court had erred in not granting interim protection to applicants and, at the same time, directing applicants to remain present in court on the next day. Another submission was made by the learned Senior Counsel that the applicant is entitled for further protection in the event of rejection of the application for anticipatory bail and in support of the said submission he relied upon the judgment of this Court in C.P Nagia, Assistant Collector of Customs, Bombay v. Omprakash Aggarwal and another 1994 CRI.L.J. 2160. 5.The learned APP appearing on behalf of the State, on the other hand, submitted that the Sessions Court had a discretion to consider the application made by the Public Prosecutor for the purpose of securing presence of the applicant. She submitted that the said provision has been incorporated in order to ensure that the accused is available for interrogation and that he does not abscond and, therefore, by virtue of such order, his presence is secured so that after securing his presence, the court can take into consideration whether the applicant is entitled to get an order of anticipatory bail or not. She submitted that if such an order is not passed the process of investigation would be hampered and valuable time would be lost during which time the applicant may get a chance to tamper with the evidence or to remain away throughout the process of investigation. She submitted that the power to consider the application for interim protection and the power to consider the application of the prosecution securing presence of the accused are two different aspects and, therefore, they are not dependent on each other. She submitted that the power to consider the application for interim protection and the power to consider the application of the prosecution securing presence of the accused are two different aspects and, therefore, they are not dependent on each other. 6.After having heard the learned Senior Counsel appearing on behalf of applicants and the learned APP appearing on behalf of the State and after taking into consideration various judgments on which reliance is placed by the learned Senior Counsel appearing on behalf of applicants and from the conspectus of cases which have been cited before this Court, I am of the view that section 438 lays down the manner and method and circumstances under which order of pre-arrest can be passed or not passed. In that sense it is a self-contained Code and a scheme in itself and these provisions, therefore, have to be read as a whole and it cannot be said that provisions of sub-sections (3) & (4) of section 438 are mutually exclusive and operate in different ways. The Apex Court in Gurubaksh Singh Sibbia (supra) has observed in paragraphs 7, 26, 19, 16, 17, 42 and 43 as under:- "(7) The facility which Section 438 affords is generally referred to as 'anticipatory bail', an expression which was used by the Law Commission in its 41st Report. Neither the section nor its marginal note so describes it but, the expression 'anticipatory bail' is convenient mode of conveying that it is possible to apply for bail in anticipation of arrest. Any order of bail can, of course, be effective only from the time of arrest because, to grant bail, as stated in Wharton's Law Lexicon is to 'set at liberty a person arrested or imprisoned, on security being taken for his appearance'. Thus, bail is basically release from restraint, more particularly, release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial. Thus, bail is basically release from restraint, more particularly, release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial. Personal recognisance, suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself at the trial of offence or offences of which he is charged and for which he was arrested." "The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is a inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it is pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. Section 46(1) of the Code of Criminal Procedure which deals with how arrests are to be made, provides that in making the arrest, the police officer or other person making the arrest "shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word of action". A direction under Section 438 is intended to confer conditional immunity from his 'touch' or confinement." "(26) We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on he scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on he scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi, (Maneka Gandhi v. Union of India, (1978) 1 SCC 248 ) that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein." "19. A great deal has been said by the High Court on the fifth proposition framed by it, according to which, inter alia, the power under Section 438 should not be exercised if the investigating agency can make a reasonable claim that it can secure incriminating material from information likely to be received from the offender under section 27 of the Evidence Act. According to the High Court, it is the right and the duty of the police to investigate into offences brought to their notice and, therefore, courts should be careful not to exercise their powers in a manner which is calculated to cause interference therewith. It is true that the functions of the judiciary and the police are in a sense complementary and not overlapping. It is true that the functions of the judiciary and the police are in a sense complementary and not overlapping. As observed by the Privy Council in King-Emperor v. Khwaja Nazir Ahmed (1943-44) 71 IA 203 : AIR 1945 PC 18 : 46 Cri LJ 413)." "Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry ..... The functions of the judiciary and the police are complementary, not overlapping, and the combination of the individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function,. . ." "But these remarks, may it be remembered, were made by the Privy Council while rejecting the view of the Lahore High Court that it had inherent jurisdiction under the old Section 561-A, Criminal Procedure Code, to quash all proceedings taken by the police in pursuance of two first information reports made to them. An order quashing such proceedings puts an end to the proceedings with the inevitable result that all investigation into the accusation comes to a halt. Therefore, it was held that the court cannot, in the exercise of its inherent powers, virtually direct that the police shall not investigate into the charges contained in the FIR. We are concerned here with a situation of an altogether different kind. An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the usual conditions incorporated in a direction issued under Section 438(1) are those recommended in sub-section (2)(i) and (ii) which require the applicant to cooperate with the police and to assure that he shall not tamper with the witnesses during and after the investigation. While granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. While granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery." "Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in the principle stated by this Court in State of U.P. v. Deoman Upadhyaya ((1961) 1 SCR,14, 26 : AIR 1960 SC 1125 : 1960 Cri LJ 1504) to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed so have surrendered himself to the police. The broad foundation of this rule is stated to be that Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody : submission to the custody by word or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under section 167(2) of the Code is made out by the investigating agency." "16. A close look at some of the rules in the eight-point code formulated by the High Court will show how difficult it is to apply them in practice. The seventh proposition says: "The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised." "17. How can the court, even if it had a third eye, assess the blatantness of corruption at the stage of anticipatory bail? And will it be correct to say that blatantness of the accusations will suffice for rejecting the bail, if the applicant's conduct is painted in colours too lurid to be true? How can the court, even if it had a third eye, assess the blatantness of corruption at the stage of anticipatory bail? And will it be correct to say that blatantness of the accusations will suffice for rejecting the bail, if the applicant's conduct is painted in colours too lurid to be true? The eighth proposition rule framed by the High Court says : "Mere general allegations of mala fides in the petition are inadequate. The court must be satisfied on materials before it that the allegations of mala fides are substantial and the accusation appears to be false and groundless." "Does this rule mean, and that is the argument of the learned Additional Solicitor-General, that anticipatory bail cannot be granted unless it is alleged (and naturally, also shown, because mere allegation is never enough) that the proposed accusation are mala fide? It is understandable that if mala fides are shown, anticipatory bail should be granted in the generality of cases. But it is not easy to appreciate why an application for anticipatory bail must be rejected unless the accusation is shown to be mala fide. Thus, truly, is the risk involved in framing rules by judicial construction. Discretion, therefore, ought to be permitted to remain in the domain of discretion, to be exercised objectively and open to correction by the higher courts. The safety of discretionary power lies in this twin protection which provides a safeguard against its abuse." "42. There was some discussion before us on certain minor modalities regarding the passing of bail orders under Section 438(1). Can an order of bail be passed under the section without notice to the Public Prosecutor ? It can be. But notice should issue to the Public Prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. 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 short period until after the filing of an FIR in respect of the matter covered by the order. 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 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." "43. During the last couple of years this Court, while dealing with appeals against orders passed by various High Courts, has granted anticipatory bail to many a person by imposing conditions set out in Section 438(2)(i), (ii) and (iii). The court has, in addition, directed in most of those cases that (a) the applicant should surrender himself to the police for a brief period if a discovery is to be made under Section 27 of the Evidence Act or that he should be deemed to have surrendered himself if such a discovery is to be made. In certain exceptional cases, the court has, in view of the material placed before it, directed that the order of anticipatory bail will remain in operation only for a week or so until after the filing of the FIR in respect of matters covered by the order. These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The court has attempted through those orders to strike a balance between the individual's right to personal freedom and the investigational rights of the police. The appellants who were refused anticipatory bail by various courts have long since been released by this Court under Section 438(1) of the Code." Therefore, the Apex Court has laid down the power and scope of the power which has to be exercised by the Courts under section 438. The appellants who were refused anticipatory bail by various courts have long since been released by this Court under Section 438(1) of the Code." Therefore, the Apex Court has laid down the power and scope of the power which has to be exercised by the Courts under section 438. The Apex Court also has observed that the Court has power to grant interim protection when it comes to the conclusion that it is not possible to decide the case immediately and during such time appropriate interim orders can be passed. 7.Similarly, in view of various judgments relied upon by the parties, it is apparent that (i) the power under section 438 is concurrent power which is vested in High Court and Sessions Court. However, by virtue of judicial precedents, it has now been held that applicant has to first approach the Sessions Court and, thereafter, the High Court and (ii) after the order is passed by the Sessions Court applicant has a right to approach the High Court and if such an application is made, High Court has to consider that application as a fresh application and consider the application on merits and in accordance with law. That being the position, applicant has no other option but to approach the Sessions Court unless under exceptional circumstances he approaches the High Court first and the High Court, after recording its reasons, entertains such application which is directly filed, otherwise the normal procedure is to approach the Sessions Court first. This being the position, it is expected that when such an application is filed before the Sessions Court, the Sessions Court may decide the application for interim protection and if it comes to the conclusion that prima facie case is made out by the applicant, it can grant an order of interim protection but if the court comes to the conclusion that the accused is not entitled to seek an order of interim protection, it may reject the said application in which case the applicant may have an option to approach the higher court. The question, therefore, which is posed before this Court is : whether, while exercising power under sub-section (4) of section 438 directing the accused to remain present in Court, the Court can refuse to entertain the application for interim relief and, yet, direct him to appear before the court? The question, therefore, which is posed before this Court is : whether, while exercising power under sub-section (4) of section 438 directing the accused to remain present in Court, the Court can refuse to entertain the application for interim relief and, yet, direct him to appear before the court? In my view, if such a course of action is undertaken by the court, in that case, provisions of section 438 would be rendered nugatory and the very purpose for which the said provision has been incorporated would be frustrated. The legislature in its wisdom thought it fit to incorporate the said provision in the Code after it realized that on many occasions false and frivolous cases are filed against individuals, either with a view to defame such persons or on account of political or business vendetta or for the purpose of setting personal scores and, therefore, in order to give protection to such persons, the legislature thought it fit to incorporate the said provision. The Apex Court in Gurbaksh Singh Sibbia (supra) held that in a fit case, even if an application is filed where the applicant is accused of an offence punishable under section 302, such an application can be entertained and, therefore, the Apex Court itself has laid down the law that there is no bar for entertaining an application for anticipatory bail, unless it is shown by the prosecution that the application is not bonafide and that the applicant is not sought to be involved or implicated in a false case. By virtue of amendment to section 438, further guidelines have been laid in the section itself which is evident from section 438(1)(i) to (iv). The said sub-section (1) of section 438 also specifically states that the court, after taking into consideration the factors given in the said provision, has to either reject the application forthwith or issue an interim order granting anticipatory bail. The court, therefore, is not expected to direct the accused to remain present in court while exercising its power under sub-section (4) and, at the same time, not consider the application for interim relief. It can either refuse interim relief and reject the application at the threshold or grant interim protection and thereafter consider whether in the interest of justice it is necessary to secure presence of the accused on the application being made by the prosecution. 8. It can either refuse interim relief and reject the application at the threshold or grant interim protection and thereafter consider whether in the interest of justice it is necessary to secure presence of the accused on the application being made by the prosecution. 8. So far as words 'interest of justice' used in sub-section (4) of section 438 are concerned, the said term obviously means the interest not only of the prosecution but also of the accused of seeking fair and proper administration of criminal justice and giving a fair opportunity to the applicant -accused of securing substantive right which accrues in his favour by virtue of section 438. Provisions of sections 438(1), (3) and (4), therefore have to be read together and they cannot be read in isolation. 9. It would be profitable to reproduce the observations made by the three learned Single Judges of this Court with regard to power of the court to be exercised under section 438. In State of Maharashtra v. Kachrusingh Santaramsingh Rajput and Anr. 1994 (3) BomCR 348 learned Single Judge had an occasion to consider this aspect and the learned Single Judge has observed in paras 7, 8, 9 and 10 as under:- "7. It was thought for some time that if a person who approached the Court for anticipatory bail loses his cause, he could not be arrested or he should not be arrested or he should be arrested immediately. Proviso to sub-section (1) now removes the doubt on that point by providing that where the High Court or the Court of Sessions, as the case may be has not passed any interim order under that sub-section, or, has rejected outright the application for grant of anticipatory bail, it would be open to the officer-in-charge of a Police Station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application i.e the application preferred by the person seeking anticipatory bail. It is, thus, clear that the person approaching the Court for anticipatory bail under section 438(1) is not given any absolute protection as such, by the section till he has secured some protection from the Court, either in the form of anticipatory bail or, in the form of an interim order of protection or, interim order for bail." "8. It is, thus, clear that the person approaching the Court for anticipatory bail under section 438(1) is not given any absolute protection as such, by the section till he has secured some protection from the Court, either in the form of anticipatory bail or, in the form of an interim order of protection or, interim order for bail." "8. As sub-section (1) of section 438 itself contemplated an order for interim anticipatory bail, a provision had to be made immediately about the grant of such interim relief. The sub-section (2) of section 438, therefore, considers that eventuality and provides that where the High Court or the Sessions Court, as the case may be, considers it expedient to issue an interim order to grant anticipatory bail, the Court shall comply with the requirements which are indicated in that sub-section, namely:- (I) Indicate in the order, the date on which application for grant of anticipatory bail shall be finally heard for passing an order thereon. (II) At the time of passing orders for interim anticipatory bail, such order shall include, inter alia, the four conditions indicated in the said section, namely :- (i) That the applicant shall make himself available for interrogation by a Police Officer as and when required; (ii) That the applicant shall not directly or indirectly make any inducement, threat or promise to any other person acquainted with the facts of the accusations against him so as to dissuade him from disclosing such facts to be Court or to any officer. (iii) That the applicant shall not, leave India without the previous permission of the Court; and (iv) Such other conditions as may be imposed under sub-section (3) of section 437 as if the bail was granted under that section." "The provisions of this sub-section (2) of section 438 of the Code of Criminal Procedure, therefore, make it clear that the object of grant of anticipatory bail or, a protection, during the pendency of a petition for such anticipatory bail should not, in any event, stall the investigation, stall the interrogation of the accused, or impliedly or otherwise give liberty to the accused to be away from the due process of law. A duty is cast on the Court, now explicitly, that the Court shall ensure, whenever it extends any sort of protection to the accused approaching it for protection, that he shall not dodge the legal process and he shall co-operate with the Investigating Officer in the matter of investigation of the offence." "9. An eventuality might arise that the Public Prosecutor appearing on behalf of the State before a particular Court, was not able to say anything in the matter of grant of interim bail for want of instructions or adequate instructions. He might ask from the Court some accommodation, some time to enable him to put before the Court the reasons for which the State wanted to resist an application made for anticipatory bail. In such an eventuality, ordinarily, the Court shall not leave the applicant-accused without extending the protection of the Court to him, may it be temporary. Where the Court decides to grant such an interim protection to a particular accused / applicant, it is now made obligatory on the Court to issue forthwith a notice to the Public Prosecutor and the Commissioner of Police or the Superintendent of Police, "as the case may be" being not less than seven days' notice (with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court). This provision has a very specific object, namely, to give the prosecution some reasonable opportunity to place before the Court its case in the context for prayer for anticipatory bail made by the applicant before it. In some cases, it may so happen that the Public Prosecutor may urge before the Court that the State would not arrest a particular accused for a day or two and that the say would be put in before the Court as early as possible, within a day or two. In such an eventuality, the Court may not pass any order for anticipatory bail or for grant of interim protection. The provisions contained in subsections (2) and (3) do not make it obligatory on the Court to pass necessarily an order for interim bail or for an interim protection, even in cases where the State undertakes not to arrest the particular person for a day or two, or till they are able to put up their case before the Court." "10. It is this point which strikes at the root of the submission, which was advanced on behalf of the respondents before us. If at all in the circumstances as indicated in the preceding paragraph the Court refrains from passing any interim order, would it mean that the Court would not require, if so prayed for in appropriate cases, the petitioner to remain present in the Court at the time of final hearing? The answer has got to be in the negative. Sub-section (4), in that respect, stands on its own. It provides that the presence of an applicant seeking an anticipatory bail, shall be obligatory at the time of final hearing of the application and passing of the final order by the Court, "if on an application made to it by the Public Prosecutor the Court considers such presence necessary in the interest of justice". Thus, the presence of the accused may be directed by the Court on an application of the Public Prosecutor and only if the Court considers such presence necessary in the interest of justice. Again, sub-section (4) did not put limitation on the power of the Court to direct suo-motu in the interest of justice, a particular accused to remain present in the Court at the time of final hearing of the application. It is not necessary to read sub-section (4) of section 438 as rigidly as that. It is a power to be exercised by the Court in the interest of justice. The justice does not always lie in protecting the person who is an accused. The justice also lies in ensuring, in appropriate cases where the State exercises its power of investigation strictly according to law, in not creating hindrance in the exercise of the lawful powers of the State. We do not think that sub-section (4) of section 438 prescribes or imposes any limitation on the power of the Court, to direct the accused to remain present in the Court at the time of final hearing, whenever it thinks such presence necessary in the interest of justice." "14. Mr. We do not think that sub-section (4) of section 438 prescribes or imposes any limitation on the power of the Court, to direct the accused to remain present in the Court at the time of final hearing, whenever it thinks such presence necessary in the interest of justice." "14. Mr. Loya was right, to some extent, in contending that the very purpose of introducing section 438 in the Code of Criminal Procedure and of substituting the said section in the new form was to strike a balance between the rights of the State to investigate through police into the offences according to the established procedure of law and the individual liberties of a person against whom accusation of serious crimes were made. Neither the old section 438 nor the section newly substituted in its place, started with a non-obstante clause. Both the sections do not provide that the provisions contained therein are, over and above, the common law as incorporated in Chapter XII of the Code of Criminal Procedure, which defines the powers of the police to investigate into the offences. True it is that, at a criminal trial, there is a presumption of innocence in favour of an accused person, but all the same there is no presumption of law that every activity of an individual is innocent or, that if the accusations are made as per law against the person, the police are to start with a presumption that the accusations are false and no offence has taken place. Again, it is not the intention of the law to protect a person who had indulged in criminal activity or, who is alleged to have committed a crime. The provisions contained in old section 438 or the section now substituted in its place, are not intended to protect any person who is accused of a serious offence. Indeed, the provisions are incorporated in the Statute-Book for protecting a person who has, in fact, not committed any crime or, who has not been indulging in any criminal activity and yet on account of some extraneous reasons, he is being implicated in a false accusation." "It may be that, in a given case, the investigation is not honest or is not subjected to process of law for reasons which are not good at law, or in a manner, which is not warranted by law. It is only in these last mentioned contingency that the individual liberty must be fully protected according to law. Mere apprehension of an arrest by a person does not, by itself, afford that person has right to claim a protection under the provisions contained in section 438 of the Code of Criminal Procedure. Just as section 157(1) of the Code casts an obligation on the police to (a), proceed to the spot (b) investigate the facts and circumstances of the case and (c) if necessary, to take measures for recovery before an offender can be arrested and subjects the police to comply with the provisions contained in sections 158, 167, and 168 of the Code, section 438 casts a duty on the courts, not to protect a person who is alleged to have committed a crime or who is alleged to be indulging in criminal activity or who is keeping himself away from the legal process if there are good reasons to suppose that he has been doing so, section 438, old or substituted virtually operates as an injunction against the police restraining them to arrest an offender as required by section 157(1) of the Code of Criminal Procedure and to release him on bail, if arrested on the terms and conditions imposed on the alleged offender by the Court. While issuing an injunction, the Courts have got to be extraordinarily cautious, particularly in view of the deteriorating law and order situation day by day, in exercising the powers which are conferred upon them under section 438 of the Code of Criminal Procedure. The powers under section 438 of the Code are to be exercised "in the interest of justice" and not otherwise." "At the cost of repetition, it may be stated that justice does not always lie in protecting a person who has committed a crime or who has been indulging in criminal activity or who has been keeping himself away from legal process. Committing a serious offence or indulging in serious criminal activity dodging the legal process is a wrong against not only an individual but against the society at large and it is high time that the Court should bear that consideration in mind while exercising the power contained in section 438 of the Code of Criminal Procedure. Committing a serious offence or indulging in serious criminal activity dodging the legal process is a wrong against not only an individual but against the society at large and it is high time that the Court should bear that consideration in mind while exercising the power contained in section 438 of the Code of Criminal Procedure. The provisions contained in Chapter XII of the Code of Criminal Procedure, and in particular, the powers to arrest a person under section 157(1) of the Code are as much part of normal criminal law as are the provisions contained in section 438 of the Code. Therefore, the provision contained in section 438 of the Code are required to be implemented subject to the powers of the police conferred upon them under Chapter XII of the Code of Criminal Procedure. The balance between liberty of an individual and the rights arising out of the legal and constitutional duties of the police to investigate into the offence is to be struck by the Courts in accordance with the aforesaid considerations and in a manner which is conducive to the cause of justice." While deciding the Criminal Application No.4370 of 2004 in Goyappa Jalagiri v The State of Maharashtra, the learned Single Judge of this Court (Coram: A.M. Khanwilkar, J.) vide order dated 20th October, 2004, observed as under:- "P.C. 1) Heard counsel for the parties. Perused the record. The court below, to my mind, has committed manifest error in assuming that provisions of sub sections 3 and 4 of section 438 are independent. Sub sections of Section 438 are independent. Sub Sections of section 438 as applicable to the State of Maharashtra will have to be read conjointly and if so read the scheme appears to be that when the court insist for appearance of any applicant before the application is finally heard or at any other stage of the hearing of the application, the appropriate course would be to protect the applicant for the limited purpose so as to enable him to appear before the court. If such limited protection is not extended to the applicant, the applicant would be obviously exposed to the threat of arrest and for which purpose Section 438 has been brought into force. If such limited protection is not extended to the applicant, the applicant would be obviously exposed to the threat of arrest and for which purpose Section 438 has been brought into force. Viewed in this perspective, the Sessions Judge, Sangli, has committed manifest error in proceeding on the assumption that it was not necessary to extend any protection to the applicant as to enable him to appear before the Court. As the court below has not considered any other aspects on merits, to my mind, following order will meet the ends of justice: (a) The applicant is protected for a period of one week from today to enable him to make fresh application before the Sessions Court at Sangli, who in turn shall decide the same on its own merits in accordance with the law. (b) That the applicant will not be arrested by the police in connection with the offence registered as C.R. No.6 of 2004 in Umadi Police Station, Sangli. That will not preclude the Investigating Officer to ask the applicant to attend the police station for the purpose of interrogation till the Anticipatory Bail Application is disposed of. Application disposed of accordingly." While deciding Criminal Application No.569 of 2001 in Vijaya Ramesh Ramdasi v. State of Maharashtra the learned Single Judge (Coram: N.V. Dabholkar, J. (as he then was)) vide order dated 20/3/2001 observed in paras 7 and 8 as under:- "7. On going through the text, certainly there is no reference to interim anticipatory bail in sub-section (4). However, it is difficult to agree with the proposition of learned APP that sub-section (4) should be read independently and without any reference to subsections (3) and (5), between which the said provision is sandwiched." "In this context, reference to proviso, incorporated in sub-section (1) is a must. This proviso is conspicuously absent in the substantive section 438(1) of the Code. This proviso is conspicuously absent in the substantive section 438(1) of the Code. The proviso reads as follows : "Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application." "Thus, on reading proviso to sub-section (1), it is evident that mere pendency of application for anticipatory bail is not a bar to effect arrest of the applicant on the basis of allegation for which he apprehends arrest. The Investigating Officer will be required to stay away, only if the applicant has succeeded in securing the interim anticipatory bail." "As can be seen by comparison of section 438(1) and (2), as it stood before the substitution by State amendment and Section 438(1) and (2) as introduced by the State Amendment, it can be seen that notion of interim anticipatory bail is totally absent in the original section, which seems to have been officially introduced by the express, statutory provisions by the State amendment. Sub-section (2) as incorporated by State amendment expressly introduces the provision of grant of interim anticipatory bail, while maintaining the same conditions, those can be imposed upon the applicant by the Court, which were available for final grant of anticipatory bail in the Central Legislation." "Thus, the contention of Shri Patil that Section 438 of the Code as introduced by the State amendment should be read as a scheme within itself has substance. The scheme makes a provision for considering certain factors for grant of anticipatory bail by the Court; as embodied in sub-section (1). In case, the Court is not pleased to grant interim anticipatory bail, it is open for the Investigating Officer to effect arrest on the allegations for which the arrest is apprehended. Pendency of application for anticipatory bail is no impediment in effecting such an arrest and even on rejection of application for anticipatory bail, the investigating officer is at liberty to effect immediate arrest of the applicant without requiring a warrant for the purpose." "8. Pendency of application for anticipatory bail is no impediment in effecting such an arrest and even on rejection of application for anticipatory bail, the investigating officer is at liberty to effect immediate arrest of the applicant without requiring a warrant for the purpose." "8. While considering, whether the grant of interim anticipatory bail is sine-qua-non for the Court to order personal presence of the applicant on the date fixed for final hearing, practical effect of the scheme as a whole must be taken into consideration. In case the applicant is not granted interim anticipatory protection and still the Court directs the applicant to remain present in the Court on the date fixed for final hearing, by virtue of proviso to sub-section (1), it is open for the Investigating Officer to effect arrest of the applicant. The direction under sub-section (4), if considered as an independent and irrespective of interim protection, will prove to be a mouse trap and not a protection of personal liberty of the citizen. Being under the Court directions the applicant would be obliged to proceed towards the Court and Investigating Officer can wait at the entrance gate of the Court premises." "The proposition of learned APP that sub-section (4) is an independent power and can be exercised without granting interim protection is, therefore, unacceptable, being against the spirit of provision of anticipatory bail, which is believed to be for the purpose of protection of personal liberty guaranteed by the Constitution of India. It must, therefore, be said that the Court entertaining the application for anticipatory bail shall be in a position to insist for personal presence of the applicant, although in the interest of justice on the date fixed for final hearing or on any other date fixed for hearing, provided the applicant is granted protection by interim anticipatory bail. In case sub-sections (3), (4) and (5) are not to be read together in this fashion, by virtue of proviso to sub-section (1) the Court itself shall be indulging into frustrating the petitions." 10. I am, therefore, fortified in my view by virtue of the observations made by the aforesaid three learned Single Judges of this Court on this aspect. Therefore, I am of the view that the learned Sessions Judge clearly erred in directing the applicants to remain present in court without granting any interim protection in this case. 11. I am, therefore, fortified in my view by virtue of the observations made by the aforesaid three learned Single Judges of this Court on this aspect. Therefore, I am of the view that the learned Sessions Judge clearly erred in directing the applicants to remain present in court without granting any interim protection in this case. 11. I am informed that the said provision is being used by the prosecution for the purpose of arresting the accused and the courts, very often, after passing an order under sub-section (4) of section 438 do not grant any interim protection. In my view, it would be appropriate, therefore, to take into consideration the scheme of section 438 that if an application is preferred by the prosecution for the purpose of securing presence of the accused, the courts, if they want to pass favourable order granting the application in such cases it would be appropriate if some reasons are assigned as to why it feels that presence of the accused is necessary and ordinarily should grant interim protection to the accused so that the prosecution on the pretext of securing presence of the accused does not arrest the accused and make his application infructuous. 12. So far as the merits of the present case are concerned, in my view, applicants have made out a case for grant of anticipatory bail. One Rameshchandra Shah and Haresh Kapadia who are father and father-in-law of applicant No.1 respectively had made representations to the complainant that certain land belonging to Rayon Mills was available for sale and that they could assist the complainants to secure that land and, for that purpose, they had asked the complainants to deposit an amount of Rs.1 crore each in the Bank of Maharashtra and Sangli Bank and thereupon asked them to pay their fees to the tune of Rs.1.25 crores. This agreement took place sometime in 2007 and, after depositing the amount of Rs.1 crore each in Maharasthra Bank and Sangli Bank, an amount of Rs.1.25 crores was deposited in the account of applicant No.3. This agreement took place sometime in 2007 and, after depositing the amount of Rs.1 crore each in Maharasthra Bank and Sangli Bank, an amount of Rs.1.25 crores was deposited in the account of applicant No.3. According to the complainants, thereafter, no further steps, as required under the said agreement, were taken and, therefore, a notice was sent by the complainants to the applicants herein, asking them to refund the said amount of Rs.1.25 crores and the said notice was to be treated as notice of winding up under the provisions of Companies Act. The reply was given by the applicants herein denying the allegations which were made by the complainants. It was denied that the said amount of Rs.1.25 crores was deposited in their account. It was further denied that there was any meeting held between the applicants and two other gentlemen viz. Rameshchandra Shah and Haresh Kapadia and the Complainants' Directors. A civil suit has been filed by the complainants in this Court for recovery of the said amount. Under the facts and circumstances of this case, therefore, there is some substance in the submissions made by the learned Senior Counsel appearing on behalf of applicants that the entire exercise of filing a complaint after 26 months, essentially, is an arm-twisting technique employed by the complainants to secure an amount of Rs.1.25 crores from the present applicants who had no concern of whatsoever with the said agreement between Rameshchandra Shah and Haresh Kapadia and the complainants. It is an admitted position that Rameshchandra Shah, father of applicant No.1 has expired and though no application was filed by Haresh Kapadia for anticipatory bail, no steps have been taken by the police to arrest him. Applicant No.2 is a wife of applicant No.1 and she, according to the learned Senior Counsel appearing on behalf of applicants, is not concerned with day-to-day management of the Company. 13. In my view, therefore, taking into consideration the aforesaid facts and circumstances, in any event, custodial interrogation of applicants is not necessary. Prima facie case, therefore, is made out by applicants for grant of anticipatory bail. Application also appears to have been filed against the present applicants to pressurise them to pay the said amount of Rs.1.25 crores which was paid to Haresh Kapadia father-in-law of applicant No.1 and Rameshchandra Shah who is a father of applicant No.1 and who had expired in the meantime. Application also appears to have been filed against the present applicants to pressurise them to pay the said amount of Rs.1.25 crores which was paid to Haresh Kapadia father-in-law of applicant No.1 and Rameshchandra Shah who is a father of applicant No.1 and who had expired in the meantime. 14.In the result, the following order is passed:- ORDER In the event of the arrest of the applicants in connection with the offence punishable under section 420 and 120-B of the Indian Penal Code which is registered with Tardeo Police Station vide MECR No.05 of 2009, they shall be released on bail in the sum of Rs.10,000/- each with one or two sureties each in the like amount. Initially, in the event of arrest, applicant Nos.1 and 2 shall furnish cash bail of Rs.10,000/- each and within two weeks thereafter, they shall furnish sureties of the said amount. Applicant No.1 shall report to Tardeo Police Station for a period of one week from 7th December, 2009 and, thereafter, as and when called. It is clarified that the applicant No.1 shall be called between 11.00 A.M. and 5.00 P.M., after giving him 24 hours notice. Application for anticipatory bail is disposed of. Parties to act on the copy of this order duly authenticated by the registry.