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2011 DIGILAW 331 (MP)

Babriya v. Prakash

2011-03-10

N.K.MODY

body2011
JUDGMENT : N.K. Mody, J. Heard with the aid of case-diary. 2. This is first application for anticipatory bail filed under Section 438 of Cr.P.C. in connection with Crime No. 4/11 registered at Police Station, Pansemal Badwani for the commission of the alleged offence punishable under Sections 201, 452 read with Section 34 of IPC. 3. Learned Counsel for petitioners submitted that petitioner No. 1 is Station Officer of Police Station, Pansemal while petitioner No. 2 is Head Constable and petitioner No. 3 is Constable in the same Police Station. It is submitted that deceased Surekha who was residing in the company of respondent No. 1 which was objectionable to her brother and son namely Deepak and Keshar. Learned Counsel further submitted that in the circumstance Deepak and Keshar took Surekha forcibly from Pansemal to Village Malgaon where she consumed poisonous substance with the result she died. It was alleged that Deepak son of deceased, took her body to the hospital where she was declared dead. Upon intimation given by the concerned hospital case was registered by petitioner No. 1 and after investigation it was found that cause of death is consuming poisonous substance. It is submitted that case has been registered against Deepak and Keshar by the petitioners under Section 306, IPC in which charge-sheet has also been filed. Petitioners and 14 other accused have been falsely implicated while they committed no offence. It is also submitted that in the similar circumstances Dr. Pradeep has also been bailed out vide order dated 17-2-2011 in M.Cr.C. No. 890/2011 under Section 438, Cr.PC, therefore, prayed for anticipatory bail. 4. Learned Counsel for respondent No. 1 submits that deceased was living in the house of Riadiya who was land lady. She has given statement in the private complaint filed by respondent No. 1 under Section 200, Cr.PC wherein she has stated that she had an occasion to see the body of deceased Surekha with full of injuries. Her photographs have also been filed. It is submitted that in the circumstances petition be dismissed. Learned Counsel for State also supports statement given by Counsel for respondent No. 1. 5. In Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others, 2011(1) M.P.H.T. 430 (SC) = (2011) 1 SCC 694 . Her photographs have also been filed. It is submitted that in the circumstances petition be dismissed. Learned Counsel for State also supports statement given by Counsel for respondent No. 1. 5. In Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others, 2011(1) M.P.H.T. 430 (SC) = (2011) 1 SCC 694 . Hon'ble Apex Court had a occasion to consider the provisions of Section 438, Cr.PC, which relates to anticipatory bail and has observed that:- "In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the Trial Court, then it would be unreasonable to compel the accused to surrender before the Trial Court and again apply for regular bail. It was further observed that the Court must bear in mind that at times the applicant would approach the Court for grant of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non-bailable offence. In fact, the investigating agency concerned may not otherwise arrest that applicant who has applied for anticipatory bail but just because he makes an application before the Court and gets the relief from the Court for a limited period and thereafter he has to surrender before the Trial Court and only thereafter his bail application can be considered and the life of anticipatory bail comes to an end. This may lead to disastrous and unfortunate consequences. The applicant who may not have otherwise lost his liberty loses it because he chose to file application of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non-bailable offence. No arrest should be made because it is lawful for the police officer to do so. The existence of power to arrest is one thing and the justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Hon'ble Supreme Court has further observed that "once the anticipatory bail is granted then the protection should ordinarily be, available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the Court is cancelled by the Court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused. While concluding Hon'ble Supreme Court has observed that "in view of the clear declaration of law laid down by the Constitution Bench in Sibbia case, (1980) 2 SCC 565 , it would not be proper to limit the life of anticipatory bail. Therefore, the clear declaration of the law by the Constitution Bench, the life of the order under Section 438, Cr.PC granting bail cannot be curtailed." 6. After taking into consideration the facts and circumstances and keeping in view that the petitioners were posted in the same police station and also keeping in view the law laid down by the Hon'ble Apex Court in the matter of Siddharani's case (supra), and also keeping in view the facts of the case in hand this Court is of the view that case of grant of anticipatory bail is made out. 7. Considering nature of the allegation and the evidence collected in the case-diary, the application is allowed. This Court is of the view that it would not be proper to limit the life of anticipatory bail. In view of this petitioners are directed to join investigation and co-operate investing agency. In the event of arrest, petitioners shall be released on bail upon their furnishing Personal Bond in the sum of Rs. 25,000/- each with one surety by each in the like amount to the satisfaction of the Arresting Officer for their appearances as and when directed. C.c. as per rules.