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2017 DIGILAW 1379 (HP)

Lekh Ram v. State of Himachal Pradesh

2017-12-14

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this petition filed under Section 438 of the Code of Criminal Procedure, the petitioner has prayed for grant of bail in FIR No. 67/2016, dated 22.10.2016, registered at Police Station Darlaghat under Section 379 of the Indian Penal Code. 2. Incidentally, the FIR in which the petitioner has moved the present application for grant of bail has not been filed against the petitioner. It is an FIR in which petitioner is the complainant. On 08.12.2017, this Court had ordered the matter to be listed for today, to enable the learned counsel for the petitioner to satisfy this Court as to how a bail application under Section 438 of the Code of Criminal Procedure is maintainable at the behest of complainant himself, who has lodged the concerned FIR. Learned counsel for the petitioner has placed reliance upon the judgments of the Hon’ble Supreme Court in Balchand Jain vs. State of Madhya Pradesh, AIR 1977 SC 366 and Gurbaksh Singh Sibbia vs. The State of Punjab, AIR 1980 SC 1632 . 3. I have heard the learned counsel for the parties and have also gone through the judgments so relied upon by the learned counsel for the petitioner. 4. In my considered view, the judgments which are relied upon by the learned counsel for the petitioner do not answer the query which was raised by this Court on 08.12.2017. Undoubtedly, under the provisions of Section 438 of the Code of Criminal Procedure, any person who has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, may apply to the High Court or the Court of Session for a direction under the said Section that in the event of such arrest, he be released on bail, however, as is apparent from the language of the statutory provisions itself, invocation of the said provisions at the behest of said person can be only where such person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. This Court has repeatedly asked the learned counsel for the petitioner to state as to which is that FIR in which he has apprehension of being arrested for allegedly having committed a non-bailable offence. Learned counsel for the petitioner could not point out any FIR. This Court has repeatedly asked the learned counsel for the petitioner to state as to which is that FIR in which he has apprehension of being arrested for allegedly having committed a non-bailable offence. Learned counsel for the petitioner could not point out any FIR. His contention is that he has apprehension that he may be arrested in an FIR which has been lodged by him. 5. In my considered view, this application is completely misconceived. Provisions of Section 438 of the Code of Criminal Procedure cannot be invoked by a complainant in an FIR which has been lodged at his behest. Of course, if the contents of the FIR are found to be incorrect by the Investigating Agency, then the Investigating Agency is not barred from initiating appropriate action against the said complainant, but then obviously process has to be set into motion and once that process has been set into motion, whatever rights are available to the complainant therein, can be availed of by him. That stage admittedly has not come as yet, as was intimated by the learned Deputy Advocate General. 6. Therefore, in view of above, as this Court is of the considered view that application under Section 438 of the Criminal Procedure Code is not maintainable at the behest of the complainant, who has lodged the FIR himself, the present petition is dismissed, as misconceived.