Whether application for Anticipatory Bail is tenable even if fir is not registered?

CALCUTTA HIGH COURT

C.R.M. 8216 of 2017 In the matter of: An application for anticipatory bail Under Section 438of the Code of Criminal Procedure, 1973.

In the matter of:

Siraj Roy ….Petitioner

Mr. Milan Kumar Mukherjee, Ms. Ruby Mukherjee ….for the petitioner.

Mr. P. K. Dutta, Ld. Addl. PP Mr. Subrata Roy ….. for the State.

Mr. Sandipan Ganguly Mr. Saryati Dutta …..for the de facto complainant.

Apprehending arrest in connection with Amherst Street Police Station FIR No. 343 of 2016 dated 25.10.2016 under sections 506/509/114 of the Indian Penal Code (hereafter the IPC), with added Section 376 of the IPC, the petitioner has approached this Court for a pre-arrest direction of bail under Section 438 of the Code of Criminal Procedure (hereafter the Cr. P.C.).

The case of the prosecution in brief is that the aforesaid FIR was registered on the basis of an information given by the defacto complainant to the effect that the accused persons being aided and abetted by one another used abusive language towards the defacto complainant and thereby they have interfered with her modesty. Moreover, the petitioner including the other accused persons have also threatened the defacto complainant with dire consequences.

In course of investigation, the defacto complainant was produced before the learned magistrate and her statement was recorded under Section 164 of the Cr.P.C. In the meantime, all the accused persons surrendered before the learned Court below and they have been granted bail till 28th November, 2017.

During investigation, the investigating officer submitted a prayer for adding Section 376 of the IPC against Siraj Roy. Pursuant thereto, Section 376 of the IPC was added against the petitioner and his bail was cancelled. The learned magistrate issued warrant of arrest against the petitioner.

Challenging the said order of the learned magistrate, the criminal revisional jurisdiction of this Court was invoked by filing CRR 1255 of 2017. A learned Judge of this Court was pleased to reject the said application holding inter-alia that the learned magistrate was perfectly justified in cancelling the bail of the petitioner and as follow up action, by issuing warrant of arrest against the him. While passing such order, the learned Judge granted liberty to the petitioner to surrender before the Court of the learned Magistrate and pray for regular bail in accordance with law, if so advised.

In this backdrop of facts and circumstances, the petitioner has filed this application.

Mr. Sandipan Ganguly, learned senior advocate appearing on behalf of the defacto complainant has raised the question of maintainability of the application on the ground that the petitioner did not comply with the direction given by the learned Judge in CRR 1255 of 2017 and that the petitioner cannot pray for anticipatory bail since His Lordship specifically directed the petitioner to surrender before the Court of the learned Magistrate. He further contended that the scope of prayer for bail under Section 438 of the Cr.P.C. may be restricted, which would be evident from the decision reported in (2012) 8 SCC 730 (Lavesh Vs. State). He vehemently contended that the learned Judge has virtually restricted the scope of taking recourse to the provision of Section 438 of the Cr.P.C. in view of the specific direction for surrender before the Court of the learned Magistrate.

Mr. Milan Kumar Mukherjee, learned senior advocate appearing on behalf of the petitioner contended that the question of maintainability in the similar fact situation was dealt with by a coordinate Bench of this Court in C.R.M. 11409 of 2015 (Sayantan Chatterjee v. State) wherein Their Lordships held that despite direction by the Single Bench to surrender before the Court of the learned Magistrate, the prayer for anticipatory bail is maintainable. He has further relied on the decisions reported in AIR 1980 SC 1632 (Shri Gurbaksh Singh Sibbia and Ors. Vs. State of Punjab), (2011) 1 SCC (Cri) 514 (Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others) and (2016) 1 SCC 152 (Bhadresh Bipinbhai Sheth Vs. State of Gujarat and another) in support of his contention. He candidly contended that the Hon’ble Apex Court has specifically observed in Siddharam Satlingappa Mhetre (supra) that the Hon’ble Court cannot even give direction for surrender in the Court below even after granting of anticipatory bail since such order amounts to interference with the liberty of the citizen. Also, in the similar fact situation the Hon’ble Supreme Court, in Bhadresh Bipinbhai Sheth (supra) has granted anticipatory bail setting aside the order of the High Court. In the premises set forth above, he submitted that no such direction can be given for surrender in the Court below even after grant of anticipatory bail, far to speak of rejection of such prayer for anticipatory bail.

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A Constitution Bench of the Hon’ble Supreme Court dealt with Section 438 of the Cr.P.C. in Shri Gurbaksh Singh Sibbia (supra) and has enunciated the principle of law of anticipatory bail in paragraphs 40 to 44, which may be set out hereunder:-

“40. 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 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 someone 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 H 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.

41. Secondly, if an application for anticipatory bail 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.

42. Thirdly, the filling 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 F.I.R. is not yet filed.

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43. Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested.

44. 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 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 aforesaid decision is an authority for the proposition that even filing of an FIR is not a condition precedent to the exercise of power under Section 438 of the Cr.P.C. The imminence of likely arrest founded on a reasonable belief can be shown to exist, even if an F.I.R. is not yet filed.

Admittedly, a warrant of arrest has been issued against the petitioner and, therefore, the petitioner has reasonable apprehension that he may be arrested by the police in terms of the warrant of arrest issued by the learned magistrate. In view of the ratio in Shri Gurbaksh Singh Sibbia (Supra), the petitioner is thus entitled to apply for anticipatory bail under Section 438of the Cr.P.C.

In Siddharam Satlingappa Mhetre (supra), it has been observed by the Apex Court in paragraphs 112 and 113 as follows:

“112. The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail. This is contrary to the basic intention and spirit of Section 438 Code of Criminal Procedure. It is also contrary to Article 21 of the Constitution. The test of fairness and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty.

113. It is a settled legal position crystallized by the Constitution Bench of this Court in Sibbia’s case (supra) that the courts should not impose restrictions on the ambit and scope of Section 438 Code of Criminal Procedure which are not envisaged by the Legislature. The Court cannot rewrite the provision of the statute in the garb of interpreting it.”

Moreover, in the decision reported in (2003) 2 SCC 649 (M. C. Abraham and Anr. Vs. State of Maharashtra and Ors.) it has been observed that even rejection of anticipatory bail does not give the jurisdiction to the Court to direct the petitioner to surrender in the Court below. The last portion of paragraph 15 may be quoted from the said decision for proper appreciation:

“The mere fact that the bail applications of some of the appellants had been rejected is no ground for directing their immediate arrest. In the very nature of things, a person may move the Court on mere apprehension that he may be arrested. The Court may or may not grant anticipatory bail depending upon the facts and circumstances of the case and the material placed before the Court. There may, however, be cases where the application for grant of anticipatory bail may be rejected and ultimately, after investigation, the said person may not be put up for trial as no material is disclosed against him in the course of investigation. The High Court proceeded on the assumption that since petitions for anticipatory bail had been rejected, there was no option open for the State but to arrest those persons. This assumption, to our mind, is erroneous. A person whose petition for grant of anticipatory bail has been rejected may or may not be arrested by the investigating officer depending upon the facts and circumstances of the case, nature of the offence, the background of the accused, the facts disclosed in the course of investigation and other relevant considerations.”

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It is therefore clear from the aforesaid decisions that the instant application is maintainable in law and we cannot subscribe to the views expressed by Mr. Ganguly in respect of the maintainability of the application under Section 438 of the Cr.P.C. The objection is overruled.

We now proceed to decide the application on merits.

Mr. Mukherjee appearing on behalf of the petitioner contended that he has been falsely implicated in connection with this case and long after registration of the FIR a case under Section 376 of the IPC has been made out by the defacto complainant only to feed fat her grudge against the petitioner and to keep him behind the bar.

Mr. Dutta, learned Additional Public Prosecutor appearing on behalf of the State raised objection to the prayer for anticipatory bail on the ground that the defacto complainant has stated in the statement recorded under Section 164 of the Cr.P.C. that she was subjected to sexual assault by the petitioner.

We have carefully gone through the materials collected in course of the investigation. The case under reference was started on 25th October, 2016 with the allegations that on 22nd October, 2016 the accused persons insulted the defacto complainant with abusive languages and thereafter the accused persons surrendered before the learned magistrate and they were accordingly granted bail. The statement of the defacto complainant was recorded under Section 164 of the Cr.P.C. on 27th November, 2016 and thereafter the investigating officer prayed for adding Section 376 of the IPC. On careful scrutiny of such statement of the defacto complainant, the question of consent cannot be ruled out. Moreover, the principal dispute between the parties revolves round taking of loan and non-payment of such loan amount etc.In the context of the given facts and circumstances of this case, we are of considered view that custodial interrogation of the present petitioner is not required for effective and meaningful investigation of this case. Thus, we direct that in the event of arrest the petitioner may be released on bail with two sureties of Rs.10,000/- each on condition that the petitioner shall not enter the jurisdiction of Amherst Street Police Station for the coming six months or till date of filing of the report in final form under Section 173(2) of the Cr.P.C., whichever is earlier, and on conditions as stipulated under Section 438(2) of the Cr.P.C.

The prayer for anticipatory bail is allowed and the application, accordingly, stands disposed of.

Urgent photostat copy of this order be supplied to the parties, if applied for, upon compliance with all requisite formalities.

(Debi Prosad Dey, J.) (Dipankar Datta, J.)

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