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CASE NO.: Appeal (crl.)  1250 of 2003

PETITIONER: Bharat Chaudhary & Anr.                          

RESPONDENT: State of Bihar & Anr.                                    

DATE OF JUDGMENT: 08/10/2003

BENCH: N.Santosh Hegde & B.P. Singh.

JUDGMENT: J U D G M E N T

(Arising out of SLP(Crl.)No.2243 of 2003)

SANTOSH HEGDE,J.

        Heard learned counsel for the parties.          Leave granted.

Appellants in this case are husband and wife and were  accused by their daughter-in-law of offences punishable  under Sections 504, 498A and 406 of the Indian Penal Code  and Sections 3 / 4 of the Dowry Prohibition Act.  Their  application, filed under Section 438 of the Crl. P.C. for grant  of anticipatory bail has been rejected by the High Court of  Judicature at Patna.  The said order is under challenge in this  Appeal.  When this matter came up for preliminary hearing  of 19th May, 2003, we issued notice to the respondents and  also made an interim order not to arrest the appellants in the  meantime.  Today after hearing the parties on facts, we are  inclined to grant anticipatory bail to the appellants.  Shri B.B. Singh, learned counsel appearing for the  respondent-State, however, raised a legal objection. His  contention was that since the Court of first instance has taken  cognizance of the offence in question, Section 438  of   the  Crl. P.C. cannot be used for granting anticipatory bail even  by this Court and the only remedy available to the appellants  is to approach the trial court and surrender, thereafter apply  for regular bail under section 439 of the Crl. P.C.  In support  of this contention the learned counsel relied on the judgment  of this Court in the case of Salauddin Abdulsamad Shaikh vs.  State of Maharashtra (1996 (1) SCC 667).

             If the arguments of the learned counsel for the  respondent - State is to be accepted then in each and every  case, where a complaint is made of an non-bailable offence  and cognizance is taken by the competent court then every  court under the Code including this court would be denuded   of its power to grant anticipatory bail under Section 438 of  the Cr. P.C.  We do not think that was the intention of the legislature  when it incorporated Section 438 in the Crl.P.C.  which reads  thus :                         "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

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High Court or the Court of Session for  direction under this section; and that  Court may, if it thinks fit, direct that in  the event of such arrest he shall be  released on bail."

        From the perusal of this part of Section 438 of the Crl.  P.C., we find no restriction in regard to exercise of this power  in a suitable case either by the Court of Sessions, High Court  or this Court even when cognizance is taken or charge sheet  is filed.  The object of Section 438 is to prevent undue  harassment of the accused persons by pre-trial arrest and  detention.  The fact, that a Court has either taken cognizance  of the complaint or the investigating agency has filed a  chargesheet, would not by itself, in our opinion, prevent the  concerned courts from granting anticipatory bail in  appropriate cases.  The gravity of the offence is an important  factor to be taken into consideration while granting such  anticipatory bail so also the need for custodial interrogation,  but these are only factors that must be borne in mind by the  concerned courts while entertaining a petition for grant of  anticipatory bail and the fact of taking cognizance or filing of  charge sheet cannot by themselves be construed as a  prohibition against the grant of anticipatory bail.  In our  opinion, the courts i.e. the Court of Sessions, High Court or  this Court has the necessary power vested in them to grant  anticipatory bail in non-bailable offences under Section 438  of the Crl. P.C. even when cognizance is taken or charge  sheet is filed provided the facts of the case require the Court  to do so.         The learned counsel, as stated above, has relied on the  judgement of this Court referred to herein above. In that case  i.e. namely Salauddin Abdulsamad Shaikh , a three-Judge  Bench of this Court stated thus :                         "When the Court of Session or the  High Court is granting anticipatory bail, it  is granted at a stage when the investigation  is incomplete and, therefore, it is not  informed about the nature of evidence  against the alleged offender.  It is,  therefore, necessary that such anticipatory  bail orders should be of a limited duration  only and ordinarily on the expiry of that  duration or extended  duration, the court  granting anticipatory bail should leave it to  the regular court to deal with the matter on  an appreciation of evidence placed before  it after the investigation has made progress  or the charge sheet is submitted.                  Ordinarily the court granting  anticipatory bail should not substitute itself  for the original court which is expected to  deal with the offence.  It is that court  which has then to consider whether, having  regard to the material placed before it, the  accused person is entitled to bail."

       From a careful reading of the said judgment we do not  find any restriction or absolute bar on the concerned Court  granting anticipatory bail even  in cases where either  cognizance has been taken or a chagesheet has been filed.   This judgment only lays down a guideline that while  considering the prima facie case against an accused the  factum of cognizance having been taken and the laying of

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chargesheet would be of some assistance for coming to the  conclusion whether the claimant for an anticipatory bail is  entitled  for such bail or not. This is clear from the following  observations of the Court in the above case:  "It is, therefore, necessary that such  anticipatory bail orders should be of  limited  duration only and ordinarily on the  expiry of the duration or extended  duration, Court, granting anticipatory bail,  should leave it to the regular court to deal  with the matter on an appreciation of  evidence placed before it after the  investigation  has made progress or  chargesheet is submitted."

From the above observations, we are unable to read any  restriction on the power of the courts empowered to grant  anticipatory bail under Section 438 of the Crl. P.C.           We respectfully agree with the observations of this  Court in the said case that the duration of anticipatory bail  should be normally limited till the trial court has the  necessary  material before it to pass such orders and  it thinks  fit on the material available before it.  That is only a  restriction in regard to blanket anticipatory bail for an  unspecified period.  This judgment in our opinion does not  support the extreme argument addressed on behalf of the  learned counsel for the respondent-State that the courts  specified in Section 438 of the Crl.P.C. are denuded of their  power under the said Section where either the cognizance is  taken by the concerned court or charge sheet is filed before  the appropriate Court.  As stated above this would only  amount to defeat  the very object for which Section 438 was  introduced in the Crl.P.C. in the year 1973.   As observed above and having heard the learned  counsel for the parties, we are of the considered opinion that  the appellants in this case should be released on bail, in the  event of their being arrested, on their furnishing a self bond  each for a sum of Rs.5,000/- and a surety to the  like sum.  The appellants shall abide by the conditions enumerated in  Section 438 of the Code.