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PETITIONER: STATE REP. BY THE C.B.I.

       Vs.

RESPONDENT: ANIL SHARMA

DATE OF JUDGMENT:       03/09/1997

BENCH: M. K. MUKHERJEE, K. T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      Thomas J.      Leave granted.      This appeal  is by  the central Bureau of Investigation (‘CBI’ for  shot) assailing  the pre-arrest order granted by the  High  Court  of  Himachal  Pradesh  in  favour  of  the responded  under   section  438  of  the  Code  of  Criminal Procedure.  Respondent was a former Minister of the Himachal Pradesh State  Government and  he held  the office for about three years.    Besides  that,  he  is    a  member  of  the Legislative Assembly  of that State also.  His father Sukram was Union  Minister for  Telecommunications.   CBI has  been investigating a  case against  respondent for  offence under Sections 13  of the  prevention of Corruption Act, 1998 with the allegation  that respondent approached the High Court of Himachal Pradesh  for an  order of anticipatory bail.  Over- ruing all  the objecting raised by the CBI, a learned Single Judge of  the High  Court granted  the order  Subject to the conditions that respondent shall not go aboard without prior permission of the Court, and shall surrender his passport to the CBI etc.      Accusation made  against respondent, as at present, are inter alia,  that he  had acquired  wealth to  the  tune  of Rs.16,65,000/- as  against his known sources of income which could not reach even half of that.  CBI further alleges that the assets  have been  made by the responded through illegal means and  "there is  clear-cut  evidence  pointing  to  the transfer of  assists by  Shri Sukhram  in the name his son". According to  the CBI,  respondent’s  is  a  clear  case  of corruption in high places and the order of anticipatory bail should never have been granted in such a case.      We heard Sri K.N Bhat, Additional solicitor General who argued for  the CBI  and Shri R. K. Jain senior Advocate who argued for  the respondent.   We felt the need to go through the Case-Diary  which was  made available  to us in a sealed cover.   We perused  that.    Additional  solicitor  General contended that  High Court has gone wholly wrong in existing the description  in favour  of the respondent.  According to him, considering  the  responsible  and  high  office  which respondent held  and the wide influence which he could wield

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and the  great handicap  which investigating agency would be subjected to  while interrogating  under section  438 should never have been exercised in favour of the respondent.      On the  other hand  Sri R.K.  Jain, defending the order contended that  it is  not proper  for the  Supreme Court to interfere with  it as  it was  passed by  the High  Court in exercise of a discretionary power.      We find  force  in  the  submission  of  the  CBI  that custodial interrogation  is qualitatively  more  elicitation oriented than  questioning a  suspect who  is well ensconded with a  favorable order under Section 438 if the code.  In a case like  this effective  interrogation of suspected person is  of  tremendous  advantage  in  disintering  many  useful informations  and  also  materials  which  would  have  been concealed.  Succession such interrogation would elude if the suspected  person  knows  that  he  is  well  protected  and insulted  by   a  pre-arrest   bail  during   the  time   he interrogated.   Very often interrogation in such a condition would reduce  to a  mere ritual.    The  argument  that  the oustodial interrogation  is fraught  with the  danger of the person being  subjected to  third degree methods need not be countenanced, for,  such an  argument can be advanced by all accused in  all criminal  cases.   The court  has to presume that responsible Police Officers would conduct themselves in task of disintering offences would not conduct themselves as offenders.      High Court  has approached  the issue as through it was considering a prayer for granting regular bail after arrest. Learned Single  Judge of  the High Court reminded himself of the principle that it is well-settled that bail and not jail is a normal Rule and then observed thus:      "unless exception circumstances are      brought to  the     notice  of  the      Court which  may defeat  the proper      investigation and  bail to a person      who is not accused   of  an offence      punishable    with     death     or      imprisonment   for life.    In  the      present case,  no such  expansional      circumstances have  been brought to      the notice of this    Court   which      may defeat  proper investigation to      decline bail to the applicant.           The  above  observation  are  more  germans  while considering   an    application   for    post-arrest   bail. Consideration  which  should  weigh  with  the  Court  while dealing with a request for anticipatory bail need not be the same  as for an application to release on bail after arrest. At any rate learned Single Judge ought not have side-stepped the apprehension expressed by the CBI (that respondent would influences the witness) as one which can be made against all accused  person   all  cases.  The  apprehension  was  quite reasonable  when   considering  the   high  position   which respondent held  and in the nature of accusation relating to a period during which he held such office.      After bestowing  our anxious consideration, including a perusal of  the Case-Diary file, we definitely feel that the High  Court   has  mis-directed  itself  in  exercising  the discretionary  power  under  Section  438  of  the  Code  by granting a  pre-arrest bail  order to  the respondent.   We, therefore, upset  the impugned order.  The appeal is allowed accordingly.