1989 (9) TMI 404 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the court has the power to grant anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC) if the petitioner is accused of murder.
2. Whether an order under Section 438 CrPC for anticipatory bail can be limited in point of time.
3. Whether a petition under Section 438 CrPC is maintainable before the High Court if a similar application has been made and rejected by the Court of Session.

Detailed Analysis:

1. Power to Grant Anticipatory Bail in Murder Cases:
The court examined whether it has the power to grant anticipatory bail under Section 438 CrPC when the petitioner is accused of murder. The petitioner contended that the scope of Section 438 has been fully expounded by the Supreme Court in Gurbaksh Singh v. State, where it was held that the limitations imposed on Magistrates under Section 437 CrPC could not be read into Section 438. The court agreed with this view, stating that Section 438 confers power on the High Court and the Court of Session to grant anticipatory bail without the limitations of Section 437(i). The court emphasized that the Supreme Court in Gurbaksh Singh's case ruled that the High Court and the Court of Session should be left free to exercise their judicial discretion in granting anticipatory bail. The court also noted that the decision in Kiran Devi v. State did not lay down a contrary law but was specific to the facts of that case. Therefore, the court concluded that it has the power to grant anticipatory bail even if the petitioner is accused of murder.

2. Limitation of Anticipatory Bail in Point of Time:
The court considered whether an anticipatory bail order under Section 438 CrPC can be limited in point of time. The court referred to the Supreme Court's judgment in Gurbaksh Singh's case, which stated that while it is not necessary to limit the operation of an anticipatory bail order in point of time, the court has the discretion to do so if there are reasons for it. The court highlighted that Section 438(2) CrPC allows the imposition of conditions on anticipatory bail, and this includes limiting the duration of the bail. The court reasoned that limiting anticipatory bail in point of time could balance the individual's right to personal freedom and the public interest in effective police investigation. Therefore, the court concluded that it is within its power to limit an anticipatory bail order in point of time.

3. Maintainability of Petition Before High Court After Rejection by Court of Session:
The court examined whether a petition under Section 438 CrPC is maintainable before the High Court if a similar application has been rejected by the Court of Session. The court noted that Section 438 confers concurrent jurisdiction on the High Court and the Court of Session. The court observed that while Section 397 CrPC explicitly prohibits approaching one forum after another in the context of revisional powers, no such prohibition is imposed under Section 438. The court reasoned that the absence of such a prohibition indicates that a party can approach the High Court even if a similar application has been rejected by the Court of Session. The court clarified that a party cannot approach the Court of Session after the High Court has rejected an application under Section 438. Therefore, the court concluded that a petition under Section 438 CrPC is maintainable before the High Court even if a similar application has been rejected by the Court of Session.

Conclusion:
The court allowed the petition and directed the respondents to release the petitioner on bail immediately after his arrest, subject to certain conditions. The conditions included furnishing a bond, making himself available for police interrogation, not leaving the district without permission, and applying for regular bail under Section 437 or Section 439 CrPC within two weeks of arrest. The anticipatory bail would remain in force until the application for regular bail is disposed of. The court ordered that the application for regular bail should be disposed of on its merits most expeditiously without being influenced by the grant of anticipatory bail.