2017 (9) TMI 2003 - HC - Indian Laws

Grant of protection during the process of moving application for Anticipatory Bail before the court - applicant fears that the drug mafia of the country from the States of Punjab and Haryana may harm her - HELD THAT - The broad purpose of Section 438 Cr.PC is that where a person accused of commission of a non bailable offence is apprehending arrest, he may be afforded an opportunity to approach a High Court or a Court of Session for an appropriate order of bail before actual arrest. The two factors which entitle a person to seek shelter under Section 438 Cr.PC that firstly he must be under a reasonable apprehension of being arrested and secondly that such reasonable apprehension of arrest must arise on accusation of having committed a non bailable offence. Both these factors also determine the court in which an application under Section 438 Cr.PC can be filed. Undoubtedly, anticipatory bail intrudes in the sphere of investigation of crime and some very compelling circumstances have to be made out for grant of anticipatory bail to the person accused of serious offences and the Court must be cautious and circumspect in exercising such power of a discretionary nature. It is significant to notice that in the application it has been stated that a lookout notice has been issued in the entire country against the applicant and on 20.09.2017, the Haryana Police included the name of the applicant along with her photograph in the list of wanted persons. The fact that the lookout notice had been issued against the applicant makes it clear that the efforts of the police force to apprehend the applicant has not yielded results - keeping in view the facts and circumstances of the case that the applicant till now has evaded arrest, discretionary relief should not be granted to the applicant. It appears that the application is not bona fide and has been filed with a view to gain time. The prayer of the counsel for the applicant that protection be granted to him so that he may approach the High Court of Punjab and Haryana, is without merit as the applicant had the liberty to avail the remedy before the competent Court. The present application stands dismissed.

Summary

Issues:
1. Jurisdiction of the court to entertain the application for transit anticipatory bail.
2. Grounds for seeking anticipatory bail based on threat to life and fear of harm from drug mafia.
3. Consideration of factors for granting anticipatory bail under Section 438 of Cr.PC.
4. Requirement of bona fide grounds for seeking anticipatory bail.
5. Evaluation of the applicant's evasion of arrest and intention behind seeking anticipatory bail.

Jurisdiction of the Court:
The applicant filed an application for transit anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973. The counsel for the applicant argued for the applicant's protection due to threats to her life from the drug mafia of Punjab and Haryana. However, the Standing Counsel for the State of NCT of Delhi contended that the court lacked jurisdiction to entertain the application as the applicant's permanent residence was in Sirsa, Haryana. Similarly, the AAG for the State of Haryana pointed out the applicant's permanent residency in Sirsa, as reflected in her passport, and argued against the application.

Grounds for Anticipatory Bail:
The applicant sought anticipatory bail based on the threat to her life and the fear of harm from the drug mafia. The applicant, a peace-loving citizen, was associated with a controversial figure and faced potential risks following demonstrations and riots in Punjab and Haryana. The applicant's counsel emphasized her lack of connection to the alleged offenses and the absence of her name in the FIRs. The applicant's plea was solely for protection to enable her to move an application for anticipatory bail before the High Court of Punjab & Haryana.

Consideration of Factors for Anticipatory Bail:
The court highlighted the purpose of Section 438 of Cr.PC, emphasizing the need for reasonable apprehension of arrest for a non-bailable offense to seek anticipatory bail. The court underscored the importance of compelling circumstances for granting anticipatory bail, especially for serious offenses. Factors such as the nature of the accusation, antecedents of the applicant, possibility of fleeing from justice, and malicious intent behind the accusation were crucial in deciding on anticipatory bail.

Requirement of Bona Fide Grounds:
Granting anticipatory bail is a matter of judicial discretion that must be exercised cautiously. The court stressed the need for genuine and bona fide grounds for seeking anticipatory bail, without manipulation or artificial creation of jurisdiction. The court must ensure that the applicant is not evading the law or using the application as a delay tactic.

Evaluation of Evasion of Arrest and Intentions:
In this case, the court noted that the applicant had evaded arrest and showed no intention to join the investigation or surrender if granted protection. The court found the application lacking in bona fides and suspected it was filed to delay proceedings. The court dismissed the application, stating that the applicant had the option to seek remedy before the competent court without the need for protection. The court's decision was based on the applicant's evasion of arrest and the apparent lack of genuine grounds for seeking anticipatory bail.

This detailed analysis of the judgment covers the issues of jurisdiction, grounds for anticipatory bail, consideration of factors, requirement of bona fide grounds, and evaluation of the applicant's actions in seeking anticipatory bail.