1996 (11) TMI 489 - HC - Indian Laws

Summary

Issues Involved:
1. Maintainability of anticipatory bail application when only summons are issued.
2. Interpretation of Section 438 of the Code of Criminal Procedure (Cr.P.C.).
3. Legislative intent behind Section 438 Cr.P.C.
4. Judicial precedents and their influence on anticipatory bail.

Detailed Analysis:

1. Maintainability of anticipatory bail application when only summons are issued:
The primary issue before the Bench was whether an application for anticipatory bail under Section 438 Cr.P.C. is maintainable in cases where the court has issued only summons for the appearance of the accused. The learned Single Judge had previously held that such an application would not be maintainable as there would be no apprehension of arrest in such cases. However, this view was contested by referring to the Punjab & Haryana High Court's observation in Puran Singh v. Ajit Singh, which stated that the grant of bail under Section 438(1) is dependent on the merits of the case and not on whether the Magistrate has chosen to summon the accused through bailable or non-bailable warrant.

2. Interpretation of Section 438 of the Code of Criminal Procedure (Cr.P.C.):
The Bench examined the provisions of Section 438 Cr.P.C., which allows any person who has reason to believe that he may be arrested on an accusation of having committed a non-bailable offense to apply for anticipatory bail. The Bench emphasized that the power to grant anticipatory bail is of an extraordinary character and is to be exercised before arrest. The conditions precedent for granting anticipatory bail include a reasonable apprehension of arrest and an accusation of a non-bailable offense.

3. Legislative intent behind Section 438 Cr.P.C.:
The Court delved into the legislative history of Section 438 Cr.P.C., highlighting the recommendations of the Law Commission of India in its 41st Report. The Law Commission had noted the necessity for anticipatory bail to protect individuals from false accusations and political rivalry. The legislators chose not to impose any conditions on the powers of the Courts to grant anticipatory bail, leaving it to the discretion of the High Courts and Sessions Courts.

4. Judicial precedents and their influence on anticipatory bail:
The Bench referred to several judicial precedents to support its view. In Puran Singh v. Ajit Singh, the Punjab & Haryana High Court held that the issuance of a warrant by the Magistrate justifiably gives rise to an apprehension of arrest, entitling a person to apply for anticipatory bail. Similarly, the Madhya Pradesh High Court in Ramsewak v. State of M.P. and the Andhra Pradesh High Court in Smt. Sheik Khasim Bi v. The State supported the view that anticipatory bail can be granted even after the filing of a charge sheet and issuance of a warrant. The Full Bench of the Madhya Pradesh High Court in Nirbhay Singh v. State of M.P. further reinforced this interpretation.

Conclusion:
The Bench concluded that the application for anticipatory bail is maintainable even when only summons have been issued for the appearance of the accused. The Court held that the power under Section 438 Cr.P.C. is wide and not restricted by the mode of securing the appearance of the accused. The apprehension of arrest can be genuine and real even when summons are issued, as the accused can be arrested by the police or at the instance of the Court. The reference was answered accordingly, affirming the maintainability of the anticipatory bail application in such cases.