2019 (12) TMI 241 - HC - Money Laundering

Issuance of notice prior to arrest - Grant of anticipatory Bail on certain terms - while disposing of the application for anticipatory bail has passed the direction that the petitioner agency shall serve three working days notice, on proposing to arrest the petitioner in this case - whether the Court has power to direct the Investigating Agency to issue notice prior to arrest? HELD THAT - The terms arrest is neither defined in the Code of Criminal Procedure, 1973 nor in the Indian Penal Code, 1960 nor there is any enactment dealing with offences demanding arrest. The word arrest is derived from a French word ARRATER . It means to stop, to restrain a person. Arrest is thus restraining of a person, obliging him to be obedient to law. Anticipatory bail being an extraordinary remedy available in special cases, this power has been conferred on the higher echelons of judicial service, namely, the Court of Sessions or the High Court. Keeping in view the reports of the Law Commission, Section 438 was inserted in the present Code. Sub-section (1) of Section 438 enacts that 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 High Court or to the Court of Session for a direction that in the event of his arrest he shall be released on bail, and the Court may, if it thinks fit, direct that in the event of such arrest he shall be released on bail - Sub Section (2) of 438 lays down that when the High Court or the Court of Sessions makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit. Sub Section (3) of 438 lays down that if such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1). The ratio of judgment of the Hon ble Supreme Court in the case of PN Aggarwal 2008 (10) TMI 1 - SUPREME COURT that the Court has power to grant or not to grant anticipatory bail. But the court has no power to direct the IO to issue notice prior to arrest. The impugned order dated 13.04.2017 passed by the ASJ is hereby set aside - Petition allowed.

Summary

Issues Involved:
1. Validity of the order directing the Investigating Agency to issue notice prior to arrest.
2. Scope and limitations of anticipatory bail under Section 438 of the Cr.P.C.

Issue-wise Detailed Analysis:

1. Validity of the order directing the Investigating Agency to issue notice prior to arrest:

The petitioner sought to set aside the order dated 13.04.2017 passed by the Addl. Sessions Judge, which directed the petitioner agency to serve three working days' notice before arresting the respondent. The petitioner argued that such directions are contrary to settled law, referencing the Supreme Court's judgment in Union of India vs. Padam Narain Aggarwal (2008) 13 SCC 305. The Supreme Court in that case held that such directions are not legal, valid, or in consonance with law, as they obstruct the statutory power of arrest by imposing conditions not warranted by law. The petitioner further cited the Supreme Court's consistent stance, including in State of Telangana vs. Habib Abdulla Jeelani (2017) 2 SCC 779, reiterating that courts cannot pass orders amounting to anticipatory bail contrary to Section 438 Cr.P.C. The respondent, on the other hand, argued that the notice was necessary due to alleged manhandling and coercion by the Investigating Officer. The court concluded that the issue of directing the Investigating Agency to issue notice prior to arrest is settled and such directions are beyond the court's power, thus setting aside the impugned order.

2. Scope and limitations of anticipatory bail under Section 438 of the Cr.P.C.:

The judgment elaborated on the legal framework and historical context of anticipatory bail under Section 438 Cr.P.C. It highlighted that anticipatory bail is an extraordinary remedy available in special cases, intended to protect individuals from false accusations and undue harassment. The court emphasized that the power to grant anticipatory bail is conferred on higher judicial authorities, such as the Court of Sessions and the High Court, and must be exercised with caution. The judgment cited the Law Commission's recommendations and the legislative intent behind Section 438, underscoring that courts must adhere strictly to the provisions and cannot impose conditions not specified in the statute. The court reiterated that the power under Section 438 is limited to granting or rejecting anticipatory bail, and does not extend to directing the Investigating Officer to issue prior notice of arrest.

Conclusion:

The court concluded that the Addl. Sessions Judge's order directing the petitioner agency to issue notice prior to arrest was beyond the court's power and contrary to established legal principles. The impugned order was set aside, with liberty granted to the respondent to seek legal recourse if necessary. The petition was allowed and disposed of, along with any pending applications.