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TMI Blog1985 (4) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 148, 379 and 327 of the Indian Penal Code. When the hospital authority sent the message that Bhawaria, the victim of assault, who was admitted in the hospital for treatment has succumbed to his injuries, the investigating Officer also added an offence under Section 302 IPC. Soon thereafter on September 29, 1983, the second respondent Chandan Singh s/o Shri Ranjit Singh ('respondent' for short) appeared before the learned Sessions Judge, Jodhpur and moved an application under Section 438, Cr.P.C. for granting him anticipatory bail. The public prosecutor appearing for the State opposed the application for grant of anticipatory bail. The learned Judge by his order dated September 30, 1983 accepted the application and granted anticipatory bail to the respondent observing that the dispute is with regard to the right to cultivate a certain field from which when deceased Bhanwaria was coming out, the respondent fired at him and caused the injuries which proved fatal. The learned Judge further observed that keeping in View some decisions referred to by him, he was of the opinion that the application (or anticipatory bail should be granted. The learned Judge then orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three become relevant in the present situation. 6. The decision of the Constitution Bench in Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab 1980CriLJ1125 clearly lays down that the distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the farmer is granted after arrest and there fore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.' Unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if in person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall released on bail. A direction under Section 438 is intended to confer conditional immunity from the touch as envisaged by Section 46(1) or confinement. In para 31, Chandrachud, CJ clearly demarcated the distinction between the relevant considerations while examining an application for anticipatory bail and an application for bail after arrest in the course of investigation. Says the 'earned Chief justice that 'in regard to anticipatory bail, if the proposed accusation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commit murder. The first information report thus discloses use of lire arm with which the respondent attempted to commit murder of Bhanwaria. Surprisingly, the Investigating Officer had not arrested him till September 29, 1983 when he moved an application for anticipatory bail under Section 438 of the CrPC presumably after coming to know that injured Bhanwaria has succumbed to his injuries and the offence would one of murder punishable under Section 302 IPC. This conduct of the Investigating Officer left us guessing. Some light is shed by some averments from the affidavit filed in the High Court and extracted by the learned Judge in his judgment. It is stated that the respondent is the Sarpanch of Vil. Danwara and is an influential person and that his father Ranjit Singh is ex-M.L.A. and is at present Pradhan of the Panchayat Samiti. Are these relevant considerations for not cancelling anticipatory bail when it appears to have been granted by a clear misconception of the relevant considerations governing of anticipatory bail? The answer is emphatically in the negative in view of the extracted observations from the decision of the Constitution Bench in Gurbaksh Singh Sibbia's c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this case? Unquestionably, no case was made out for grating anticipatory bail in this case. Let it be made distinctly clear that status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail. Anticipatory bail to some extent intrudes is the sphere of investigation of crime and the court must be cautious and circumspect in exercising such power of a discretionary nature. Tins case amply illustrates that the power was exercised sub silentio as to reason or on irrelevant or consideration not germane to the determination. This Court, to avoid miscarriage of justice, must interfere. 12. The High Court referred to two decisions of the Rajasthan High Court on the question of locus standi of the present appellant but once that was conceded and not questioned before us, we need not refer to them. The learned Judge that referred to the decision in Gurbax Singh Sibha's case, but failed to take note of the relevant observations which we have extracted hereinbefore Reference to the decision in Gurcharn Singh and Ors. v. State (Delhi Administration) [1973] 2 SCR 358 by the High Court is hardly apposite because the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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