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TMI Blog2021 (5) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... hat case on 14.02.2014. As she died under suspicious circumstances in her matrimonial home on 02.01.2021, the complainant registered FIR No. 07/2021 at police station Masuri, Ghaziabad Under Sections 304B and 498A, Indian Penal Code read with Sections 3 and 4 of the Dowry Prohibition Act against the Respondents Nos. 2 to 5. 5. In the second case, the allegations are that the Appellant's brother and the latter's two sons were attacked by the Respondents in that case, due to a dispute between the parties relating to encroachment of land. The two sons were attacked on their vital parts, with one of them suffering a skull fracture as a result of which he was in a coma for one week. The other had lacerations on his head. The complainant registered FIR No. 371/20 at police station Thana Bhawan, Shamli Under Sections 307, 504 and 34, Indian Penal Code. 6. The Respondents in both the cases approached the High Court Under Section 438, Code of Criminal Procedure, during ongoing investigation, and sought protection from arrest. Vide the impugned orders dated 08.02.2021 and 28.01.2021, the High Court dismissed the applications of the Respondents but granted them the aforementioned re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have been denied custodial interrogation of the Accused, notwithstanding the fact that the nature of offences in both cases is grave and heinous. 10. On the contrary, learned Counsel for the Respondents-Accused justified the discretion exercised by the High Court and submitted that the High Court has the power to pass such orders, in the interest of justice. 11. The sole question to be answered by the Court in the present appeals relates to whether the High Court, while dismissing the anticipatory bail applications of the Respondents, could have granted them protection from arrest. 12. The considerations on the basis of which the Court is to exercise its discretion to grant relief Under Section 438, Code of Criminal Procedure have been decided by this Court in a catena of judgments and needs no restatement. 13. A recent Constitution Bench judgment of this Court, in Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1 has clarified the extent of power exercisable by Courts Under Section 438, Code of Criminal Procedure. The Court ultimately held as follows: 91.1. Regarding Question 1, this Court holds that the protection granted to a person Under Section 438 Code of Crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the application that the High Court chose fit to grant some relief to the Respondents while directing them to surrender before the Trial Court to file a regular bail application within 90 days, by protecting them from any coercive action during that period. The Appellants-complainants are aggrieved by the same and are challenging the power of the Court to pass such a protective order after the dismissal of the anticipatory bail application. 17. To determine whether the Court can pass such orders, it is necessary to first analyze the relevant provision, viz., Section 438, Code of Criminal Procedure. The relevant portion of Section 438, Code of Criminal Procedure is extracted below: 438. Direction for grant of bail to person apprehending arrest (1) Where 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 the Court of Session for a direction under this Section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely: xxx either reject the application forthwith or issue an in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is no longer res integra that any interpretation of the provisions of Section 438, Code of Criminal Procedure has to take into consideration the fact that the grant or rejection of an application Under Section 438, Code of Criminal Procedure has a direct bearing on the fundamental right to life and liberty of an individual. The genesis of this jurisdiction lies in Article 21 of the Constitution, as an effective medium to protect the life and liberty of an individual. The provision therefore needs to be read liberally, and considering its beneficial nature, the Courts must not read in limitations or restrictions that the legislature have not explicitly provided for. Any ambiguity in the language must be resolved in favour of the applicant seeking relief. In this context, this Court, in the Constitution Bench decision of this Court in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, which was recently upheld and followed by this Court in Sushila Aggarwal (supra), held as follows: 26. We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Even when the Court is not inclined to grant anticipatory bail to an Accused, there may be circumstances where the High Court is of the opinion that it is necessary to protect the person apprehending arrest for some time, due to exceptional circumstances, until they surrender before the Trial Court. For example, the applicant may plead protection for some time as he/she is the primary caregiver or breadwinner of his/her family members, and needs to make arrangements for them. In such extraordinary circumstances, when a strict case for grant of anticipatory bail is not made out, and rather the investigating authority has made out a case for custodial investigation, it cannot be stated that the High Court has no power to ensure justice. It needs no mentioning, but this Court may also exercise its powers Under Article 142 of the Constitution to pass such an order. 25. However, such discretionary power cannot be exercised in an untrammeled manner. The Court must take into account the statutory scheme Under Section 438, Code of Criminal Procedure, particularly, the proviso to Section 438(1), Code of Criminal Procedure, and balance the concerns of the investigating agency, complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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