Pankaj Lochan Sahoo v. State Of West Bengal

Sudhendu Nath Mallick, J.:-

(1) The preliminary objection taken by kazi safiulla the learned p. P. Appearing for the state against this application for anticipatory bail filed on behalf of one pankaj lochan sahoo and another is that such an application under section 438, cr. P. C. Does not lie and is not maintainable in connection with the cases instituted otherwise than on police report. The petitioners have prayed for anticipatory bail in connection with a complaint case being no. 18 of 1995 pending before the learned s. D. J. M. Contain under sections 498a/323, ipc filed by one gouri rani sahoo the wife of the petitioner no 1.

(2) It has been submitted by the learned p. P. That the order of anticipatory bail is directed against the police when a case is pending or has been started on the basis of a police report and that such direction cannot be issued section 438, cr. P. C. In a complaint case where the magistrate on receiving a complaint has proceeded under section 200 read with section 202, cr. P c. In other words. The sum and substance of the learned p. P. Ts argument is that the benefit of section 438 can be given to a person only when he is involved in a police case on the accusation of having committed a non - bailable offence. According to the learned p. - p. - , in a complaint case or in a case instituted otherwise than on police report the remedy under section 438. Cr. P. C. Cannot be given to a person although there may be an accusation of his having committed a non - bailable offence. - the learned p. - p. - has drawn our attention to sub - clauses (i) , (ii) , (iii) and (iv) of sub - section (2) and also to sub - section (3) of section 438 of the criminal procedure code to substantiate his contention.

(3) But, it is difficult to agree with the proposition of the learned p. P. That a person. Being accused of having committed a non - bailable offence in a complaint case is not entitled to a remedy under section 438, cr. P. C. The provisions of section 438. Cr. P. C. Are clear and unambiguous. - nowhere it has been stated that in cases instituted otherwise on police report section 438 has no application. - on the other hand, it has been clearly provided under section 438 (1) that when any person has reason to believe that he may be arrested on the accusation of having committed a non - bailable offence, he may apply to the high court or the court of sessions for a direction under this section; and that co court may, if it deems fit, direct that in the event of such arrest he shall be released on bail. Section 438 provides for a general remedy for a person having a reason to believe that he may be arrested on accusation of having committed a non - bailable offence. It is immaterial whether such accusation has been made in a case started by the police or during an investigation initiated by the police or the same has been made in a complaint filed before the magistrate under section 200, cr. P. C. The learned p. P. Has referred to a decision of this high court reported in 1975 cr. L. J. Page 1815 (in re: puma chandra chatterjee) , and to a decision of the supreme court reported in (polkar ram v. State of rajasthan and others). - but, none of these decisions support the above contention of the learned p. P.

(4) The learned p. P. - has also referred to section 73 of the cr. P. C. And has submitted that when the warrant of arrest is directed to be executed by any person other than police then the order passed under section 438 directing such a person to be released on bail in the event of such arrest is not enforceable because the order under section 438, cr. P. C. - envisages direction only upon the police as an arresting agency. - this contention does not throw any light to the main question whether a person accused of a nonbailable offence in a complaint case is entitled to anticipatory bail under section 438. The reference to section 73 of the cr. P. C. Does not resolve the issue. - on the other hand, section 438, cr. P. C. Envisages a direction that in the event of arrest the person accused of having committed a non - bailable offence shall be released on bail. It is immaterial who is the arresting authority.

(5) The learned advocate appearing for the petitioner has referred to the decision of the supreme court reported in (gurbaksh singh sibbia etc. V. The state of punjab) in this case, however, the point raised before us was not the point in issue before the supreme court. In this case the supreme court has held that the filing of a first information report is not a condition precedent to the exercise of the power under section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an fir is not yet filed. So, it is clear that whenever any person has reason to believe that he may be arrested on an accusation of having committed a non - bailable offence he may pray for anticipatory bail under section 438, cr. P. C. It would be going against the law to say that such a remedy is available only in a police case. - in view of the about legal position we are of the view that such an application under section 438, cr. P. C is maintainable in connection with a complaint case where there is an accusation that the petitioner has committed a non - bailable offence. In that view of the matter, we hold that the present application for anticipatory bail under section 438, cr. P. C. Is quite maintainable in law. Order accordingly.