K.M.Lahiri, Actg. C.J. - (1.)This is an application under section 438 of the Code of Criminal Procedure, 1973, on behalf of one Mozibor Rahman, a School Teacher, who is wanted in connection with Nowgong P. 5. Case No. 754/85 under section 468/419/420 of the Indian Penal Code. What we find from the petition is that the accused had once approached this Court earlier, but the effort proved asortive. It has been stated in the petition that fraud was suspected in payment of Money Orders. An information was lodged, a case was registered and the police was set in motion. During the course of investigation, the police arrested one Pear Ali who, on being produced before the Magistrate at Nowgong, was released on bail on 22.7.85. Learned Counsel for the petitioner submits that the. accused is a local man and a School Teacher. His name does not appear in the ejahar and there is no fear of his absconding and/or tampering with the evidence of the case.
(2.)Of late, we find that every third petition is a petition for anticipatory bail. Those criminals or suspects who are rich enough to engage lawyers come to the High Court apply for anticipatory bail and the pressure of such application is such that it has been essentially necessary to delineate the respective scope of sections 437 and 438 of the Criminal Procedure Code. The provision of section 438 has been inserted very recently. This power has been conferred on the High Court and the Court of Sessions and on no other Court. The Law Commission in its. 41st Report dated September 24, 1969, pointed out as follows: - The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. The aforesaid suggestion made by the Law Commission was accepted by the Central Government which introduced clause 447 in the Draft Bill of the Cr. P.C. 1970. In the 48th Report (1972), the Law Commission in para 31 observed as follows: - The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission. We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised. We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the Court is satisfied that such a direction is necessary in the interest of justice. Clause 447 of the Draft Bill of 1970 was enacted with certain modifications and became section 438 of the Cr. P.C. 1973.
(3.)It is thus seen that the necessity of introduction of this provision was mainly for the purposes of in-fights or fights between influential persons with the object of maligning others and bringing cases for the sake of detaining a person for some days. As such, when an influential person is the complainant against a weak person, the provision of section 438 may be attracted. Consequently, we find that in case of political rivarly between two persons if a case is instituted against a political rival, the case may come under section 438 of the Code. However, there must be some indications that the allegations are false. If the allegations are true or are largely supported by evidence, then the question of political rivalry and influence of rich people fades away. Indeed, there may be exceptional cases in which there rimy not be any case at all against an accused person and/or there is no justification requiring to submit to the custody of the police and remaining in prison and then to apply for bail. The instances are not rare where arrest and detention may jeopardise future of a person and it appears that the case is false and/or engineered by some persons, the case may come under section 438 of the Criminal Procedure Code. But now as we do from the decisions of the Supreme Court from Baichand v. State of Madhya Pradesh to Pokar Ram v. State of Rajasthan, the provision of section 438 is an exception to the general rule. The power to grant bail has been given to the High Court and the Court of Session and to no other Court. This is an exceptional power and should be exercised only in exceptional cases and not in general cases. A petition under section 438 should not be allowed merely because the applicant is a local man. Non-local persons have equal rights under similar situation to get bail or release on P.R. Bond provided the case falls, under section 438 of the Criminal Procedure Code. What we cull from the various decisions of the Supreme Court is that the consideration governing exercise of discretion for granting anticipatory bail under section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the Higher Court and the bail is sought during the pendency of the appeal. These situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from such other and the relevant considerations on which the courts would exercise its discretion, one way or the other, are substantially different from each other. The decision of the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab, clearly lays down that
(1) the distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest is therefore effective at the very moment of arrest. (2) Unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. (3) A direction under section 438 is intended to confer conditional immunity from the touch as envisaged by section 46(1) or confinement. (4) In regard to anticipatory bail, if the proposed accusation appears to stem not from motives, of furthering the ends of justice but from some ultertor motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on pre-arrest bail in the event of his arrest would generally be made. (5) It cannot be laid down as an inexerciseable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides. (6) The anticipatory bail may be granted if there is no fear that the applicant will abscond. (7) Some of the relevant considerations which govern the discretion, noticed therein are the nature and seriousness of the proposed charges.

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