S.K.Mookherjee, J. -
(1.)This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. In view of the emphatic submissions made by the learned Public Prosecutor to the effect that in cases where the allegations, ex facie, attract application of section 498A of the Indian Penal Code, the Court, as a routine, must refuse anticipatory bail, we have thought it fit to pass a detailed order, embodying reasons for our disinclination to accept the correctness of such submissions.
(2.)Before adverting to the facts of the present case, it appears to us to be necessary, to recall and understand the effect and import of the views of the Apex Court, as expressed in some of its judgments on such point, to justify our approach as we propose to take hereinafter. In the case of Gurbax Singh Sibbia v. The State of Punjab and Sarbajit Singh v. The State of Punjab, reported in AIR 1980 SC, 1632, a five Judges' Bench of the Supreme Court made, inter alia, the following observations :-
"The amplitude of judicial discretion, which is given to the High Court and the Court of Session to impose such conditions as they may think fit while granting anticipatory bail, should not be cut down by reading into the statute conditions, which are not to be found therein. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant" . . . . . . "There is no risk involved in entrusting a wide discretion to the Court of Sessions and the High Court in granting anticipatory bail because firstly these are Higher Courts manned by experienced persons, secondly their orders are not final but are open to Appellate and Revisional scrutiny and above all because discretion has always to be exercised by Courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges."
"This ends of justice will be better served by trusting this Court to act objectively and in consonance with principle governing the grant of bail which are recognized over the years, than by divesting them of their discretion, which the legislators has conferred upon them by laying down inflexible Rules of general application."
(underlining is ours)
(3.)The Court expressed its reluctance to re-write section 438 of the Code by introducing into it the restrictions imposed in the matter of grant of bail under Section 437(1) of the Code of Criminal Procedure and thus to prevent expansion of the scope and ambit of the discretion conferred on the High Court and the Court of Session and also laid down in no unmistakable term that there could be no straight jacket formula with regard to specified offences where anticipatory bail must have to be refused. The Court, while examining section 438(1), laid down that the only criterion, which makes an application maintainable under the said section, is existence of reasons to believe that the applicant may be arrested for a non-bailable offence and the reasonable belief must be on grounds, which are to or can be examined by Court objectively so that the Court may apply its own mind and decide whether the prayer for anticipatory bail ought to be allowed or rejected, notwithstanding non-filing of a First Information Report. It is pertinent to note that such applications are made at a stage when the applicant is enjoying the benefit or presumption of innocence and is yet to lose his freedom by being arrested-a situation which is strikingly dissimilar from the situation is which a person stands already arrested. The above distinction makes it all the more unjust to make a generalization and to attempt to discover formulae of universal application when facts are bound to differ from one case to the other. We cannot afford to over-look that any other approach would totally frustrate the legislative intend in conferring the discretion and may lead to undue impairment of the freedom of individual and the presumption of innocence, which so strongly holds the field since the origin of criminal jurisprudence. In this connection we feel tempted to quote further paragraph 15 of the judgment of the Supreme Court which runs as follows :-
"Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange, if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula, which will confine the power to grant anticipatory bail within a straight jacket. While laying down cast iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of then needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a 'Code for the grant of anticipatory bail', which really is the business of the legislature, it can at best furnish broad guidelines and cannot compel blind adherence. In which case to grant bail and in which to refuse it, is in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind, which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the Court, by providing that it may grant bail "if it thinks fit". The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the Courts by law."
Even the Court went on the record that an application for anticipatory bail cannot be said to deserve rejection unless the accusation was shown to be false and declined to record its agreement with the observations of another Bench of the Apex Court in the case of Balchand Jain v. The State of Madhya Pradesh (AIR 1977 S.C. 366) except to extent that the grant of anticipatory bail should be made with due care and circumspection.