MEENA DEVI AND OTHERS Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) This application has been disposed of on 21.2.1985 with a promise that reasoned judgment shall follow for the conclusions that I have already -recorded. After the judgment of the Supreme Court in Gurbaksh Singh Sibbia etc. v/s. The State of Punjab ( : A.I.R. 1980 SC 1632) no occasion to decide the scope of Sec. 438 of the Code of Criminal Procedure should arise. Mr. Balbhadra Prasad Singh, learned counsel for the petitioners has, however, insisted that this Court should spell out when shall it entertain application for bail in anticipation of arrest. I am doing so only to reiterate the words of the Supreme Court - -

(2.) Mr. Balbhadra Prasad Singh has rightly submitted that intention of the Supreme Court while interpreting Sec. 438 of the Code of Criminal Procedure is in the form of pronouncement as to what the law is and they say that the court, to which the application is made, "must apply its own mind to the question and decide whether a case has been made out for granting such relief". He is also right in submitting that the existence and non -existence of power and duty is a matter of law and not of fact and it has to be determined with reference to the terms of the enactment. The highest court of the land has interpreted the terms of the statute and has laid down and declared what is to be observed as the law.

(3.) In Boyd v/s. United States : : A.I.R. 1977 SC 366) and after recording agreement with the conclusion that Sec. 438 of the Code is an extraordinary remedy and should be resorted to only in special cases. Proceeding further in the said judgment (Gurbaksh Singh) (supra) the Supreme Court has said