abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 157 OF 2008 Nirmal Mithalal Jain .. Applicant V/s The State of Maharashtra & Ors. .. Respondents Mr.Subhash Jha i/b Law Global for the applicant. Mr.Rajesh More, A.P.P. for the State. CORAM : D.G. KARNIK, J. DATE : 12TH FEBRUARY 2008 P.C. P.C. P.C. : 1. Heard. 2. By this application under section 438 of the Code of Criminal Procedure, the applicant seeks a blanket order of pre-arrest bail "in connection with any offence concerning sections 354, 380 and/or 411 of the Indian Penal Code by any of the respondent police stations and/or any police station within the State of Maharashtra". 3. The applicant is a jeweller by profession and is a proprietor/partner of a jewellery shop named as M/s - 2 - Magic World. The applicant apprehends wrongful harassment at the hands of Mr.B.R. Naikwadi, PSI attached to the Kothrud Police Station, Pune and his superiors. The applicant alleges that on account of a complaint made by the applicant against him, Mr.Naikwadi was taking revenge on him by slapping several false criminal cases against him. Mr.Naikwadi threatened the applicant that in the event the applicant did not withdraw the complaint made against him by the applicant he would register several false offences against him for offences punishable under section 354, 380 and/or section 411 of the I.P.C. The applicant is not aware as to in how many cases he would be involved by registering false criminal offences against him and therefore he should be granted a blanket order of pre-arrest bail in connection with any offence which may be registered against him under sections 354, 380 or 411 of the I.P.C. by any of the respondent police stations or any other police station within the State of Maharashtra. 4. In support of his allegation that the applicant is being harassed by Mr.Naikwadi, learned counsel for the applicant handed over to me a chart showing that as many as 19 criminal cases have been registered against the applicant. At least 13 cases of them are in respect of alleged offences under section 411 of the I.P.C. The chart is taken on record and marked "X" for - 3 - identification. 5. Per contra, learned A.P.P. for the State submitted that the allegations of vengeance and/or malice made against Mr.Naikwadi are baseless and as a cover to avoid arrest in various offences registered against the applicant which were being investigated. He submitted that the applicant is a habitual offender who habitually purchases stolen gold ornaments from thieves. Different FIRs are filed by several persons about house breaking and theft of gold ornaments. During the course of investigation into the said crimes, some persons including Mr.Meghraj Abdul Kalam Siddiqui, Mr.Mohammed Harun Ahmed Shaikh and Mr.Mohammed Rahebar Ahmed Ali Shaikh were arrested. During their interrogation, it was recorded that gold ornaments involved in the robbery were sold by them to the applicant. The applicant was regularly receiving the stolen property from different persons. Each purchase of stolen properties constitutes a different offence and hence the applicant has been arrested on different occasions in connection with different offences. Learned A.P.P. also submitted that some stolen ornaments were produced by the servant in the applicant’s shop and many of the ornaments were identified by the original complainants. As regards the allegation of the applicant that he was arrested sequentially in respect of different offences, that is - 4 - to say that he was arrested in the first offence and immediately after his release on bail in respect thereof, he was arrested in the second offence and so on. Learned A.P.P. submitted that since the complaints were different and the offences were different, investigation was being carried out separately by several police stations. The robberies were committed within the limits of different police stations and stolen ornaments also have been sold to the applicant on different occasions. Therefore, every time when the complicity of the applicant was discovered in a new offence, he was arrested. 6. Learned A.P.P. invited my attention to prayer clause (a) of the application which reads thus:- (a) that in the event of arrest of the Applicant in connection with any offence concerning sections 354/380 and/or any other section with the aid of section 411 of IPC by any of the respondent police stations and/or any police station within the State of Maharashtra, the applicant shall be directed to be enlarged on bail forthwith on such terms and conditions as this Hon’ble Court may deem fit and proper." Learned A.P.P. submitted that the applicant was seeking - 5 - a blanket order in respect of disclosed and undisclosed offences punishable under sections 354, 380 and 411 of the I.P.C. and such a blanket order cannot and should not be passed. In support of his submission, he relied upon a recent decision of the Supreme Court rendered in Adri Dharan Das v. State of West Bengal, reported in 2005 SCC (Cri) 933. In para 16 of the decision, the Supreme Court has observed - "16. .... A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". Such "blanket order" should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under section 438 is a device to secure the individual’s liberty, it is neither a passport - 6 - to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely." 7. Per contra, learned counsel for the applicant submitted that the decision of the Supreme Court rendered by a Division Bench (two judges) in Adri Dharan Das was contrary to the ratio of the decision of the Constitution Bench of the Supreme Court rendered in Gurubaksh Singh Sibbia v. State of Punjab, reported in (1980) 2 SCC 565 and therefore should be ignored. I am unable to agree. In para 40 of its decision in Gurubaksh Singh Sibbia, the Supreme Court has observed: "40. We have said that there is one proposition formulated by the High Court with which we are inclined to agree. That is proposition (2). We agree that a "blanket order" of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, requires the applicant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested - 7 - is genuine. That is why normally a direction should not issue under section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever"." In my view, therefore, the submission of the learned counsel for the applicant that the decision of the Supreme Court in Adri Dharan Das is contrary to the decision of the earlier Constitution Bench in Gurubaksh Singh Sibbia has to be rejected. 8. Learned counsel for the applicant then submitted that this Court in several decisions has granted orders which are in the nature of blanket orders of anticipatory bail and in the alternative this Court has passed orders that the accused shall not be arrested unless he is given 72 hours notice and therefore similar order of "not to arrest without notice of 72 hours" should be passed in the present case. In Adri Dharan Das (supra), the Supreme Court has considered the question whether the court can pass interim order of not to arrest under section 438 of Cr.P.C. is pending hearing of application for anticipatory bail and has held that such orders should not be passed. In my view, what is said about the interim order of "not to arrest" pending hearing of an application for anticipatory bail - 8 - equally applies to order to be passed after final hearing. If the applicant is not entitled to anticipatory bail, there is no question of passing an order that he shall not be arrested without notice of 72 hours or notice of any other period. Hence, the prayer that the court should pass an order of "not to arrest the applicant without 72 hours notice" has also to be rejected. 9. Learned counsel for the applicant submitted that the present case involves abuse of powers by the police. The applicant has been subjected to torture. Even the applicant’s brother, who has no connection with the crime, has been subjected to torture. The applicant’s brother has filed Criminal Writ Petition No.148 of 2008 regarding alleged violation of human rights. In the said writ petition, some interim directions have been issued by the Division Bench. It would be inappropriate to make any observation regarding the allegations of alleged violation of human rights made in the said writ petition as the same is pending before the Division Bench. Suffice it to say that it is possible that the applicant is being harassed by slapping unnecessary criminal cases and has been arrested one after the other serially. It is equally possible that the applicant, in order to prevent his arrest in respect of different offences committed by him, is making untrue allegations - 9 - against the police, It is not possible at this stage to form even a prima facie opinion as to alleged violation of human rights and alleged abuse of powers by the police. If and when the applicant is arrested, it is open to him to make an application for bail before the appropriate court and I have no doubt that the court would consider every such application on its own merits. The fact that the applicant has been released on bail in respect of most of the offences is a proof of the fact that the trial court has independently considered each application for bail of the applicant on its own merits. 10. In my view, the applicant cannot be granted a blanket order of anticipatory bail. Application is accordingly rejected. (D.G. KARNIK, J.)