Criminal Misc. No. M-23298 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M-23298 of 2009 Date of Decision:03.09.2009 Sanjay Parmar .....Petitioner Vs. State of Punjab and another .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. R.S. Cheema, Senior Advocate with Mr. K.S. Nalwa, Advocate for the petitioner. Mr. T.S. Salana, Deputy Advocate General, Punjab. **** HARBANS LAL, J. This petition has been moved by Sanjay Parmar under Section 438 of the Code of Criminal Procedure seeking his anticipatory bail or for issuance of five days' notice in case any FIR is registered against him on the basis of complaint dated 16.6.2009 (Annexure P.13) given by respondent No.2 to the Senior Superintendent of Police, Patiala seeking registration of FIR against the petitioner and others. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. R.S. Cheema, Senior Advocate appearing on behalf of the petitioner eloquently urged that on the basis of Annexure P.13, the case has not been registered as yet against the petitioner. He apprehends his arrest, in the event of registration of the F.I.R against him. He further puts that as ruled by the Apex Court in re: Savitri Aggarwal & Others v. State of Criminal Misc. No. M-23298 of 2009 -2- Maharashtra & Another, 2009(3) Recent Criminal Reports (Criminal) 792, “The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438 of Cr.P.C. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.” An identical view has been taken by the Constitution Bench of the Apex Court in re: Gurbaksh Singh Sibbia etc. v. The State of Punjab, AIR 1980 Supreme Court 1632. In view of the rule laid down in these authorities, the direction may be given to respondent No.1 that if the F.I.R is registered against the petitioner in that eventuality, the petitioner be served with a five days' advance notice before his arrest in view of the provisions of Section 160 of Cr.P.C. To tide over these submissions, the learned State Counsel argued that the letter No.526/RC+336/C/D/SP/City-I dated 29.8.2009 purportedly written by the Deputy Superintendent of Police, City-I, Patiala to Senior Superintendent of Police, Patiala would reveal that during inquiry, the petitioner has been found guilty and the matter has been referred to the District Attorney (Legal) for seeking his opinion and that being so, no case is made out for issuance of the notice asked for by the petitioner. He further pressed into service that issuance of such notice virtually amount to grant of blanket bail, which in view of Bharat Inder Singh Chahal v. State of Punjab and others, 2007(3) Recent Criminal Reports (Criminal) 977, cannot be granted. I have well considered the rival contentions. As per the report, referred to by the learned State Counsel, it has been found during inquiry that Sanjay Parmar (referring to the petitioner) in connivance with others Criminal Misc. No. M-23298 of 2009 -3- have criminally misappropriated an amount of Rs.20,00,000/- given by Aggarsain Hospital, Patiala in favour of Rotary Foundation by making misuse of the name of Bal Krishan Singla. In re: State of Maharashtra v. Mohd. Rashid and another, 2005(7) Supreme Court Cases 56, Hon'ble the Supreme Court set aside the direction of the High Court that the petitioner therein shall not be arrested in any crime except after written notice to him. In re: D.K. Ganesh Basu v. P.T. Manokaran and others, 2007(2) Recent Criminal Reports (Criminal) 161 (SC), the Hon'ble Supreme Court after considering similar direction to the investigating agency granting advance notice relying on Adri Dharan Das's case and other earlier decisions, set aside the order of the learned Single Judge of the Madras High Court. In re: Sunita Devi v. State of Bihar and another, 2005(1) Supreme Court Cases 608, the Hon'ble Supreme Court set aside the order of the High Court granting unconditional protection. In re: Bharat Inder Singh Chahal's case (supra) by relying upon the above referred decisions, the Division Bench of this Court held that “while considering the claim of pre-arrest in a petition filed under Section 438 of the Code normally/ generally blanket protection such as not to arrest the petitioner without intimation to him or give advance notice before arresting him should not be given.” It is further held that “it is made clear that we are not going into the merits of the allegations made in the complaint and it is for the investigating agency and the ultimate court to find out the truth about the allegations made. On perusal of the particulars referred to above, in the light of the principles repeatedly held by the Hon'ble Supreme Court, we are of the view that there cannot be any blanket direction for giving Criminal Misc. No. M-23298 of 2009 -4- advance notice fixing certain period in view of the facts noticed here. However, the discretion vested in a court under Section 430 of the Code of Criminal Procedure would be exercised depending on the extra-ordinary circumstances based on acceptable materials.” Adverting to the facts of the instant case, in view of the afore- referred inquiry report, I am satisfied that the petitioner has not made out a strong and special circumstances for giving direction to the respondent- State for advance notice before effecting his arrest in the case. With the above observations, this petition is disposed of. September 03, 2009 ( HARBANS LAL ) renu JUDGE