1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2140 OF 2009 Avinash Vasudeo Inamdar .. Applicant V/s The State of Maharashtra .. Respondent Mr. M.G. Shukla with Mr. Girish Kulkarni for the applicant. Mr. K.K. Malpathak for the respondent no.1. Mr. J.P. Kharge, A.P.P. for the State. CORAM : D.G. KARNIK, J. DATE : 18TH FEBRUARY 2010 P.C. : 1. Heard. 2. By this application, the applicant, who is the original complainant, seeks cancellation of the pre-arrest bail granted to the respondent no.1 by the learned Ist Additional Principal Judge and Special Judge for Greater Bombay by an order dated 2nd March 2009. 3. Learned A.P.P. also supports the contention of the applicant and submits that the respondent no.1 is not cooperating with the 2 investigation. Taking advantage of the pre-arrest bail, the respondent no.1 is not attending the police station despite the condition imposed by the Sessions Court of attending the concerned police station thrice a week till the presentation of the charge-sheet. 4. Mr. Malpathak, learned counsel appearing for the respondent no.1, submitted that the condition of attending the concerned police station has been relaxed by the learned Sessions Judge vide order dated 6th May 2009 and therefore it was not necessary for the respondent no.1 to attend the concerned police station. He denies the allegation that the respondent no.1 is not cooperating in the investigation. 5. Among others, the ground urged for cancellation of the order dated 2nd March 2009 is that the order is of an unlimited duration. Relying upon three decisions of the Supreme Court in (i) Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR 1996 SC 1042(ii), Nirmal Jeet Kaur v. The State of Madhya Pradesh, (2004) 7 SCC 558 and (iii) Sunita Devi v. State of Bihar, AIR 2005 SC 498, learned counsel for the applicant submitted 3 that the order of pre-arrest bail should not be of an unlimited duration as has been granted in the present case. 6. In Salauddin Abdulsamad Shaikh v. State of Maharashtra (supra), the Supreme Court has observed - “Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be by-passed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular Court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry 4 of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted.” 7. The principle laid down in Salauddin’s case (supra) was reiterated by the Supreme Court in Sunita Devi v. State of Bihar (supra), wherein the Supreme Court has observed - “21. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin’s case (supra) the result would be clear bypassing of of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies upto higher Courts, the requirement of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner.” 8. In para 11 of Nirmal Jeet Kaur v. State of Madhya Pradesh (supra), the Supreme Court again followed its earlier decision in 5 the case of Salauddin (supra). 9. It is thus clear that the order of anticipatory bail should ordinarily be of a limited duration. Section 438 of the Cr. P.C. is meant for the purpose of enabling a person accused of an offence to avoid harassment and ignominy of being arrested even in cases where there is no prima facie need for his arrest. At the stage of pre-arrest bail, the Court only considers the matter prima facie without having the benefit of the entire material which should be available only after investigation. After investigation, the State may be in a position to place such material on record as would disentitle the accused for a bail. Ordinarily, therefore, the Court limits the order of anticipatory bail to a certain point of time which generally does not exceed the stage of filing of the charge- sheet or a reasonable period thereafter to enable the accused to move the court and apply for regular bail. In the present case, the order of bail is for an unlimited duration. If it is allowed to stand, it would undoubtedly prevent the State from arresting the accused even if there exist grounds for arrest. The order as it is cannot stand and is required to be modified to that extent. 6 10. As regards the grievance of the prosecution that the respondent no.1 has not been cooperating with the investigation, and the investigation is hindered on account of the respondent no.1 not being available for interrogation the relaxation for attendance granted by the Sessions Court vide order dated 6th May 2009 can be modified and in that way the investigation can progress. 8. For these reasons, I pass the following order: The order dated 2nd March 2009 by the learned Sessions Judge granting anticipatory bail for unlimited period is set aside and is substituted by the following order: ORDER (a) In the event the respondent no.1 is arrested in connection with C.R. No.98 of 2008 registered at Azad Maidan Police Station, Mumbai, he shall be released on bail on his executing a personal bond of Rs.50,000/- with one solvent surety of the like amount or cash deposit in lieu thereof. (b) The respondent no.1 shall assist in the investigation and 7 make himself available for interrogation. (c) The respondent no.1 shall attend the Azad Maidan Police Station once a week on every Wednesday from 12.00 noon to 5.00 p.m. for a period of 6 weeks and thereafter as and when specifically summoned. (d) The respondent no.1 shall inform in writing to the concerned police station his present residential address, residential as well as business telephone numbers and mobile number and shall inform any change in the residential address, telephone number or the mobile number within 48 hours of the change. (e) This order shall remain in force for a period of 2 months or till the charge-sheet is filed, whichever is earlier, whereafter the respondent no.1 may, if he so desires, apply to the court for regular bail. (D.G. KARNIK, J.)