Criminal Misc. No. M-6263 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M-6263 of 2009 (O&M) Date of Decision:05.03.2009 Balwinder Singh .....Petitioner Vs. State of Punjab .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. O.P. Kamboj, Advocate for the petitioner. **** JUDGMENT HARBANS LAL, J. This petition has been moved by Balwinder Singh under Section 438 of the Code of Criminal Procedure seeking his anticipatory bail in case FIR No.25 dated 15.1.2009 registered under Sections 353/224/186/ 149 of IPC at Police Station Sadar Fazilka, District Ferozepur. The facts in brief are that on 15.1.2009, ASI Surinder Singh of Police Station Sadar Fazilka among other police officials happened to be present in a private vehicle on the turning of metalled road in the area of Village Jatwala, where he received a secret information to the effect that Sikander Singh is habitual of playing gambling (Darra Satta) and is standing on the link road outside his house and is also saying that if any person would stake at any number for one rupee and if his number comes, he will pay a sum of Rs.70/- to him. Thereafter, he along with other police officials intercepted Sikander Singh in the stated act. A ball pen, slips of Darra Satta, Card board and currency notes worth Rs.355/- were recovered from Criminal Misc. No. M-6263 of 2009 (O&M) -2- him. Meanwhile, Gurcharan Singh @ Channi and Balwinder Singh alias Giani, who were known to him earlier along with some women folk encircled them and snatched away the aforesaid articles and made Sikander Singh to flee from the spot by use of force. I have heard the learned counsel for the petitioner. The allegations attributed to the petitioner are very serious. The petitioner was got released by his acquaintances and others by using a criminal force against the police officials. Section 438 of the Code of Criminal Procedure confers extra-ordinary powers upon a High Court and a Court of Sessions to direct that in the event of his arrest, an accused shall be released on bail. This power, as is borne out from the very provisions of the said Section has to be exercised in exceptional circumstances. In re: State Represented By the C.B.I v. Anil Sharma, 1997(4) Recent Criminal Reports (Criminal) 268 (SC), it has been held as under:- “We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the Criminal Misc. No. M-6263 of 2009 (O&M) -3- person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.” To my mind, it is evident from the facts of the case that no exceptional circumstance exist to exercise the power vested in this Court under Section 438 of the Code of Criminal Procedure. The custodial interrogation of the petitioner is required to enquire as to who were those persons, who got him released from the clutches of the complainant party. A Court considering an application under Section 438 ibid must strike a balance between the rights of an accused and the duty and obligation conferred upon an investigating agency. Here in this case, the obstruction was caused by the petitioner along with others in the performance of public duty by the complainant. Such being the circumstances, I do not deem it a fit case to admit anticipatory bail to the petitioner. Hence, this application is dismissed. March 05, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No