1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Thursday, the Eighth day of September Two Thousand Eleven PRESENT The Hon`ble Ms.Justice R.MALA CRL OP(MD) No.11628 of 2011 1.SMT.FATHIMA SAROJINI SURESH 2.SUJITH ROSE 3.PRAKASH 4.AJITH ROSE ... PETITIONERS/ACCUSED 1 TO 4 Vs 1.STATE REP.BY THE INSPECTOR OF POLICE DISTRICT CRIME BRANCH, NAGERCOIL, KANYAKUMARI DISTRICT. (CRIME NO.NOT KNOWN OF 2011 ) ... I RESPONDENT/COMPLAINANT 2.THE DEPUTY SUPERINTENDENT OF POLICE, DISTRICT CRIME BRANCH, KANYAKUMARI DISTRICT. NAGERCOIL. ... II RESPONDENT For Petitioner : M/S. M.SURI Advocate For Respondent : MR. A.RAMAR, Additional Public Prosecutor PETITION FOR ANTICIPATORY BAIL Under Sec. 438 Cr.P.C. ORDER : The Court Made the following order :- The petitioners/A1 to A4 apprehend arrest at the hands of the respondent police for the alleged offence punishable under Sections 465, 467,468,471 and 420 IPC., in Crime No.Not known on the file of the respondent police and hence, seek anticipatory bail. 2.The learned counsel appearing for the petitioners would submit that the petitioners apprehended for arrest on the basis of the complaint given by one Elizabeth Daniel for the alleged offences under Sections 465,467, 468,471 and 420 IPC. He would further submit that the defacto complainant has totally suppressed the real fact of civil case in OS.No.163 of 2009 and OS.No.63 of 2010 pending between the defacto complainant and the petitioner and hence, he come forward with these applications for the enlargement of anticipatory bail. https://hcservices.ecourts.gov.in/hcservices/ 2 3.The learned Additional Public Prosecutor would submit that no case is pending before the respondent against the petitioners. 4.At this juncture, the learned counsel appearing for the petitioner would submit that even though, case has not been registered against the petitioner, the petitioner is entitled for anticipatory bail and to substantiate his claim, he relied upon the decisions of the Apex Court in Gurbaksh Singh Sibbia V. State of Punjab reported in 1980 Supreme Court Cases (Crl.) 465 and prayed for the enlargement of anticipatory bail to the petitioner. 5.Considering the argument advanced by the learned counsel appearing for the petitioner as well as the decision relied upon by him, the petitioner has fairly conceded that no case has been registered against the petitioner. The learned Additional Public Prosecutor has also stated that no case has been registered against the petitioner. In such circumstances, it is appropriate to consider the decision of the Apex Court relied upon by the petitioner in Gurbaksh Singh Sibbia V. State of Punjab reported inf 1980 Supreme Court Cases (Crl.) 465 , wherein the Apex Court has held as follows: “The filing of a first information report is not a condition precedent to the exercise of power under Section 438 and the imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed. Anticipatory bail can be granted even after an F.I.R is filed, so long as the applicant has not been arrested.” Considering the abovesaid decision, it has been stated that anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested. But in the said decision, it has also been stated that the imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed for the entitlement of anticipatory bail under Section 438 Cr.P.C 6.Considering the decision of the Apex Court, even though the petitioner apprehended for the arrest on the basis of the complaint given by Elizabet Daniel, admittedly, no case has been registered against the petitioner. Further, no complaint has been produced before this Court to https://hcservices.ecourts.gov.in/hcservices/ 3 verify the allegations made against the petitioners. Since, this Court is not having any material to show as to whether he has taken active part in the commission of offence and as to whether, they are needed for interrogation before arrest and the same to be decided only after the registration of F.I.R. 7.Therefore, without perusal of the F.I.R. or complaint and any material, this Court cannot decide the matter as to whether there is any prima facie case is made out and whether the custodial interrogation of the petitioners are necessary. 8.In such circumstances, I am of the view that this is a case of purely civil in nature and civil suits are pending against the alleged defacto complainant and the petitioner herein, this is not a fit case for granting anticipatory bail and the same deserved to be dismissed. 9.Accordingly, these criminal original petition is dismissed. However, the respondents are directed not to harass the petitioners under the guise of enquiry and they are directed to follow the dictum laid down in D.K.Basu Vs. State of West Bengal reported in AIR(1997) SC 610. sd/- 08/09/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023. TO 1.THE INSPECTOR OF POLICE, DISTRICT CRIME BRANCH, NAGERCOIL, KANYAKUMARI DISTRICT. 2.THE DEPUTY SUPERINTENDENT OF POLICE, DISTRICT CRIME BRANCH, KANYAKUMARI DISTRICT, NAGERCOIL. 3.THE PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. +1. CC to M/S. M.SURI Advocate SR.No.30431 ORDER IN CRL OP(MD) No.11628 of 2011 Date :08/09/2011 TR : 12.09.2011 : 3p/5c https://hcservices.ecourts.gov.in/hcservices/