1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B. Criminal Misc. Bail Application No. 5453/2009 Ramjilal Meena vs. State of Rajasthan Dated : 23.07.2009 HON'BLE MR. MAHESH BHAGWATI,J. Reportable Mr. Jai Raj Tantia, for the petitioner. Mr. Amit Poonia, Public Prosecutor for the State. This order governs the disposal of bail application filed under Section 438 of Cr.P.C. by Mr. Jai Raj Tantia Advocate on behalf of the applicant Ramji lal Meena pertaining to F.I.R. No. 93/2006 of police station Sapotra, District Karauli in the offences under Sections 148, 323, 325, 308 read with Section 120-B of IPC. 2. Heard the learned counsel for the petitioner as also the learned Public Prosecutor for the State and perused the material on record. 3. Learned counsel for the petitioner has canvassed that the police after completion of investigation, did not file charge sheet against the petitioner in the court. It is the court which recorded the statements of witnesses on oath and having taken the cognizance of the offences u/s 148, 308, 323 and 325 of IPC and found sufficient evidence to proceed against the petitioner, issued a warrant of arrest. The petitioner is innocent and nowhere connected with the commission of the alleged offences and thus, deserves to be granted indulgence of anticipatory bail. 2 4. Learned Public Prosecutor appearing for the State has opposed the bail petition. 5. Having considered the submissions made at the bar and carefully perused the relevant material available on record including the provisions of Section 438 of Cr.P.C., it is noticed that the provisions of Section 438 of Cr.P.C. are not applicable in the instant case. Section 438 of Cr.P.C. envisages as under: “where any person has reason to belief that he may be arrested on accusation of having committed of non-bailable offence, he may apply to the High Court or the court of Sessions for a direction under and the court should after taking into consideration, inter alia namely....” 6. The phraseology of sub-section 1 of Section 438 of Cr.P.C. tangibly suggests that any person should have a reason to believe that he could be arrested on an accusation of having committed a non-bailable offence. The legislature has knowingly and justly used the words 'any person' and thereafter 'reason to believe' and 'accusation of having committed of non-bailable offence'. These words are missing both in Sections 437 and 439 of Cr.P.C. Section 437 and 439 both envisages 'any person accused of'. Under Section 437 of Cr.P.C. both the Office in-charge of police station and the court other than the High Court or the court of Session have been conferred with the powers to release an accused of non-bailable offence on bail but under Section 439 of Cr.P.C. special powers have been conferred on High Court and the court of Session regarding bail. In both these Sections the main requirement is that the persons should be an accused of non-bailable offence whereas, Section 438 of Cr.P.C. does not 3 warrant any person to be an accused of a non- bailable offence. This is the reason for which the provisions of pre-arrest bail and post- arrest bail have been incorporated in Section 438 and Sections 437 and 439 of Cr.P.C. respectively. 7. In the instant case, the petitioner Ramji Lal is not 'any person' but happens to be an accused of non-bailable offence. The legislature has very justly used the phraseology such as 'any person' and 'an accusation of having committed a non-bailable offence' with a view to make a tangible distinction between the provisions of Section 438, 437 and 439 of Cr.P.C. For seeking pre-arrest bail under Section 438, it is for that person to set out that no case of non-bailable offence is made out against him. 8. The Hon'ble Apex Court in one case reported by Dhananjay Mahapatra, TNN in Times of India has observed that:- “The pre-arrest bail provisions in the Criminal Procedure Code, inserted to save the innocent from harassment at the hands of Police, is the most abused provision today. The Hon'ble Supreme Court's anguish stemmed from the fact that a discretionary power of the High Courts and Sessions Courts was being repeatedly invoked by persons accused of heinous offences which was not the intent of the relief giving provision.” 9. It is clear from the observation of the Hon'ble Apex Court that the provisions under Section 438 of Cr.P.C. can be invoked only when a person is innocent and there is an apprehension of his being arrest at the hands of police. 4 10. In the case of Gurubaksh Singh Sibba vs. State of Punjab (AIR 1980 S.C. 1632) the Constitution Bench of Hon'ble Apex Court has observed as under: “Apart from the fact that the very language of the statute complels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction under Section 438(1) is sought, must be clear and specific, not vague and general. It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided. A blanket order of anticipatory bail is bound to cause serious inference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits say, a murder in the presence of the public.” 11. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vaccum. 12. From the observations of the Hon'ble Apex Court, it is now well settled that the provisions of pre-arrest bail enshrined under Section 438 of Cr.P.C. can be invoked only when 5 a person is being falsely implicated with mala fides by the police. It is the reason that the pre-arrest bail provisions are sparingly used in rarest of rare cases. 13. Now adverting to the facts of the instant case, it is found that the Magistrate having recorded the statements of the witnesses on oath, found the petitioner to be an accused of non-bailable offence as there was sufficient evidence against him on record to proceed. The Magistrate after having taking the cognizance of the offences under Section 148, 323, 325, 308 read with Section 120-B of IPC and found sufficient evidence against the petitioner issued a warrant of arrest and committed the case for trial to the court of Session, which is pending today in the court of Additional Sessions Judge (Fast Track No.2), Karauli. In this case, the injured Kamal sustained three lacerated wounds on his skull and another injured Devi lal's 6th rib was found to be fractured. In the instant case, the petitioner is an accused of a non-bailable offence and after taking cognizance of non-bailable offence and seeing that there was sufficient evidence against the petitioner, the court issued a warrant of arrest against him. Not even an iota of such evidence is found on record which could suggests that the petitioner has been falsely implicated and he is innocent. Thus, to my firm view, there being a sea change in the phraseology of both the provisions under Sections 438 and 439 of Cr.P.C., the provisions of Section 438 or pre-arrest bail are not applicable in the instant case and the petitioner cannot be granted any liberty to invoke the said jurisdiction. 6 14. For these reasons, the bail petition filed on behalf of the petitioner Ramji lal Meena under Section 438 of Cr.P.C. is dismissed. (MAHESH BHAGWATI), J. Mak/- 10