TaxTMI 
TaxTMI 
1989 (9) TMI 404
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.... a petition under S. 438 of the Code is not maintainable before the High Court if a similar application has been made and rejected by the Court of Session ? 2. The facts of the case, in brief, are these : The petitioner made an application under S. 438 of the Code before the Sessions Judge, Coorg District, seeking anticipatory bail stating that he was falsely implicated in a murder case and he was likely to be arrested by the police and subjected to harassment and humiliation. 3. The learned Sessions Judge rejected the application by order dated 28-12-1988. Thereafter, the petitioner has presented this petition under S. 438 of the Code seeking anticipatory bail and the matter was posted before Shivashankar Bhat, J. 4. As there has been a divergence of opinion in the two judgments delivered by two learned Judges of this Court on the question as to whether an anticipatory bail could be granted when the person seeking anticipatory bail is alleged to have committed an offence of murder, Shivashankar Bhat, J. has referred the matter to a Division Bench under S. 9 of the Karnataka High Court Act, 1961. 5. The first judgment is in the case of R. L. Jalappa v. Delhi Police Esta....
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.... previously convicted on two or more occasions of a non-bailable and cognizable offence. 438. Direction for grant of bail to person apprehending arrest - (1) When any person has reason to believe that he may be arrested of an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including - (i) a condition that the person shall make himself available for interrogation by a police office as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India witho....
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....murder and that in any event even if the said decision can be regarded as having laid down the law to that effect, it cannot prevail over the ratio of the decision of the Constitution Bench in the case of Gurubaksh Singh. 8. In our opinion, the contention urged by the learned counsel for the petitioner is unexceptionable. In fact, the precise question, namely, as to whether the limitation imposed in S. 437(1)(i) of the Code to the effect that a Magistrate should not grant bail where there are reasonable grounds to believe that the accused is alleged to have committed any of the non-bailable offences specified therein would also control the exercise of power under S. 438 of the Code, was the subject matter for consideration by the Supreme Court in the case of Gurbaksh Singh. In the said case, the Supreme Court was considering the correctness of the view taken by a Full Bench of the Punjab High Court, to the effect that (at pp. 1131-32 of Cri LJ) : (1) the power under S. 438 of the Code is not unguided or uncanalised but all the limitation imposed in the preceding S. 437 are implicit therein and must be read into S. 438 of the Code; (2) the discretion under S. 43....
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....if there appears to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. If it was intended that the exception contained in S. 437(1) should govern the grant of relief under S. 438(1), nothing would have been easier for the legislature than to introduce into the letter section a similar provision. We have already pointed out the basic distinction between these two sections. S. 437 applies only after a person, who is alleged to have committed a non-bailable offence, is arrested or detained without warrant or appears or is brought before a court. Section 438 applies before the arrest is made and in fact, one of the pre-conditions of its application is that the person, who applies for relief under it must be able to show that he has reason to believe that "he may be arrested", which plainly means that he is not yet arrested. The nexus which this distinction bears with the grant or refusal of bail is that in cases falling under S. 437, there is some concrete data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punish....
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....trary, and if so whether the said decision prevails over the decision in the case of Gurbaksh Singh. The decision in the case of Kiran Devi, is an order made on the Special Leave petition filed against anticipatory bail granted by the Rajasthan High Court, in which the petitioner therein was alleged to have committed an offence of murder. The Supreme Court set aside the order of the High Court. The order reads : "1. Special Leave granted, Heard counsel for the parties. 2. We are of the opinion that anticipatory bail should not have been granted in the murder case when the investigation was still incomplete. The proper course to adopt was to leave it to the trial court to do the needful if and when the person concerned was arrested in the light of the record available at that point of time. The order passed by the High Court is therefore, set aside. It will be open to respondent 2 if and when he is arrested to apply for bail to the appropriate court which will decide the matter on the basis of the available records in accordance with law. We have set aside the order under appeal on principle and we are not making any observation one way or the other on the merits o....
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....Singh and no law to the contrary has been laid down in Kiran Devi's case 1988 SCC 106. We, therefore, respectfully agree with the view taken by Doddakalegowda, J. and respectfully disagree with the view taken by Navadgi, J. and answer the first question referred for our opinion as under : "In a petition presented under section 438 of the Code to the High Court or the Court of Session, the Court has the power to direct to grant of bail, even if the petitioner apprehends arrest by the Police on the allegation that he had committed an offence of murder." 12. The learned Advocate General, however, submitted that though the court has the power under section 438 of the Code to grant anticipatory bail in all cases in which the petitioner seeking anticipatory bail is likely to be arrested for a non-bailable offence including offences for which punishment of death or imprisonment for life is the punishment prescribed under the Penal Code, having regard to the facts and circumstances of the a given case, the court has the power to limit the anticipatory bail in point of time and to require the accused to seek bail either under section 437 of the Code or under section 43....
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....lease of a person after arrest subject to the condition imposed by the order of this court in an order made under section 438 of the Code, such person would be deemed to be in custody and his application under section 439 of the Code would be maintainable. He also submitted that a person presenting himself before the court under section 439 of the Code and seeking bail, should be deemed to have submitted to the custody of the court and therefore his application would be maintainable and could be considered. In support of this submission, he relied on the judgment of the Supreme Court in the case of Niranjan Singh v. Prabhakar, 1980CriLJ426 . 15. In order to appreciate the contention, it is necessary to look into the wordings of Section 438 of the Code. As can be seen from Section 438(2), extracted earlier, the discretion conferred on the court regarding imposition of conditions and restrictions while granting anticipatory bail is very wide. It provides that when the court makes a direction under section 438(1) for the release of a person on bail after he is arrested, the court may include such condition in such directions, as it thinks fit, in the light of the facts of the case ....
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....on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The court has attempted through those orders to strike a balance between the individual's right to personal freedom and the investigational rights of the police. The appellants who were refused anticipatory bail by various courts have long since been released by this Court under Section 438(1) of the Code." From the above paragraphs of the judgment, it is clear that while it is not obligatory for the High Court to limit an order of anticipatory bail in point of time, there is no prohibition in Section 438 of the Code for imposing such condition also. Therefore, the question as to whether anticipatory bail should be limited in point of time, is a matter to be considered by the Court in each case having due regard to the importance of the personal freedom of the individual and the public duty and power of the Police to investigate into an offence fully which is in public interest, which is equally important. If the court considers that anticipatory bail should be granted having due regard to the material be....
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....efore the court and makes an application under section 439 of the Code, he would be deemed to be in custody as held by the Supreme Court in the case of Niranjan Singh and his application has to be considered by the Session Court on its merits. It is more so in the case of a person who has been arrested and released pursuant to an order made under section 438 of the Code. If a person is arrested and taken to the custody of Police and released pursuant to an order made under section 438 of the Code, subject to the conditions imposed in the said order such as his making available to the police for investigation and his not moving out of a specified locality without the express permission of the officer specified, he is, and in any event, should be deemed to be, in custody for the purpose of an application under section 439 of the Code. This position is also made clear in paragraph 39 of the judgment in Gurbaksh Singh's case, in the context of Section 27 of the Evidence Act. 18. For these reasons, we answer the second question as follows : "An order under section 438 of the Code for the release of a person on bail, after his arrest, could be limited in point of ti....
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.... Court of Session, but not vice versa. In other words, if the party chooses to file an application under section 438 of the Code before the High Court and it is rejected he cannot thereafter approach the Court of Session under the same provision and on the same grounds. This position is conceded, in our opinion, rightly, by the learned counsel on both sides. For the aforesaid reasons, we find no substance in the construction of Section 438 of the Code, as suggested by the learned Advocate General. We receive support for this view from the following decisions : Mohan Lal v. Prem Chand,; Diptendu Nayak v. State of West Bengal (1989) Cri LJ 424 (Cal) (SB). For these reasons, we answer the third question as follows : "A petition under section 438 of the Code is maintainable before the High Court even if a similar application has been made and rejected by the Court of Session." 22. Now coming to the merits of the case, the brief facts of the case, as set out in the petition, are as follows : An anonymous letter was received by the Sub-Inspector of Police, Virajapet Police Station on 28-11-1988. In the letter it was stated that three Malayalis, one of whom was ....