On an application for a blanket order of anticipatory bail under CrPC 438 covering offences under IPC 354/380/411 and a direction of notice prior to arrest, the Single Judge examined Supreme Court precedents and rejected the prayers.
Application for blanket anticipatory bail and direction of notice before arrest rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
abs
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 157 OF 2008
Nirmal Mithalal Jain .. Applicant
V/s
The State of Maharashtra & Ors. .. Respondents
Mr.Subhash Jha i/b Law Global for the applicant.
Mr.Rajesh More, A.P.P. for the State.
CORAM : D.G. KARNIK, J.
DATE : 12TH FEBRUARY 2008
P.C. :
1. Heard.
2. By this application under section 438 of the
Code of Criminal Procedure, the applicant seeks a
blanket order of pre-arrest bail "in connection with any
offence concerning sections 354, 380 and/or 411 of the
Indian Penal Code by any of the respondent police
stations and/or any police station within the State of
Maharashtra".
3. The applicant is a jeweller by profession and is
a proprietor/partner of a jewellery shop named as M/s
- 2 -
Magic World. The applicant apprehends wrongful
harassment at the hands of Mr.B.R. Naikwadi, PSI
attached to the Kothrud Police Station, Pune and his
superiors. The applicant alleges that on account of a
complaint made by the applicant against him, Mr.Naikwadi
was taking revenge on him by slapping several false
criminal cases against him. Mr.Naikwadi threatened the
applicant that in the event the applicant did not
withdraw the complaint made against him by the applicant
he would register several false offences against him for
offences punishable under section 354, 380 and/or
section 411 of the I.P.C. The applicant is not aware as
to in how many cases he would be involved by registering
false criminal offences against him and therefore he
should be granted a blanket order of pre-arrest bail in
connection with any offence which may be registered
against him under sections 354, 380 or 411 of the I.P.C.
by any of the respondent police stations or any other
police station within the State of Maharashtra.
4. In support of his allegation that the applicant
is being harassed by Mr.Naikwadi, learned counsel for
the applicant handed over to me a chart showing that as
many as 19 criminal cases have been registered against
the applicant. At least 13 cases of them are in respect
of alleged offences under section 411 of the I.P.C. The
chart is taken on record and marked "X" for
- 3 -
identification.
5. Per contra, learned A.P.P. for the State
submitted that the allegations of vengeance and/or
malice made against Mr.Naikwadi are baseless and as a
cover to avoid arrest in various offences registered
against the applicant which were being investigated. He
submitted that the applicant is a habitual offender who
habitually purchases stolen gold ornaments from thieves.
Different FIRs are filed by several persons about house
breaking and theft of gold ornaments. During the course
of investigation into the said crimes, some persons
including Mr.Meghraj Abdul Kalam Siddiqui, Mr.Mohammed
Harun Ahmed Shaikh and Mr.Mohammed Rahebar Ahmed Ali
Shaikh were arrested. During their interrogation, it
was recorded that gold ornaments involved in the robbery
were sold by them to the applicant. The applicant was
regularly receiving the stolen property from different
persons. Each purchase of stolen properties constitutes
a different offence and hence the applicant has been
arrested on different occasions in connection with
different offences. Learned A.P.P. also submitted that
some stolen ornaments were produced by the servant in
the applicant’s shop and many of the ornaments were
identified by the original complainants. As regards the
allegation of the applicant that he was arrested
sequentially in respect of different offences, that is
- 4 -
to say that he was arrested in the first offence and
immediately after his release on bail in respect
thereof, he was arrested in the second offence and so
on. Learned A.P.P. submitted that since the complaints
were different and the offences were different,
investigation was being carried out separately by
several police stations. The robberies were committed
within the limits of different police stations and
stolen ornaments also have been sold to the applicant on
different occasions. Therefore, every time when the
complicity of the applicant was discovered in a new
offence, he was arrested.
6. Learned A.P.P. invited my attention to prayer
clause (a) of the application which reads thus:-
(a) that in the event of arrest of the
Applicant in connection with any offence
concerning sections 354/380 and/or any other
section with the aid of section 411 of IPC by
any of the respondent police stations and/or any
police station within the State of Maharashtra,
the applicant shall be directed to be enlarged
on bail forthwith on such terms and conditions
as this Hon’ble Court may deem fit and proper."
Learned A.P.P. submitted that the applicant was seeking
- 5 -
a blanket order in respect of disclosed and undisclosed
offences punishable under sections 354, 380 and 411 of
the I.P.C. and such a blanket order cannot and should
not be passed. In support of his submission, he relied
upon a recent decision of the Supreme Court rendered in
Adri Dharan Das v. State of West Bengal, reported in
2005 SCC (Cri) 933. In para 16 of the decision, the
Supreme Court has observed -
"16. .... A blanket order should not be
generally passed. It flows from the very
language of the section which requires the
applicant to show that he has reason to believe
that he may be arrested. A belief can be said
to be founded on reasonable grounds only if
there is something tangible to go by on the
basis of which it can be said that the
applicant’s apprehension that he may be arrested
is genuine. Normally a direction should not
issue to the effect that the applicant shall be
released on bail "whenever arrested for
whichever offence whatsoever". Such "blanket
order" should not be passed as it would serve as
a blanket to cover or protect any and every kind
of allegedly unlawful activity. An order under
section 438 is a device to secure the
individual’s liberty, it is neither a passport
- 6 -
to the commission of crimes nor a shield against
any and all kinds of accusations likely or
unlikely."
7. Per contra, learned counsel for the applicant
submitted that the decision of the Supreme Court
rendered by a Division Bench (two judges) in Adri Dharan
Das was contrary to the ratio of the decision of the
Constitution Bench of the Supreme Court rendered in
Gurubaksh Singh Sibbia v. State of Punjab, reported in
(1980) 2 SCC 565 and therefore should be ignored. I am
unable to agree. In para 40 of its decision in
Gurubaksh Singh Sibbia, the Supreme Court has observed:
"40. We have said that there is one
proposition formulated by the High Court with
which we are inclined to agree. That is
proposition (2). We agree that a "blanket
order" of anticipatory bail should not generally
be passed. This flows from the very language of
the section which, as discussed above, requires
the applicant to show that he has "reason to
believe" that he may be arrested. A belief can
be said to be founded on reasonable grounds only
if there is something tangible to go by on the
basis of which it can be said that the
applicant’s apprehension that he may be arrested
- 7 -
is genuine. That is why normally a direction
should not issue under section 438(1) to the
effect that the applicant shall be released on
bail "whenever arrested for whichever offence
whatsoever"."
In my view, therefore, the submission of the learned
counsel for the applicant that the decision of the
Supreme Court in Adri Dharan Das is contrary to the
decision of the earlier Constitution Bench in Gurubaksh
Singh Sibbia has to be rejected.
8. Learned counsel for the applicant then submitted
that this Court in several decisions has granted orders
which are in the nature of blanket orders of
anticipatory bail and in the alternative this Court has
passed orders that the accused shall not be arrested
unless he is given 72 hours notice and therefore similar
order of "not to arrest without notice of 72 hours"
should be passed in the present case. In Adri Dharan
Das (supra), the Supreme Court has considered the
question whether the court can pass interim order of not
to arrest under section 438 of Cr.P.C. is pending
hearing of application for anticipatory bail and has
held that such orders should not be passed. In my view,
what is said about the interim order of "not to arrest"
pending hearing of an application for anticipatory bail
- 8 -
equally applies to order to be passed after final
hearing. If the applicant is not entitled to
anticipatory bail, there is no question of passing an
order that he shall not be arrested without notice of 72
hours or notice of any other period. Hence, the prayer
that the court should pass an order of "not to arrest
the applicant without 72 hours notice" has also to be
rejected.
9. Learned counsel for the applicant submitted that
the present case involves abuse of powers by the police.
The applicant has been subjected to torture. Even the
applicant’s brother, who has no connection with the
crime, has been subjected to torture. The applicant’s
brother has filed Criminal Writ Petition No.148 of 2008
regarding alleged violation of human rights. In the
said writ petition, some interim directions have been
issued by the Division Bench. It would be inappropriate
to make any observation regarding the allegations of
alleged violation of human rights made in the said writ
petition as the same is pending before the Division
Bench. Suffice it to say that it is possible that the
applicant is being harassed by slapping unnecessary
criminal cases and has been arrested one after the other
serially. It is equally possible that the applicant, in
order to prevent his arrest in respect of different
offences committed by him, is making untrue allegations
- 9 -
against the police, It is not possible at this stage to
form even a prima facie opinion as to alleged violation
of human rights and alleged abuse of powers by the
police. If and when the applicant is arrested, it is
open to him to make an application for bail before the
appropriate court and I have no doubt that the court
would consider every such application on its own merits.
The fact that the applicant has been released on bail in
respect of most of the offences is a proof of the fact
that the trial court has independently considered each
application for bail of the applicant on its own merits.
10. In my view, the applicant cannot be granted a
blanket order of anticipatory bail. Application is
accordingly rejected.
(D.G. KARNIK, J.)
3 issues framed by the court
Whether a blanket order of anticipatory bail under section 438 CrPC can be passed in prosecution involving multiple offences.
Whether an order not to arrest without 72 hours notice can be passed under section 438 CrPC pending or after final hearing.
Whether allegations of police harassment and torture preclude the grant of blanket anticipatory bail.
Colour shows how this judgement treated each authority
Adri Dharan Das v. State of West BengalReferred¶29
Adri Dharan Das v. State of West Bengal, 2005 SCC (Cri) 933 · Who else cites this
Gurubaksh Singh Sibbia v. State of PunjabReferred¶33
Gurubaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 · Who else cites this
2 provisions across 2 enactments
Nirmal Mithalal Jain
State of Maharashtra
D.G. KARNIK
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court