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Sunday, March 28, 2010

Bail--An interim order restraining arrest if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation which cannot at any rate be done under Section 438 of Code

Haryana Rajya Sainik Board… v. Mohan Lal
2009(1) LAW HERALD (P&H) 210 (SC)
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice Dr. Arijit Pasayat
The Hon’ble Mr. Justice C.K. Thakker
Criminal Appeal No. 1716 of 2008
Parvinderjit Singh
v.
State (U.T. Chandigarh)
{Decided on 03/11/2008}
IMPORTANT POINT
Bail--An interim order restraining arrest if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation which cannot at any rate be done under Section 438 of Code.
(A) Criminal Law--Embezzlement of amount--Anticipatory bail--Prosecution alleged that an amount of Rs. 1.10 crores has been withdrawn from saving account and shares of worth Rs. 1.60 crores have been fraudulently withdrawn from saving/demat account of complainant--Accused contended that allegation are civil in nature and entire case hings on documentary evidence which cannot be tempered--Accused are responsible officers and are willing to assist the investigation--Appellants not to be arrested subject to the condition that they will join investigation--|Penal Code, 1860, Section 406, 420 and 120-B--Criminal Procedure Code, 1973, Section 438. (Para 4, 19)
(B) Criminal Law--Bail--Anticipatory bail--Interim Bail--Legality of the proposed arrest cannot be gone into in an application under Section 438 of Code--An interim order restraining arrest if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation which cannot at any rate be done under Section 438 of Code--|Criminal Procedure Code, 1973, Section 438. (Para 17)
(C) Criminal Law--Bail--Anticipatory Bail--Normally a direction should not be issued to the effect that the applicant shall be released on bail "whenever arrest 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 unlawful activity--|Criminal Procedure Code, 1973, Section 438. (Para 15)
(D) Criminal Law--Bail--Anticipatory Bail--Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail--The applicant must show that he has `reason to believe' that he may be arrested in a non-bailable offence--It must be founded on reasonable grounds--Mere "fear" is not `belief' for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested--Criminal Procedure Code, 1973, Section 438. (Para 15)
(E) Criminal Law--Bail--An order under Section 438 is a device to secure the individual's liberty' it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely--Constitution of India, 1950, Article 21--Criminal Procedure Code, 1973, Section 438. (Para 15)
(F) Criminal Law--Arrest--Object of--Ordinarily, arrest is a part of the process of investigation intended to secure several purposes--The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime--There may be circumstances in which the accused may provide information leading to discovery of material facts--It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his dis-appearance to maintain law and order in the locality--For these or other reasons, arrest may become inevitable part of the process of investigation--The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code--Criminal Procedure Code, 1973, Section 41 and 438. (Para 17)
(G) Criminal Law--Bail--Anticipatory bail--Court ordinarily will not interfere with the investigation of a crime or with the arrest of a accused in a cognizable offence--An interim order restraining arrest, if passed while dealing with an application under Section 438 of Code will amount to interference in investigation which cannot, at any rate, be done under Section 438 of Code--|Criminal Procedure Code, 1973, Section 154-157, 173 and 438. (Para 17)
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