Orissa High Court
Afr Soubhagya Ranjan Paikaray vs State Of Odisha on 10 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No. 12397 of 2023
An application under Section 438 of the Code of Criminal
Procedure.
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AFR Soubhagya Ranjan Paikaray ...... Petitioner
-Versus-
State of Odisha ....... Opp. Party
Advocate(s) appeared in this case :-
_______________________________________________________
For Petitioner : M/s. D.P. Dhal, Sr. Advocate
A. Ray & S.R. Pradhan
Advocates
For Opp. Party : Mr. S.K. Mishra,
Addl. Standing Counsel
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
10th November, 2022
SASHIKANTA MISHRA, J.
The petitioner is apprehending arrest in
connection with Kundanagar P.S. Case No. 341 of 2023
corresponding to Spl. G.R. Case No. 96 of 2023 pending in
the court of learned Addl. District Sessions Judge-cum-
Spl. Judge (POCSO), Kendrapara.
2. The facts of the case are that an FIR was lodged on
18.10.2023 before the IIC of Kundanagar police station in
the district of Kendrapara by a lady alleging that she was
deceived by her friend and classmate to accompany two of
her brothers to Cuttack after conclusion of the coaching
class. On the way she was given cold drinks after drinking
which she became unconscious. Upon regaining sense,
she found herself in a hotel room wherein the two so-
called brothers of her friend sexually abused her
repeatedly in the presence of her friend who facilitated the
act. As a result, the informant sustained bleeding injuries
on her private parts. Thereafter, the offenders left her near
Narendrapur and fled away. The family of the informant
rescued her whereupon she lodged the FIR.
3. In course of investigation, the accused persons,
namely, Bablu @Suryakanta Sahoo, Satya@Satyaranjan
Sahoo and one Ranjit Swain were arrested, and their
statements were recorded by the Investigating Officer.
Other steps have been taken in course of investigation.
The petitioner happens to be the owner of the hotel in
which the alleged occurrence took place, and he
apprehends arrest since the Manager of the hotel, namely,
Ranjit Swain has been taken into custody.
4. Heard Mr. D.P. Dhal, learned Senior Counsel with
Mr. A. Ray for the petitioner and Mr. S.K. Mishra, learned
Addl. Standing Counsel for the State.
5. A preliminary objection as regards maintainability of
the application under Section 438 is raised by the State
Counsel to the effect that the petitioner's apprehension of
being arrested in the case is entirely groundless and in
any case, one of the alleged offences being Section 376-DA
of IPC, the application for pre-arrest bail is hit by sub-
section (4) of Section 438 of Cr.P.C. On the other hand,
Mr. D.P. Dhal submits that the fact that the petitioner is
the owner of the hotel and that his Manager has already
been taken into custody by itself proves that his
apprehension of being arrested in the case is genuine. As
regards the bar under Section 438(4), Mr. Dhal, referring
to a single Bench decision of the High Court of Kerala, in
the case of X v. State of Kerala and others (Bail Appeal
No. 144 of 2023 decided on 20.09.2023) contends that the
bar under Section 438(4) of Cr.P.C is not absolute and the
petitioner cannot be implicated in the case for commission
of the offence under Section 376-DA of IPC.
6. From the rival contentions noted above, it is clear
that there are two aspects in the matter; firstly, whether
the apprehension of the petitioner, of being arrested in the
case, can be treated as genuine and reasonable so as to
allow him to invoke the jurisdiction of this Court under
Section 438 of Cr.P.C; and secondly, if his apprehension is
found to be reasonable, whether the bar under Section
438 (4) of Cr.P.C. would apply in the facts of the case.
7. It would be apposite to refer to the provision under
Section 438(1) of Cr.P.C. at the outset, which is quoted
herein below,
"Direction for grant of bail to person
apprehending arrest.
[(1) Where any person has reason to believe that
he may be arrested on 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 that in the event of
such arrest he shall be released on bail; and that
Court may, after taking into consideration,
interalia, the following factors, namely"
8. The expression "reason to believe" has been
interpreted by the Apex Court, in the case of Gurbaksh
Singh Sibbia and others vs. State of Punjab, reported
in (1980) 2 SCC 565. The expression as interpreted means
that the belief of arrest of the person concerned must be
founded on reasonable grounds. Mere 'fear' is not belief.
The following observations made by the Apex Court in this
regard are noteworthy:
"35. Section 438(1) of the Code lays down a
condition which has to be satisfied before
anticipatory bail can be granted. The applicant
must show that he has "reason to believe" that
he may be arrested for a non-bailable offence.
The use of the expression "reason to believe"
shows that the belief that the applicant may be
so arrested 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 a vague apprehension
that some one is going to make an accusation
against him, in pursuance of which he may be
arrested. The grounds on which the belief of the
applicant is based that he may be arrested for a
non-bailable offence, must be capable of being
examined by the court objectively, because it is
then alone that the court can determine whether
the applicant has reason to believe that he may
be so arrested. Section 438(1), therefore, cannot
be invoked on the basis of vague and general
allegations, as if to arm oneself in perpetuity
against a possible arrest. Otherwise, the number
of applications for anticipatory bail will be as
large as, at any rate, the adult populace.
Anticipatory bail is a device to secure the
individuals liberty; it is neither a passport to the
commission of crimes nor a shield against any
and all kinds of accusations, likely or unlikely."
Thus, a mere hunch or fear or speculation or
imagination cannot come within the ambit of the
expression 'reason to believe'. There has to be some
tangible grounds supporting the belief of the person
concerned that he may be taken to custody.
9. Coming to the facts of the case, reading of the FIR
does not reveal an iota of allegation as against the present
petitioner. The forwarding report submitted by the IO in
the Court below also does not contain a whisper of
allegation against the petitioner. True, one Ranjit Swain
being the Manager of the hotel in question has been
arraigned as an accused but the same does not, ipso
facto, lead to the conclusion that the owner of the hotel
will also be arraigned as an accused and be taken into
custody. In fact, had it been the intention of the
investigating agency, he would already have been
arraigned as an accused and/or arrested. All the
allegations are directed against three accused persons
along with the informant's friend who practiced deception
at the first instance. This Court therefore, finds that the
petitioner's apprehension of being arrested is not
reasonable at all nor founded on any tangible ground.
10. Since the very foundation of the application for pre-
arrest bail is found to be based on unreasonable premises,
the application itself becomes non-maintainable in the eye
of law. Thus, the question of examining the bar under
Section 438(4) in the facts of the case are rendered
entirely academic and is therefore, kept open to be
decided in an appropriate case in future.
11. In the result, the ABLAPL is held not maintainable in
the eye of law and is therefore, rejected.
...............................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 10th November, 2023 B.C. Tudu
Signature Not Verified
Digitally Signed
Signed by: BHIGAL CHANDRA TUDU
Designation: Sr. Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 11-Nov-2023 14:26:42
