Gurjant Singh vs State Of Punjab
2024 Latest Caselaw 7131 P&H

Punjab-Haryana High Court

Gurjant Singh vs State Of Punjab on 4 April, 2024

Author: Sandeep Moudgil

Bench: Sandeep Moudgil

                                        Neutral Citation No:=2024:PHHC:045331


CRM-M-16354-2024                                                                -1-


109                                                        2024:PHHC:045331

             IN THE HIGH COURT OF PUNJAB AND HARYANA
                          AT CHANDIGARH

                                        CRM-M-16354-2024
                                        DECIDED ON: 04.04.2024

GURJANT SINGH
                                                           .....PETITIONER

                                      VERSUS

STATE OF PUNJAB
                                                           .....RESPONDENT

CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL

Present:     Mr. P.S. Dhaliwal, Advocate
             for the petitioner.

SANDEEP MOUDGIL, J (ORAL)

1. The jurisdiction of this Court has been invoked for the 2nd time under

Section 438 Cr.P.C., seeking anticipatory bail to the petitioner in FIR No.11, dated

10.02.2024, under Sections 18, 29 of NDPS Act, 1985, registered at Police Station

Chhajali, District Sangrur.

2. Learned counsel for the petitioner though candidly admits that this

petition is not maintainable, once he was questioned with the maintainability of the

same. He however, asserts that he only wants an order on merits so that he could

approach the Hon'ble Supreme Court for the said relief.

3. From the perusal of record, it is an admitted fact by the petitioner that

earlier also a petition bearing No.CRM-M-12308-2024 was filed seeking

anticipatory bail, but the same was dismissed as withdrawn vide order dated

11.03.2024, after arguing for some time, since the Court was not inclined to accept

the said prayer.

4. Heard learned counsel for the respective parties.

1 of 9

Neutral Citation No:=2024:PHHC:045331

5. To examine the issue and answer the question, I deem it just and fair to

begin with noticing the provisions of anticipatory bail as introduced in the Code of

Criminal Procedure, 1973 for the first time, since there was no such provision under

the old Code of 1898. Earlier there had been conflicting views holding that bail

could be granted to a person against whom a report of an offence was made even

though, he was neither arrested nor detained and even in a case, where a person was

suspected of an offence for which he might be arrested by a Police Officer but

majority of view also held that even the High Court did not have inherent power to

grant anticipatory bail by invoking Section 561-A of the old Code, thereafter law

Commission in its 41st report advocated the grant of power to superior Courts for

the purpose of anticipatory bail, which was also endorsed in the 48th report of the

Commission and incorporated Clause 447 of the Code of Criminal Procedure Bill,

1970 for the first time, which reads as under:-

"31. The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission (41st report). We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.

We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the public prosecutor. The initial order should only be an interim one. Further the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interest of justice......"

2 of 9

Neutral Citation No:=2024:PHHC:045331

6. The said Clause was enacted as Section 438 in the existing Code of

Criminal Procedure, 1973. Thereafter, the Hon'ble five Judges of Supreme Court

tested the judicial discretion envisaged under Section 438 Cr.P.C., alongwith other

factors connected with the said provision in case Gurubaksh Singh Sibbia vs. State

of Punjab, ((1980)2 SCC 565) and prompted certain principles which may be

summarised as under:

" (i) The use of the expression 'reason to believe' in Section 438(1) shows that the belief that the applicant may be so arrested must be founded on reasonable grounds.

Mere 'fear' is not 'belief. 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. Such belief 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 arrested. Specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief. (Paras 35, 40 and 41).

A blanket order i.e. an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had should not generally be passed. Such a blanket order- is bound to cause serious interference with the functions of the police. (Paras 40 and 41)

(ii)If an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question

3 of 9

Neutral Citation No:=2024:PHHC:045331

for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises. (Para 36).

(iii)The filing of an FIR is not a condition precedent to the exercise of the power under Section 438. (Para 37)

(iv)Anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested. (Para

38).

(v) The provisions of Section 438 cannot be invoked after the arrest of the accused. (Para 39)

(vi)An order of bail can be passed under Section 438(1) without notice to the Public Prosecutor or the Government advocate forthwith and the question of bail should be re- examined in the light of the respective contentions of the parties. The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage (Para 42)

(vii)Regarding time-limit, if any, for anticipatory bail the court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time. (Para 42)"

7. In the light of aforesaid judicial pronouncements and the provisions of

Section 438 Cr.P.C., 1973, it is crystal clear that the Court must be satisfied that a fit

case had been made out for exercise of such discretion. This Court has to make an

4 of 9

Neutral Citation No:=2024:PHHC:045331

effort to strike a balance between the individuals right to personal freedom and the

investigational rights of the police. This provision is not to be applied mechanically

especially in the light of phraseology "if it thinks fit" as envisaged therein with Sub

Section(2) is indicative enough that such order on the face of it must show the

reasons for granting anticipatory bail.

8. The insertion of word "or" in sub-Section 1 of Section 438 has invested

this Court with concurrent jurisdiction. Evidently the discretionary power to the

Court does not flow from Article 21 of the Constitution of India for grant of

anticipatory bail but conferred by the Statute enacted by the Parliament, wherein a

distinction from the language of Sections 438 and 439 Cr.P.C., is quite evident that

the provisions contained in Section 439 flow from Article 21 of the Constitution of

India.

9. The constitutional Bench of the Apex Court has interpreted Section

438(1) of Cr.P.C., in the case of Gurubaksh's Singh (supra), which indicated:-

"Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The application 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 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

5 of 9

Neutral Citation No:=2024:PHHC:045331

court can determine whether the applicant has reason to believe that he may be 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 applicants for anticipatory bail will be, as large as, at any rate, the adult populace. Anticipatory bail is a device "to secure the individual's liberty". it is neither a passport to the commission of crime nor a shield against any and all kinds of accusations, likely or unlikely."

10. Apart from that, the question "can a formula be devised conferring the

power of granting anticipatory bail in straight jacket?" was answered in the negative

observing that while laying down cast iron rules in a matter like granting

anticipatory bail, it is apt to be overlooked that even Judges can have but an

imperfect awareness of the needs of new situation. Judges have to decide cases as

they come before them, mindful of the need to keep passions and prejudices out of

their decisions and it will be strange, if, by employing judicial artifices and

techniques, discretion conferred upon the Courts is cut down by devising a straight

jacket formula. Going further, I noticed that the Hon'ble Constitution Bench

narrated the situation and contingencies for invoking power under Section 438

indicating in para 8 of the judgment of Gurubaksh Singh Sibbia vs. State of

Punjab (supra), which reads as under:

"No one can accuse the police of possessing a healing touch nor indeed does anyone have misgiving in regard to constraints consequent upon confinement in police custody. But, society has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of sangfroid, in so far as the ordinary rule of criminal investigation is concerned. It is the normal day-to-day

6 of 9

Neutral Citation No:=2024:PHHC:045331

business of the police to investigate into charges brought before them and broadly and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminals to needless harassment. But the crimes, the criminals and even the complainants can occasionally possess extraordinary features. When the even flow of the life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism. The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation. That can even take the form of the parading of a respectable person in hand cuffs, apparently on way to a court of justice. The foul deed is done when an adversary is exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible. It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973".

11. Having discussed the factual and legal chronology, this Court

convincingly able to observe that while exercising powers under Section 438

Cr.P.C., the Court is duty bound to strike a balance between the individuals right to

personal freedom and the investigational right of the police, therefore, the

provisions of anticipatory bail cannot be allowed to put to abuse at the instance of

unscrupulous petitioners.

12. Accordingly, the second or subsequent bail application under Section

438 Cr.P.C., can be filed, if there is a change in the fact-situation or in law, which

requires the earlier view being interfered with or where the earlier finding has

7 of 9

Neutral Citation No:=2024:PHHC:045331

become obsolete. An accused, who has been denied the bail earlier can move a

subsequent application only on in that limited area. If the issue, which had been

canvassed earlier, would not be permitted to be re-agitated on the same grounds, as

it would lead to a speculation and uncertainty in the administration of justice and

may lead to forum hunting.

13. This Court cannot loose sight of the fact that the drug menace in the

State of Punjab is writ large and large number of youth are falling prey at the hands

of such mafia. The role of the petitioner is not that of law abiding citizen as is

evident from the record before this Court. It is of utmost importance at this stage to

consider the clandestine smuggling of narcotics drugs and psychotropic substance

which has led to drug addiction among a sizeable section of the public, particularly

the adolescence and students of both sexes. The menace has assumed serious and

alarming proportions in recent times. It has to be borne in mind that in a murder

case the accused commits murder of one or two persons, while those who are

dealing in narcotic drugs are instrumental in causing death or inflicting death blow

to a number of innocent young victims, who are vulnerable leaning deleterious

effects and a deadly impact on the society and are a hazard to the society. Even if,

they are released temporarily, in all probability, they would continue their nefarious

activities of trafficking and/or dealing in intoxicants clandestinely obviously for

large stake and easy illegal profit making mode. In the present prevailing scenario,

the drug trafficking, trading and its use has acquired dimensions of an epidemic

which not only effects the economic policies of the State but corrupts the system

apart from leaving the impact of producing sick society. I will not be shy of saying

that anti drug justice is a criminal dimension of social justice as drug addiction

forms vitals of the society alongwith illicit money generation by drug trafficking.

8 of 9

Neutral Citation No:=2024:PHHC:045331

14. In the instant case, second petition for anticipatory bail merely alleging

that the petitioner wants an order on merits, so that he could approach the Hon'ble

Apex Court except that there is no change in circumstances.

15. In the light of above submissions made by learned counsel for the

petitioner, no ground is made out to entertain the second anticipatory bail petition.

Hence, the same is dismissed with cost of Rs.25,000/-, which shall be deposited

with the Punjab & Haryana High Court Bar Association, Chandigarh.

16. Ordered accordingly.

                                                     (SANDEEP MOUDGIL)
04.04.2024                                                JUDGE
Meenu



Whether speaking/reasoned       Yes/No
Whether reportable              Yes/No




                                       9 of 9