Rep. by The C.B.I. Vs. Anil Sharma  INSC 702 (3 September 1997)
MUKHERJEE, K. T. THOMAS
appeal is by the central Bureau of Investigation (`CBI' for shot) assailing the
pre-arrest order granted by the High Court of Himachal Pradesh in favour of the
responded under section 438 of the Code of Criminal Procedure. Respondent was a
former Minister of the Himachal Pradesh State Government and he held the office
for about three years. Besides that, he is a member of the Legislative Assembly
of that State also. His father Sukram was Union Minister for
Telecommunications. CBI has been investigating a case against respondent for
offence under Sections 13 of the prevention of Corruption Act, 1998 with the allegation
that respondent approached the High Court of Himachal Pradesh for an order of
anticipatory bail. Over- ruing all the objecting raised by the CBI, a learned
Single Judge of the High Court granted the order Subject to the conditions that
respondent shall not go aboard without prior permission of the Court, and shall
surrender his passport to the CBI etc.
made against respondent, as at present, are inter alia, that he had acquired
wealth to the tune of Rs.16,65,000/- as against his known sources of income
which could not reach even half of that. CBI further alleges that the assets
have been made by the responded through illegal means and "there is
clear-cut evidence pointing to the transfer of assists by Shri Sukhram in the
name his son".
to the CBI, respondent's is a clear case of corruption in high places and the
order of anticipatory bail should never have been granted in such a case.
heard Sri K.N Bhat, Additional solicitor General who argued for the CBI and Shri
R. K. Jain senior Advocate who argued for the respondent. We felt the need to
go through the Case-Diary which was made available to us in a sealed cover. We
perused that. Additional solicitor General contended that High Court has gone
wholly wrong in existing the description in favour of the respondent. According
to him, considering the responsible and high office which respondent held and
the wide influence which he could wield and the great handicap which
investigating agency would be subjected to while interrogating under section
438 should never have been exercised in favour of the respondent.
other hand Sri R.K. Jain, defending the order contended that it is not proper
for the Supreme Court to interfere with it as it was passed by the High Court
in exercise of a discretionary power.
find force in the submission of the CBI that custodial interrogation is
qualitatively more elicitation oriented than questioning a suspect who is well ensconded
with a favorable order under Section 438 if the code. In a case like this
effective interrogation of suspected person is of tremendous advantage in disintering
many useful informations and also materials which would have been concealed.
Succession such interrogation would elude if the suspected person knows that he
is well protected and insulted by a pre-arrest bail during the time he
interrogated. Very often interrogation in such a condition would reduce to a
mere ritual. The argument that the oustodial interrogation is fraught with the
danger of the person being subjected to third degree methods need not be
countenanced, for, such an argument can be advanced by all accused in all
criminal cases. The court has to presume that responsible Police Officers would
conduct themselves in task of disintering offences would not conduct themselves
Court has approached the issue as through it was considering a prayer for
granting regular bail after arrest.
Single Judge of the High Court reminded himself of the principle that it is
well-settled that bail and not jail is a normal Rule and then observed thus:
exception circumstances are brought to the notice of the Court which may defeat
the proper investigation and bail to a person who is not accused of an offence
punishable with death or imprisonment for life. In the present case, no such expansional
circumstances have been brought to the notice of this Court which may defeat
proper investigation to decline bail to the applicant.
above observation are more germans while considering an application for
which should weigh with the Court while dealing with a request for anticipatory
bail need not be the same as for an application to release on bail after
rate learned Single Judge ought not have side-stepped the apprehension
expressed by the CBI (that respondent would influences the witness) as one
which can be made against all accused person all cases. The apprehension was
quite reasonable when considering the high position which respondent held and
in the nature of accusation relating to a period during which he held such
bestowing our anxious consideration, including a perusal of the Case-Diary
file, we definitely feel that the High Court has mis-directed itself in
exercising the discretionary power under Section 438 of the Code by granting a
pre-arrest bail order to the respondent. We, therefore, upset the impugned
order. The appeal is allowed accordingly.