State Rep. by The C.B.I. Vs. Anil Sharma [1997] INSC 702 (3 September 1997)

M. K. MUKHERJEE, K. T. THOMAS

ACT:

HEADNOTE:

Thomas J.

Leave granted.

This 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.

Accusation 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".

According 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.

We 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.

On the 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.

We 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 as offenders.

High Court has approached the issue as through it was considering a prayer for granting regular bail after arrest.

Learned 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:

"unless 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.

The above observation are more germans while considering an application for post-arrest bail.

Consideration 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 arrest.

At any 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 office.

After 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.

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