Full Judgment Text
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PETITIONER:
STATE REP. BY THE C.B.I.
Vs.
RESPONDENT:
ANIL SHARMA
DATE OF JUDGMENT: 03/09/1997
BENCH:
M. K. MUKHERJEE, K. T. THOMAS
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
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
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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.