Vivek Singh Thakur, J
1. Petitioner has approached this Court, invoking provisions of Section 438 of the Code of Criminal Procedure (for short ‘Cr.P.C.’), seeking
anticipatory bail in case FIR No.4 of 2022, dated 22.9.2022, registered in Police Station State Vigilance and Anti Corruption Bureau, Shimla (for short
‘SV&ACB’), under Sections 7 & 8 of the Prevention of Corruption (Amendment) Act, 1918 (for short ‘PC Act’).
2. Status report stands filed. Record was also made available.
3. Prosecution case is that report of conversation between one Balram and Dr. Ajay Kumar Gupta (petitioner), the then Director of Health Services,
Himachal Pradesh, prepared by Inquiry Officer, Deputy Superintendent of Police, SV&ACB, SIU Shimla, was sent to the Government for according
necessary permission to register a regular case against Dr. Ajay Kumar Gupta. Vide communication dated 17.9.2022, necessary permission was
received from Special Secretary (Personnel) to the Government of Himachal Pradesh and, accordingly, FIR No.4 of 2022 has been registered in
Police Station SV&ACB, Shimla.
4. According to Status Report, during investigation of FIR No.4 of 2020, dated 20.5.2020, registered under Sections 7 & 8 of PC Act, in Police Station
SV&ACB, Shimla, conversations/call recordings between Mobile Number 9872495807 (saved in the name of Balram) and Dr. Ajay Kumar Gupta,
were retrieved by State Forensic Science Laboratory from Mobile Phone of Dr. Ajay Kumar Gupta, among other conversations, which suggested
offer and acceptance of bribery/criminal misconduct/misconduct on the part of public servant. Details surfaced from the conversation/ call
records/documents indicated that for purchase of equipment/machine by the Health Department of Himachal Pradesh, share/cut-money was offered
and received by Dr.Ajay Kumar Gupta and Balram at the rate of Rs.85,000/- per machine and, for five machines, the amount of Bribe was
Rs.4,25,000/-, out of which an amount of Rs.18,000/- was to be deducted as expenditure and, in the aforesaid amount, 80% amount was to be given to
Dr. Ajay Kumar Gupta and 20% to Balram and, as per conversation, both of them calculated the share/cut-money payable to Dr. Ajay Kumar Gupta
as Rs.3,36,000/ -, but finally Dr. Ajay Kumar Gupta demanded Rs.3,40,000/- from Balram by informing Balram that Rs.3,40,000/- be deposited in
State Bank of India (SBI) Account, and through Whatsapp dated 17.4.2020, an image of handwritten details of Account maintained in the name of
Smt. Renu Bala (sister-in-law of Dr. Ajay Kumar Gupta), in SBI Branch Ambala Cantt, were transmitted by Dr. Ajay Kumar Gupta to Balram.
5. It has been further stated in Status Report that on 9.4.2020, Director of Health Services sanctioned Rs.30,01,600/- in favour of M/s Kroma Systems
Company for purchasing five ABG Machines and the same was deposited/transferred in the Account of the Company maintained in ICICI Bank
Branch in Sector 45C Burail, Chandigarh. It has further come in evidence that Balram was having Account in the name of NIT Simran Diagnostics,
being maintained with Canara Bank, and amounts of Rs.95,000/- and Rs.13,44,452/- were transferred by M/s Kroma Systems Company to M/s NIT
Simran Diagnostics, on 15. 4.2020. On 17.5.2020, an amount of Rs.3,40,000/- was transferred from Balram’s Account to SBI Account being
maintained by Mrs. Renu Bala referred supra.
6. It is further stated in the Status Report that in the conversation retrieved from the Mobile Phone of Dr. Ajay Kumar Gupta, there are talks for
negotiating the rate of Thermal Scanners and for determining cut-money wherein Balram had been assuring to pay Rs.1,500/- per unit to Dr. Ajay
Kumar Gupta.
7. It is also case of the Investigating Agency that in conversation dated 17.4.2020, Dr. Ajay Kumar Gupta had informed Balram about sending
Account Number of Renu Bala to Balram through Whatsapp Message, with further advice to fill the Account Number carefully and to make a call
immediately after completion of transaction. On 17.4.2020, in another conversation, Balram informed Dr. Ajay Kumar Gupta that he had seen the
Whatsapp and will call accordingly.
8. As per Status Report, from the record of SBI, it is substantiated that on 17.4.2020, an amount of Rs.3,40,000/- was transferred to Account of Renu
Bala, and it has also transpired from Bank record that Renu Bala had transferred back Rs.1,00,000/- on 11.7.2020, Rs.1,10,000/- on 11.8.2020 to the
Account of M/s NIT Simran Diagnostics.
9. It has been pointed out on behalf of respondent that the aforesaid amount was transferred after registration of earlier case, i.e. FIR No.4 of 2020,
dated 20.5.2020, registered against Dr. Ajay Kumar Gupta (petitioner) who was Director of Health Services at that time.
10. It has been further stated in the Status Report that an application has been filed by Investigating Agency for taking voice sample of Dr. Ajay
Kumar Gupta, but he is resisting to give voice sample by objecting the contents of application. The said application is pending before Special Judge
(Forest), Shimla.
11. It has been stated in the Status Report that during surge of COVID-19 pandemic cases in the country, large number of people were hospitalized
for oxygen treatment in Emergency and there was deficiency of ABG Machines in the hospitals and, therefore, the Health Department of Himachal
Pradesh purchased the ABG Machines to address the pandemic. It has been further stated that in such crisis, it was expected of the public servants at
higher level, like Dr. Ajay Kumar Gupta, to be more sincere to maintain transparency and fairness in dealing with purchase of machines during
Pandemic, but Dr. Ajay Kumar Gupta failed to do so, and it is evident from material on record that he demanded and accepted bribe for facilitating a
firm.
12. Learned counsel for the petitioner has submitted that Renu Bala is God-sister of Balram and transfer of money by Balram to Renu Bala was on
request of Renu Bala as she was in need of money and lateron she refunded the same as has also come on record in the Status Report. The said
amount or Account has nothing to do with the petitioner. It has been further submitted that Mobile Phone of petitioner has already been sent to SFSL
Junga, in FIR No.4 of 2020, about one year ago and there was no conversation between Balram and the petitioner and further that voice sample of the
petitioner is already with the police and available in SFSL Junga and, therefore, there is no need to take voice samples. It has also been stated that
Investigating Agency has no material to substantiate the link between Dr. Ajay Kumar Gupta and Balram.
13. It has been submitted on behalf of the petitioner that entire record of the Department is with the police and the petitioner has retired in the year
2020 and, therefore, he has no control over the documents/record and there is no possibility of tampering with the evidence or record by him. Further
that, Bank record is with the Bank upon which petitioner has no control.
14. It has further been submitted on behalf of the petitioner that nothing has been received by the petitioner from the supplier-Company or Balram and
further that petitioner has joined the investigation and is rendering full cooperation to the Investigating Agency and he is ready to give voice sample
also.
15. It has been further submitted that custodial interrogation of the petitioner is not required as entire case of prosecution is based upon documentary
and other evidence of such nature that petitioner would not be able to tamper it, and further that petitioner is a Senior Citizen and present case has
been registered against him under pressure.
16. With aforesaid submissions, learned counsel has prayed for enlargement of the petitioner on anticipatory bail.
17. Learned counsel for the petitioner has placed reliance on a judgment passed by the Supreme Court in Manoranjana Sinh alias Gupta v. Central
Bureau of Investigation, (2017) 5 SCC 218 (219), to substantiate the claim to enlarge the petitioner on bail:
“16. This Court in Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40, also involving an economic offence of formidable
magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required
to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that
punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of
bail is neither punitive nor preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it
would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse
bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant
bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the
valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one
of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege,
is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under -trial prisoners for an
indefinite period would amount to violation of Article 21 of the Constitution was highlighted.â€
18. Learned Additional Advocate General has submitted that claim of the petitioner that Renu Bala is God-sister of Balram is falsified from the fact
that the Account Number of Renu Bala was sent by Dr. Ajay Kumar Gupta to Balram by sending an image of the handwritten document, through
Whatsapp Messaging, and in case Renu Bala was God-sister of Balram, there was no occasion for Balram to ask or to have Account Number of his
God-sister from Dr. Ajay Kumar Gupta. He has further submitted that it is an admitted fact that Renu Bala is sister-in-law of Dr. Ajay Kumar Gupta.
It has been further submitted that conversation between Balram and Dr. Ajay Kumar Gupta was for Rs.3,40,000/- as cut-money and deposit of the
same amount in the Account Number supplied by Dr. Ajay Kumar Gupta substantiates relation with the conversation and the transaction. It has been
further submitted that though it is claimed on behalf of petitioner that he is ready to give voice sample, but it is a fact that despite filing of an
application by the Investigating Agency, petitioner has not given any voice sample.
19. It has further been submitted that during COVID-19 crisis, the very existence of human race was at stake and, therefore, it was expected from
everyone, particularly responsible and higher Officers that they shall act with fairness, honesty and transparently in purchasing life saving equipments
and reposing such faith on higher Officers, the Government also gave free hand to purchase medical equipments for serving the public at large but Dr.
Ajay Kumar Gupta has been found involved in commission of crime which, in the facts and the circumstances of the present case, is amounting to
commission of heinous crime.
20. It has also been submitted by the learned Additional Advocate General that investigation is at initial stage and keeping in view the nature of
offence committed by the petitioner and impact of grant of bail, in such situation, on the society, petitioner is not entitled for anticipatory bail.
21. It has been further stated by learned Additional Advocate General that judgment in Manoranjana Sinh alias Gupta’s case supra is related to an
application filed for regular bail, under Section 439 Cr.P.C., and the parameters for consideration in both petitions, i.e. Section 438 Cr.P.C. and Section
439 Cr.P.C., are substantially different and, therefore, in view of the material placed on record, as explained in the Status Report, he has prayed for
dismissal of the bail application.
22. In P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24, the Supreme Court has observed as under:
“Grant of anticipatory bail in exceptional cases 69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of
the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The
privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly
exercised after application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide
whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and
hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of
rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.
70. On behalf of the appellant, much arguments were advanced contending that anticipatory bail is a facet of Article 21 of the Constitution of India. It
was contended that unless custodial interrogation is warranted, in the facts and circumstances of the case, denial of anticipatory bail would amount to
denial of the right conferred upon the appellant under Article 21 of the Constitution of India.
71. Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedure
prescribed by law. However, the power conferred by Article 21 of the Constitution of India is not unfettered and is qualified by the later part of the
Article i.e. ""....except according to a procedure prescribed by law."" In State of M.P. and another v. Ram Kishna Balothia, (1995) 3 SCC 221, the
Supreme Court held that the right of anticipatory bail is not a part of Article 21 of the Constitution of India and held as under: (SCC p.226, para 7)
7. ........We find it difficult to accept the\ contention that Section 438 of the Code of Criminal Procedure is an integral part of Article
21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission in its 41st Report
recommended introduction of a provision for grant of anticipatory bail. It observed:
‘We agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised.’
In the light of this recommendation, Section 438 was incorporated, for the first time, in the Criminal Procedure Code of 1973. Looking to the cautious
recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also,
anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution.
It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences
cannot be considered as violative of Article 21."" (emphasis supplied)
72. We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individual's personal
liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must
also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate
balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest. It cannot be
said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of
India.
73. The learned Solicitor General has submitted that depending upon the facts of each case, it is for the investigating agency to confront the accused
with the material, only when the accused is in custody. It was submitted that the statutory right under Section
19 of PMLA has an in-built safeguard against arbitrary exercise of power of arrest by the investigating officer. Submitting that custodial interrogation
is a recognised mode of interrogation which is not only permissible but has been held to be more effective, the learned Solicitor General placed
reliance upon State v. Anil Sharma, (1997) 7 SCC 187; Sudhir v. State of Maharashtra, (2016) 1 SCC 146; and Directorate of Enforcement v. Hassan
Ali Khan, (2011) 12 SCC 684.
74. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the
accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the
investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to
interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State
v. Anil Sharma, (1997) 7 SCC 187, the Supreme Court held as under: (SCC p.189, para 6)
6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation- oriented than questioning a suspect who is
well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of
tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation
would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very
often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial 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 a responsible manner and that those entrusted with the task of
disinterring offences would not conduct themselves as offenders.
75. Observing that the arrest is a part of the investigation intended to secure several purposes, in Adri Dharan Das v. State of W.B., (2005) 4 SCC
303, it was held as under: (SCC p.313, para 19)
19. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail
regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime.
There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his
freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime,
to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process
of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is
well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere
with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing
with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section
438 of the Code.
76. In Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, the Supreme Court laid down the factors and parameters to be
considered while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the accused must be
properly comprehended before arrest is made and that the court must evaluate the available material against the accused very carefully. It was also
held that the court should also consider whether the accusations have been made only with the object of injuring or humiliating the applicant by
arresting him or her.
77. After referring to Siddharam Satlingappa Mhetre and other judgments and observing that anticipatory bail can be granted only in exceptional
circumstances, in Jai Prakash Singh v. State of Bihar, (2012) 4 SCC 379, the Supreme Court held as under: (SCC p.386, para 19)
19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must
record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the
applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran, (2007) 4 SCC 434,
State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain, (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal, (2008) 13 SCC
305.)""â€
Economic offences
78. Power under Section 438 Cr.P.C. being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences.
Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain,
(1998) 2 SCC 105, it was held that in economic offences, the accused is not entitled to anticipatory bail.
79. The learned Solicitor General submitted that the ""Scheduled offence"" and ""offence of money laundering"" are independent of each other and
PMLA being a special enactment applicable to the offence of money laundering is not a fit case for grant of anticipatory bail. The learned Solicitor
General submitted that money laundering being an economic offence committed with much planning and deliberate design poses a serious threat to the
nation's economy and financial integrity and in order to unearth the laundering and trail of money, custodial interrogation of the appellant is necessary.
80. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the
community, in State of Gujarat v. Mohanlal Jitamalji Porwal and others, (1987) 2 SCC 364, it was held as under:-
5. .....The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be
committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an
eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the
cost of forfeiting the trust and faith of the community in the system to administer justice in an even- handed manner without fear of criticism from the
quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest......
81. Observing that economic offences constitute a class apart and need to be visited with different approach in the matter of bail, in Y.S. Jagan
Mohan Reddy v. CBI, (2013) 7 SCC 439, the Supreme Court held as under:-
34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having
deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy
of the country as a whole and thereby posing serious threat to the financial health of the country.
35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the
punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of
securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State
and other similar considerations.
82. Referring to Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria, (1998) 1 SCC 52, in
Enforcement Officer, Ted, Bombay v. Bher Chand Tikaji Bora and others, (1999) 5 SCC 720, while hearing an appeal by the Enforcement
Directorate against the order of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court
set aside the order of the Single Judge granting anticipatory bail.
83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the
useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is
protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation.
Having regard to the materials said to have been collected by the respondent- Enforcement Directorate and considering the stage of the investigation,
we are of the view that it is not a fit case to grant anticipatory bail.â€
23. In Mangal Singh Negi v. Central Bureau of Investigation, reported in 2021(2) Shim. LC 860 : 2021(2) Him L.R. (HC) 917, this Court observed as
under:
“19. Provisions related to information to the Police and their powers to investigate have been incorporated in Sections 154 to 176 contained in
Chapter-XII of the Code of Criminal Procedure (‘Cr.P.C.’ for short).
20. Section 156 Cr.P.C. empowers Police Officer to investigate in cognizable offences without order of the Magistrate and Section 157 prescribes
procedure for investigation, which also provides that when an Officer Incharge of a Police Station has reason to suspect the commission of an
offence, which he is empowered to investigate under Section 156, he, after sending a report to the Magistrate, shall proceed in person or shall depute
one of his subordinate Officers as prescribed in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if
necessary, to take measures for the discovery and arrest of the offender.
21. Chapter V of the Cr.P.C. deals with provisions related to arrest of persons, wherein Section 41 also, inter alia, provides that any Police Officer
may, without an order from Magistrate, and without a warrant, arrest any person against whom reasonable complaint has been made or credible
information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment which may
be less than seven years or may extend to seven years, subject to condition that he has reason to believe, on the basis of such complaint, information,
or suspicion, that such person has committed the said offence and also if the Police Officer is satisfied of either of the conditions provided under
Section 41(1)(b)(ii), which also include that if such arrest is necessary “for proper investigation of the offenceâ€. Whereas Section 41(1)(ba)
empowers the Police Officer to make such arrest of a person against whom credible information has been received that he has committed a
cognizable offence punishable with imprisonment for a term which may extend to more than seven years or with death sentence and the Police
Officer has reason to believe, on the basis of that information, that such person has committed the said offence, and for commission of such offence
no further condition is required to be satisfied by the Police Officer. Therefore, Police Officer/Investigating Officer is empowered to arrest the
offender or the suspect for proper investigation of the offence as provided under Section 41 read with Section 157 Cr.P.C.
22. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to the procedure
established by law. Arrest of an offender during investigation, as discussed supra, is duly prescribed in Cr.P.C.
23. At the same time, Cr.P.C. also contains Chapter XXXIII, providing provision as to bail and bonds, which empowers the Magistrate, Sessions Court
and High Court to grant bail to a person arrested by the Police/Investigating Officer in accordance with provisions contained in this Chapter. This
Chapter also contains Section 438 empowering the Court to issue directions for grant of bail to a person apprehending his arrest. Normally, such bail is
called as “Anticipatory Bailâ€. Scope and ambit of law on Anticipatory Bail has been elucidated by the Courts time and again.
24. Initially, provision for granting Anticipatory Bail by the court was not in the Cr.P.C., but on the recommendation of the Law commission of India in
its 41st Report, the Commission had pointed out necessity for introducing a set provision in the Cr.P.C. enabling the High Court and Court of Session
to grant Anticipatory Bail, mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or
for other purposes by getting them detained in jail for some days. It was also observed by the Commission that with the accentuation of political
rivalry, this tendency was showing signs and steady increase and further that where there are reasonable grounds for holding that the person accused
of an offence is not likely to abscond or otherwise misuse his liberty, while on bail, there seems no justification to require him to submit to custody,
remain in prison for some days and then apply for bail. On the basis of these recommendations, provision of Section 438 Cr.P.C. was included in
Cr.P.C. as an antidote for preventing arrest and detention in false case. Therefore, interpretation of Section 438 Cr.P.C., in larger public interest, has
been done by the Courts by reading it with Article 21 of the Constitution of India to keep arbitrary and unreasonable limitations on personal liberty at
bay. The essence of mandate of Article 21 of the Constitution of India is the basic concept of Section 438 Cr.P.C.
25. Section 438 Cr.P.C. empowers the Court either to reject the application forthwith or issue an interim order for grant of Anticipatory Bail, at the
first instance, after taking into consideration, inter alia, the factors stated in sub-section (1) of Section 438 Cr.P.C. and in case of issuance of an
interim order for grant of Anticipatory Bail the application shall be finally heard by the Court after giving reasonable opportunity of being heard to the
Police/ Prosecution. Section 438 Cr.P.C. prescribes certain factors which are to be considered at the time of passing interim order for grant of
Anticipatory Bail amongst others, but no such factors have been prescribed for taking into consideration at the time of final hearing of the case.
Undoubtedly, those factors which are necessary to be considered at the time of granting interim bail are also relevant for considering the bail
application at final stage.
26. A balance has to be maintained between the right of personal liberty and the right of Investigating Agency to investigate and to arrest an offender
for the purpose of investigation, keeping view various parameters as elucidated by the court in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2
SCC 565 and Sushila Aggarwal & others v. State (NCT of Delhi) & another, (2018) 7 SCC 731 cases and also in other pronouncements referred by
learned counsel for CBI.
27. The Legislature, in order to protect right of the Investigating Agency and to avoid interference of the Court at the stage of investigation, has
deliberately provided under Section 438 Cr.P.C. that High Court and the Court of Session are empowered to issue direction that in the event of arrest,
an offender or a suspect shall be released on bail. The Court has no power to issue direction to the Investigating Agency not to arrest an offender. A
direction under Section 438 Cr.P.C. is issued by the Court, in anticipation of arrest, to release the offender after such arrest. It is an extraordinary
provision empowering the Court to issue direction to protect an offender from detection. Therefore, this power should be exercised by the Court
wherever necessary and not for those who are not entitled for such intervention of the Court at the stage of investigation, for nature and gravity of
accusation, their antecedents or their conduct disentitling them from favour of Court for such protection.
28. Where right to investigate, and to arrest and detain an accused during investigation, is provided under Cr.P.C., there are provisions of Articles 21
and
22 of the Constitution of India, guaranteeing protection of life and personal liberty as well as against arrest and detention in certain cases. It is well
settled that interference by the Court at the investigation stage, in normal course, is not warranted. However, as discussed supra, Section 438 Cr.P.C.
is an exception to general principle and at the time of exercising power under Section 438 Cr.P.C., balance between right of Investigating Agency and
life and liberty of a person has to be maintained by the Courts, in the light of Fundamental Rights guaranteed under Articles 21 and 22 of the
Constitution of India, but also keeping in mind interference by the Court directing the Investigating Officer not to arrest an accused amounts to
interference in the investigation.
29. Though bail is rule and jail is exception. However, at the same time, it is also true that even in absence of necessity of custodial interrogation also,
an accused may not be entitled for anticipatory bail in all eventualities. Based on other relevant factors, parameters and principles enumerated and
propounded by Courts in various pronouncements, some of which have also been referred by learned counsel for CBI, anticipatory bail may be denied
to an accused. Requirement of custodial interrogation is not only reason for rejecting bail application under Section 438 Cr.P.C.
30. Nature and gravity of offence, extent of involvement of petitioners, manner of commission of offence, antecedents of petitioners, possibility of
petitioners fleeing from justice and impact of granting or rejecting the bail on society as well as petitioner, are also amongst those several relevant
factors which may compel the Court to reject or accept the bail application under Section 438 Cr.P.C. It is not possible to visualize all factors and
enlist them as every case is to be decided in its peculiar facts and circumstances.â€
24. Without commenting upon the merits of the rival contentions, but taking into consideration nature and gravity of offence, initial stage of
investigation, and the factors and parameters to be considered at the time of adjudicating an application for anticipatory bail, as propounded by the
Courts, including the Supreme Court, balancing the personal interest vis-Ã -vis public interest, I am of the opinion that no case for grant of anticipatory
bail is made out.
25. Observations made hereinbefore shall not affect merits of the case in any manner and are strictly confined for the disposal of the bail application.
Hence, in view of the above discussion, the bail petition is dismissed and disposed of.
