IMPORTANT POINT
Order contemplated u/s 438 Cr.P.C. is to be granted or refused by the High Court or a Court of Sessions after exercising its Judicial discretion wisely.

ORDER

Leave granted.

2. The respondent apprehended that he would be arrested in connection with "Urea Scan". He approached the High Court of Andhra Pradesh for an order under Section 438 of the Code of Criminal Procedure (for short "the Code"). A Single Judge of the High Court initially granted an interim order in his favour and finally passed the impugned order making the interim order absolute. The Chief Enforcement Officer, Directorate of Enforcement: "Enforcement Director" for short) has filed this special leave petition.

3. It is not necessary to set out details of the case, yet we give a brief sketch of it. A fraud costing a whopping sum of Rs. 133 crores was perpetrated by some individuals after hatching a criminal conspiracy. A company by name M/s. National Fertilizers Ltd. entered into a deal with a Turkish company known as M/s. Karsans Inc. for the supply of urea worth 38 million US Dollars. The entire amount was paid to the Turkish company through the country s foreign exchange reserve without getting even an ounce of urea in return. It was later discovered that the siphoning of such a huge foreign exchange was the result of a well orchestrated conspiracy hatched by some individuals in and out of India. The Turkish company in return paid a substantial amount to "middlemen" as "kickbacks". The recipients of such kickbacks included those in India and abroad.

4. When the print media highlighted the large dimension of the fraud Central Bureau of Investigation was authorised to investigate into it. It was revealed that kickbacks were received by some middlemen in India in violation of the provisions of the Foreign Exchange Regulation Act, 1973, (for short "FERA"). It was then that the Enforcement Directorate also came into the picture are started investigation into offences involving FERA.

5. Some persons were already arrested including one Sambasiva Rao, who was Director of M/s. Sai Krishna Impex Ltd., Hyderabad. During investigation it appeared to the Enforcement Directorate that the respondent is also involved in this fraud and hence efforts were made to question him but the respondent avoided such interrogation by the officials of the Directorate, on more than one occasion. In the meanwhile the respondent, on his own, approached the High Court with a petition for an order under Section 438 of the Code.

6. Learned Single Judge, who granted the order to the respondent, pointed out that interim order was passed on 16-3-1996 on medical grounds. In the final order also learned Single Judge gave much leverage to the physical condition of the respondent. We may mention here that the physical impairment of the respondent which was pointed out was "sponoylitis". Learned counsel for the respondent has fairly admitted that, by now, lapse of time and medical care have helped the respondent to get rid of the ailment considerably. So we need not vex our mind whether that was a germane ground to be considered for granting anticipatory bail.

7. Learned counsel for the Enforcement Director forcefully attacked the reasoning of the learned Single Judge of the High Court and contended that the discretion under Section 438 of the Code was very improperly exercised in this case. Learned counsel for the respondent on the contrary defended the impugned order. Excerpts from Gurbaksh Singh v. State of Punjab1 have been doubted in support of it.

8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurbaksh Singh (supra) which has settled the position well heigh. Nonetheless we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Sessions, after exercising its judicial discretion wisely. The Constitution Bench in Gurbaksh Singh said thus:

"A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemper