1. Appeal against High Court order granting anticipatory bail under Section 438 CrPC to an accused alleged to have violated the Foreign Exchange Regulation Act. (Para 2 )
1999 Supreme(SC) 464
1999 (9) Supreme 500
SUPREME COURT OF INDIA
G.B. Pattanaik & Umesh C. Banarjee, JJ.
Enforcement Officer, Ted, Bombay -Appellant
versus
Bher Chand Tikaji Bora & Anr. -Respondents
Criminal Appeal No. 418 of 1999
Decided on 9-4-1999
IMPORTANT POINT
In case of FERA crime unless it is alleged and established in the materials that the appelicant is being unnessarily harassed y investigating agency court would not be justified in invoking jurisdiction u/s 438 and grant anticipatory bail-Merely because applicant is available for interogation anticipatory bail cannot be granted.
Headnote:Code of Criminal Procedure, 1973-Section 438-Bail-Anticipatory Bail-FERA Crime-Unless it is alleged and established in the materials that the appelicant is being unnessarily harassed y investigating agency court would not be justified in invoking jurisdiction u/s 438 and grant anticipatory bail-Merely because applicant is available for interogation anticipatory bail cannot be granted.
The white-collar criminal like the respondent against whom the allegation is that he has violated the provisions of the Foreign Exchange Regulation Act is a menace to the society and therefore unless he alleges and establishes in the materials that he is being unnecessarily harassed by the investigating agency, the Court would not be justified in invoking jurisdiciton under Section 438 CrPC and granting anticipatory bail. (Para 2)
Where the High Court was of the view that because the responent was available for interrogation and the prosecution did not avail of that opportunity there should not be any justification for not granting the anticipatory bail sought for, it was held that the High Court was wholly unjustified in invoking jurisdiction under Section 438 and granting anticipatory bail to the respondent. (Para 2)
Legal Category Hierarchy
Table of Contents
2. Dispute over whether availability for interrogation justifies anticipatory bail versus the requirement to establish unnecessary harassment by the investigating agency. (Para 2 )
3. White-collar criminals violating foreign exchange laws are a menace to society, and availability for interrogation alone does not justify granting anticipatory bail. (Para 2 )
4. Anticipatory bail under Section 438 CrPC for white-collar crimes is unjustified unless the accused establishes they are being unnecessarily harassed by the investigating agency. (Para 2 )
5. The High Court order granting anticipatory bail is set aside and the appeal is allowed. (Para 2 )
6. What is the standard for granting anticipatory bail in white-collar crime cases involving foreign exchange violations?
Such accused are considered a menace to society; thus, anticipatory bail under Section 438 CrPC is unjustified unless the accused establishes they are being unnecessarily harassed by the investigating agency. (Para 2 )
7. Does the availability of an accused for interrogation justify the grant of anticipatory bail?
No, the court held that the High Court was unjustified in granting anticipatory bail solely because the respondent was available for interrogation and the prosecution had not utilized that opportunity. (Para 2 )
8. How should courts approach the exercise of jurisdiction under Section 438 CrPC for economic offences?
Courts must consider the nature of the crime; for white-collar crimes, the burden is on the accused to show unnecessary harassment to justify the invocation of Section 438 CrPC. (Para 2 )
ORDER
1. Leave granted.
2. The Enforcemnt Directorate is in appeal before us against the order of the learned Single Judge of the Bombay High Court granting anticipatory bail to the respondent invoking jurisdiction under Section 438 of CrPC. From a bare reading of the impugned order it appears that the learned Single Judge is of the view that because the responent was available for interrogation and the prosecution did not avail of that opportunity there should not be any justification for not granting the anticipatory bail sought for. We have no hesitation to hold that the learned Judge has misread the decision of this Court referred to in the impugned order. The critria and questions to be considered for exercising power under Section 438 of CrPC has been recently dealt with in Dukhishyan Benupani, Asstt. Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria1. The white-collar criminal like the respondent against whom the allegation is that he has violated the provisions of the Foreign Exchange Regulation Act is a menace to the society and therefore unless he alleges and establishes in the materials that he is being unnecessarily harassed by the investigating agency, the Court would not be justified in invoking jurisdiciton under Section 438 CrPC and granting anticipatory bail. In the facts and circumstances of the present case, in our considered opinion, the High Court was wholly unjustified in invoking jurisdiction under Section 438 and granting anticipatory bail to the respondent. We, therefore, set aside the impugned order of the High Court. The appeal is accordingly allowed.
(C.R.) Appeal allowed.
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