JUDGMENT :

1. The petitioner has been arraigned as an accused in FIR under Crime No.302/2021 registered at Police Station Ambikapur Dehat, Distt. Surguja for the offence punishable under Section 420 read with Section 34 of the IPC and ultimately, on investigation, in final report, offences punishable under Sections 4, 5 & 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 and Section 10 of the Chhattisgarh Protection of Depositors’ Interest Act, 2005 (for short, ‘the Act of 2005’) have also been added. The petitioner made application under Section 438 of the CrPC for grant of anticipatory bail before the Court of Session which was ultimately rejected and thereafter, he filed M.Cr.C.(A)No.1007/2021 before this Court. This Court by order dated 27-9-2021 (Annexure P-6), rejected the application principally on the ground that by virtue of Section 15 of the Act of 2005, application for anticipatory bail under Section 438 of the CrPC is not maintainable. By way of this petition, the petitioner has sought anticipatory bail stating inter alia that since anticipatory bail provision with regard to Section 438 of the CrPC is not applicable, therefore, no prima facie case is made out against the petitioner and he is entitled for anticipatory bail, as the anticipatory bail application is not maintainable by virtue of Section 15 of the Act of 2005.

Submissions: -

2. Mr. Ajay Pal Singh, learned counsel appearing for the petitioner, would submit that Section 15 of the Act of 2005 takes away the right of the petitioner in availing the anticipatory bail which the petitioner would have otherwise been entitled to. According to him, Section 438 of the CrPC is a most essential safeguard for liberty of a person and that it is found necessary to meet the obvious cases of misuse of police power. He would rely upon the decision of the Supreme Court in the matter of Hema Mishra v. State of Uttar Pradesh and others, (2014) 4 SCC 453. He would finally submit that considering the allegations in the FIR and facts and circumstances of the case, the petitioner is entitled for anticipatory bail.

3. Mr. Ashish Tiwari, learned State counsel, has brought legal position with respect to grant of anticipatory bail when there is specific statutory bar under the special Act like Section 15 of the Act of 2005 and would submit that this is not the case where the petitioner is entitled for the privilege of anticipatory bail by way of writ petition.

4. We have heard learned counsel for the parties and considered their rival submissions made herein-above and went through the record with utmost circumspection.

Legal position: -

5. The law governing grant of anticipatory bail in writ petition is well settled. The Constitution Bench of the Supreme Court in the matter of Kartar Singh v. State of Punjab, (1994) 3 SCC 569 has held that a claim for prearrest protection is neither a statutory nor a right guaranteed under Article 14, Article 19 or Article 21 of the Constitution of India and observed in sub-para (17) of para 368 as under: -

“368. (17) Though it cannot be said that the High Court has no jurisdiction to entertain an application for bail under Article 226 of the Constitution and pass orders either way, relating to the cases under the 1987 Act, that power should be exercised sparingly, that too only in rare and appropriate cases in extreme circumstances. But the judicial discipline and comity of courts require that the High Courts should refrain from exercising the extraordinary jurisdiction in such matters.”

6. The Supreme Court in Hema Mishra (supra) taking note of its earlier Constitution Bench decision in Kartar Singh (supra) has held that in appropriate cases the High Court is empowered to entertain the petition under Article 226 of the Constitution of India where the main relief itself is against arrest and when provisions of Section 438 of the CrPC are not available to the accused. It was further held that this power is to be exercised with extreme ca