The court emphasized the need for tangible grounds for anticipatory bail and the duty to balance individual freedom and police investigation rights.

JUDGMENT :

Sandeep Moudgil, J.

1. This is a second petition for grant of anticipatory bail to the petitioner in FIR No.585, dated 04.11.2022, under Sections 147, 148, 149, 188, 323, 452, 379, 427 and 506 of IPC (Section 307 of IPC added later on), registered at Police Station Sadar Nuh, District Nuh.

2. Learned counsel for the petitioner has drawn attention of this Court to an order dated 30.05.2023 passed by the Apex Court, whereby the petitioner has withdrawn the Special Leave Petition with liberty to file a fresh petition before this High Court seeking the same relief and said liberty was granted, therefore, he contends that the second anticipatory bail petition is maintainable.

3. On a question put by this Court that the second anticipatory bail petition would be maintainable only in case there was any inadvertent bona fide error for not bringing any fact before this Court on the previous date of hearing i.e., on 28.03.2023 or there is any subsequent change of circumstances, but the petitioner has failed to refer any such change of circumstances or factual aspect to claim maintainability of second anticipatory bail petition, except the argument that Section 307, which was added later on is not attributed to the petitioner.

4. On a bare perusal of the FIR and the order dated 28.03.2023, this very argument was raised on that day as well, which was opposed by Mr. Rajesh Lamba, learned Advocate appearing for the complainant before this Court and once the Court was not convinced that petition was sought to be dismissed as withdrawn and at that time, Mr. Manoj Tanwar, learned Advocate was appearing for the petitioner.

5. Today, there is a change of counsel, as Mr. Intizar Ul Hasan, learned Advocate has appeared and on that account, he submits that the petitioner could not heard properly to make out a case that Section 307 is not attributed to the petitioner.

6. Be that as it may, this Court has heard the matter on merits on 28.03.2022 and the change of counsel would not make any difference before this Court on factual aspects, which are apparent from the FIR as well as other material documents i.e., order dated 20.03.2023 (Annexure P-7) passed by the Court below vide which the anticipatory bail petition was dismissed.

7. There is a specific observation in the FIR as well as in the order dated 20.03.2023 (Annexure P-7) passed by the Court below, while declining the concession of anticipatory bail that the petitioner namely Rifakat had thrown the stone, which caused injury on the head and as per the medical report, injury was grievous in nature, which is a vital part of the body.

8. Though, without going into the merits, a mere reference is sufficient enough to record that actually the case was heard at length during the course of hearing of first anticipatory bail petition and there is no such change of factual aspects or any other new ground raised by the counsel for the petitioner today before this Court with the change of counsel as well.

9. In the second anticipatory bail petition, which is otherwise not maintainable, as has been observed by this Court in Gaurav Matta vs. State of Haryana passed in CRM-M-9494-2023, while relying upon the judgment of Hon’ble five Judges of Supreme Court tested the judicial discretion envisaged under Section 438 Cr.P.C., alongwith other factors connected with the said provision in case Gurubaksh Singh Sibbia vs. State of Punjab, ((1980) 2 SCC 565) and prompted certain principles which may be summarised as under :

“(i) The use of the expression 'reason to believe' in Section 438(1) shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. Such belief must be capable of being examined by the court objectively, because it is then alone