The power to grant anticipatory bail under Section 438 Cr.P.C. must be exercised sparingly, considering the nature of the accusation and the gravity of the offence, as well as the necessity of custodial trial.

JUDGMENT

The instant application is filed by the accused petitioner Sri Rajendra Das for granting him bail in the event of his arrest in connection with East Agartala P.S. Case No. 194 of 2013 under Sections 399/400 IPC and under Sections 25(1B)(a)/27 of the Arms Act wherein the police have filed the charge-sheet and the case has been committed to the court of the learned Additional Sessions Judge, Court No. 2 which has been registered as ST (T/1) 23 of 2014.

2. The prosecution case is as under:

That an information was lodged by one Sub-Inspector of Police, East Agartala P.S. on 21.9.2013 at about 20.55 hours that he received one secret information from one paid secret source that a criminal gang headed by one Amitabha Ghosh @ Ankan assembled near Shanitala, Old Motorstand area and was making preparation in his house for committing dacoity in any house within the East Agartala P.S. area or other places of Agartala city or its adjoining area and for that purpose, a meeting was organized in his house. The said information has been entered into the GD vide East Agartala P.S. GDE No. 13 of 2012 dated 21.9.2013. On receipt of the aforesaid information, he along with SI Rana Chattarjee, O/C MGB TOP, SI Manik Lal Deb, SI Sukanta Das and P.S. staff including women staff of East Agt. Women PS and TSR staff accompanied with SDPO (Sadar), Agt. left the police station at 21.05 hrs. While the police party was approaching towards the said location for cordoning the dwelling house of Amitabha Ghosh, the accused persons, namely, Amitabha Ghosh, Shyamal Das, Rajendra Das and Billal Miah and 8/9 others jumped out, those who were identified by the police party, and retreated from the back side of the said house, and started running and fleeing away. Accused Amitab Ghosh could not flee away and was captured by the police party by the side of the said house. On being searched at 21.30 hrs in the house of Amitabha Ghosh in presence of witnesses the police recovered one unloaded automatic 7.65 bore pistol along with five rounds live 7.65 cartridge and one iron made sharp bhujali which was in length about 18 inches including handle and under the pillow of his bed. Thereafter, those articles were seized and the accused Amitabha Ghosh was also arrested.

3. After investigation, the police filed the charge sheet in the aforesaid case against the five persons including the present petitioner wherein the investigating agency specifically stated that during investigation, all efforts were made to arrest another established accused person, namely, Sri Rajendra Das, the present petitioner, but could not be arrested. During the investigation, another 7/8 accused persons were found involved with this crime but their particulars could not be established. In the charge sheet, the I.O. also made a prayer to the court for custodial trial of the accused persons and also to issue warrant of arrest against the present petitioner as he was absconding at the time of investigation.

4. Mr. Biswas, learned senior counsel while urging for pre-arrest bail of the present petitioner would contend that the Court has the power to grant anticipatory bail under Section 438 Cr.P.C. as there is no restriction in regard to exercise the power of bail in a suitable case either by the court of Sessions or by the High Court, even when cognizance is taken or charge sheet is filed. In support of his aforesaid contention, he has placed reliance upon a judgment of the Apex Court in Bharat Chaudhary and anr. Vs. State of Bihar and anr., AIR 2003 SC 4662.

5. He further submits that other accused person, namely, Shyamal Das @ Shimul, against whom also similar allegation was made and was arrested in connection with the aforesaid P.S. case, was granted bail. Therefore, it would be proper for the court to grant bail to the present petitioner as he is similarly situated with the accused Shyamal. In support of his aforesaid contention, he has also placed reliance in Kamaljit Singh vs. State