IMPORTANT POINT
The salutary provision contained in Section 438 Cr.P.C. was introduced to enable the Court to prevent the deprivation of personal liberty. It can not be permitted to be pettitioned on technicalities such as “the challan having been presented,anticipatory bail cannot be granted.”
2. The anticipatory bail can be granted at any time so long as the applicant has not been arrested.

Headnote:Criminal Procedure Code,1973 – Section 438 – Application for grant of Anticipatory Bail by appellant – Rejected for the third time by High Court – Challenge thereagainst – Approach adopted by High Court was wholly erroneous – The application for anticipatory bail had been rejected without considering the case of the appellant solely on the ground that challan had now been presented – The salutary provision contained in Section 438 Cr.P.C.was introduced to enable the Court to prevent the deprivation of personal liberty- It could not be permitted to be pettitioned on technicalities such as “the challan having been presented anticipatory bail cannot be granted”- When the application is made to the High Court or Court of Sessions it must apply its own mind on the question and decide when the case is made out for granting such relief – High Court ought not to have left the matter to the Magistrate only on ground that the challan has now been presented- There was also no reason to deny anticipatory bail merely because allegation in this case pertained to cheating or forgery of a valuable security – High Court committed a serious error of law in not applying its mind to the facts and circumstances of this case – High Court is required to exercise its discretion upon examination of the facts and circumstances and to grant anticipatory bail “if it thinks fit”- High Court erred in not considering the application for anticipatory bail in accordance with law – The defence put forward by appellant could not be obliterated at this stage itself – Submission of appellant that dispute was purely of a civil nature could not be brushed aside at this stage – Anticipatory bail granted to the appellant in the case pending on the basis of FIR registered under Section 420, 467, 468, 120 – B IPC now pending only under Section 420 and 120-B IPC – Impugned order set aside – Appeal allowed. (Paras 8 to 12)
       Facts of the Case :
        Application for grant of Anticipatory Bail by appellant was Rejected for the third time by High Court herein in the instant case.
        2. Present appeal has been filed against said order.
       Findings of the Court :
        Approach adopted by High Court was wholly erroneous. The application for anticipatory bail had been rejected without considering the case of the appellant solely on the ground that challan had now been presented.The salutary provision contained in Section 438 Cr.P.C.was introduced to enable the Court to prevent the deprivation of personal liberty. It could not be permitted to be jettisoned on technicalities such as “the challan having been presented anticipatory bail cannot be granted”. High Court erred in not considering the application for anticipatory bail in accordance with law. The defence put forward by appellant could not be obliterated at this stage itself. Submission of appellant that dispute was purely of a civil nature could not be brushed aside at this stage. Anticipatory bail granted to the appellant in the case pending on the basis of FIR registered under Section 420, 467, 468, 120-B IPC now pending only under Section 420 and 120-B IPC. Impugned order was set aside .Appeal allowed.

ORDER

Surinder Singh Nijjar, J. —

1. Leave granted.

2. The application filed by the appellant seeking anticipatory bail has been rejected for the third time by the High Court of Rajasthan, Jaipur Bench. On the basis of the complaint made by one Karan/Karani Singh an FIR has been registered against the appellant i.e. FIR No.107/2007 dated 3.5.2007 Jaipur City, Police Station Vidhyadhar Nagar under Section 420, 467, 468, 120-B IPC. It is alleged that the complainant agreed to purchase the flats being Flat Nos.101 and 101A from the appellant and his father the necessary consideration was received by the accused Nos. 1 and 2. The same flats were subsequently sold to somebody else. It is, therefore, alleged that the appellant has committed offences under Section 420, 467, 468, 120-B IPC. Amar Nath Saxena (father of the Appellant); the Appellant i.e., Ravindra Saxena; Shrimati Sharada Devi and Pradeep Maheshwari and accused numbers 1 to 4 in the FIR. According to the appellant the investigation in the FIR was taken over by Samunder Singh, ASI, who happened to be a close relative of the complainant. Therefore, the criminal process is being abused at the instance of the investigating officer.

3. At the time of the hearing of the matter the learned counsel for the appellant pointed out that the father of the complainant is a retired police officer. The complainant is a property dealer. The parties are well known to each other. They have commercial transactions with each other. In fact, the criminal complaint has been filed in order to pressurize the appellant for not to pursue the civil litigation pending between the parties. The complainant has already filed a suit for specific performance on 07.5.2007 on the same cause of action. Since, the appellant was being pressurized to compromise in the civil litigation he filed an application for anticipatory bail. He also filed the complaint in the Bar Council of Rajasthan against some Advocates who had been compelling the appellant. Even then Session Judge rejected his application for anticipatory bail on 13.07.2007.

4. Thereafter, on the basis of a complaint made by Amarnath Saxena, FIR being No.207/2007 dated 2.08.2007 has been registered against the Karni Singh and others at Police Station Sadar, Jaipur, under Section 448, 456, 457, 420, 467, 468, 471, 380, 120-B IPC.

5. Being unsuccessful before the Sessions Judge, the appellant moved an application for anticipatory bail before the High Court in the earlier case, which was dismissed by the High Court, as well on 13.08.2007. The appellant also sought quashing of the FIR in a petition filed under Section 482 Cr.P.C. before the High Court of Rajasthan. This was also rejected by the High Court. The appellant again moved application for anticipatory bail which was rejected by the High Court on 24.03.2008. Therefore, the appellant approached this Court by way of petition for special leave to appeal, which was disposed of on 12.2.2009 with the following order:

.“This special leave petition is filed against an order of the High Court dismissing the second bail application of the petitioner under Section 438. Cr.P.C.

On the prayer of Mr. S.K. Jain, learned counsel appearing for the petitioner, the special leave petition is dismissed as withdrawn with liberty to the petitioner to apply for third bail application before the High Court. If such an application for bail is moved the concerned Court shall decide it on the same day.”

6. In view of the above, the appellant moved the third application for anticipatory bail. This has again been dismissed by the High Court with the following observations:

“In the facts and circumstances, therefore, the case of the petitioner cannot said to have improved with the filing of the challan against him when prima facie case has been found against the accused petitioner.”

7. We are of the considered opinion that the approach adopted by the High Court is wholly erroneous. The application for anticipatory bail has bee

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2009 Supreme(SC) 1836

2009(8) Supreme 225SUPREME COURT OF INDIATarun Chatterjee and Surinder Singh Nijjar, JJ. Ravindra Saxena — AppellantversusState of Rajasthan — RespondentCriminal Appeal No. 2406 of 2009(arising out of SLP(Crl.)No.2663 of 2009)Decided on : 15-12-2009

Cases Referred (1)

2009(8) Supreme 225
SUPREME COURT OF INDIA
Tarun Chatterjee and Surinder Singh Nijjar, JJ.
Ravindra Saxena — Appellant
versus
State of Rajasthan — Respondent
Criminal Appeal No. 2406 of 2009
(arising out of SLP(Crl.)No.2663 of 2009)
Decided on : 15-12-2009