REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2406 OF 2009

(arising out of SLP(Crl.)No.2663 of 2009)

RAVINDRA SAXENA ….APPELLANT(S)

VERSUS

STATE OF RAJASTHAN ……RESPONDENT (S)

O R D E R

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 pressurise

the appellant for not to pursue the civil litigation pending

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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

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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

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application for anticipatory bail has been rejected without

considering the case of the appellant solely on the ground that

the challan has now been presented.

8.We may notice here that the provision with regard to the

grant of anticipatory bail was introduced on the

recommendations of the Law Commission of India in his 41

st

Report dated 24.09.1969. The recommendations were

considered by this Court in a Constitution Bench decision in

the case of Gurbaksh Singh Sibbia and others vs. State of

Punjab, (1980) 2 SCC 565. Upon consideration of the entire

issue this Court laid down certain salutary principles to be

followed in exercise of the power under Section 438 Cr.P.C. by

the Sessions Court and the High Court. It is clearly held that

the anticipatory bail can be granted at any time so long as the

applicant has not been arrested. 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. In our opinion, the High Court ought

not to have left the matter to the Magistrate only on the

ground that the challan has now been presented. There is also

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no reason to deny anticipatory bail merely because the

allegation in this case pertains to cheating or forgery of a

valuable security. The merits of these issues shall have to be

assessed at the time of the trial of the accused persons and

denial of anticipatory bail only on the ground that the challan

has been presented would not satisfy the requirements of

Sections 437 and 438 Cr.P.C.

9.In our opinion, the High Court committed a serious error

of law in not applying its mind to the facts and circumstances

of this case. The High Court is required to exercise its

discretion upon examination of the facts and circumstances

and to grant anticipatory bail “if it thinks fit”. The aforesaid

expression has been explained by this Court in Gurbaksh

Singh’s case (supra) as follows:

“The expression “if it thinks fit”, which occurs in

Section 438(1) in relation to the power of the High

Court or the Court of Session, is conspicuously

absent in Section 437(1). We see no valid reason for

rewriting Section 438 with a view, not to expanding

the scope and ambit of the discretion conferred on

the High Court and the Court of Session but, for the

purpose of limiting it. Accordingly, we are unable to

endorse the view of the High Court that anticipatory

bail cannot be granted in respect of offences like

criminal breach of trust for the mere reason that the

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punishment provided therefor is imprisonment for

life. Circumstances may broadly justify the grant of

bail in such cases too, though of course, the court is

free to refuse anticipatory bail in any case if there is

material before it justifying such refusal.”

10.The salutary provision contained in Section 438 Cr.P.C.

was introduced to enable the Court to prevent the deprivation

of personal liberty. It cannot be permitted to be jettisoned on

technicalities such as “the challan having been presented

anticipatory bail cannot be granted”. We may notice here some

more observations made by this Court in the case of Gurbaksh

Singh (supra) :

“We find a great deal of substance in Mr

Tarkunde’s submission that since denial of bail

amounts to deprivation of personal liberty, the court

should lean against the imposition of unnecessary

restrictions on the scope of Section 438, especially

when no such restrictions have been imposed by

the legislature in the terms of that section. Section

438 is a procedural provision which is concerned

with the personal liberty of the individual, who is

entitled to the benefit of the presumption of

innocence since he is not, on the date of his

application for anticipatory bail, convicted of the

offence in respect of which he seeks bail. An over-

generous infusion of constraints and conditions

which are not to be found in Section 438 can make

its provisions constitutionally vulnerable since the

right to personal freedom cannot be made to depend

on compliance with unreasonable restrictions. The

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beneficent provision contained in Section 438 must

be saved, not jettisoned. No doubt can linger after

the decision in Maneka Gandhi, that in order to

meet the challenge of Article 21 of the Constitution,

the procedure established by law for depriving a

person of his liberty must be fair, just and

reasonable. Section 438, in the form in which it is

conceived by the legislature, is open to no exception

on the ground that it prescribes a procedure which

is unjust or unfair. We ought, at all costs, to avoid

throwing it open to a Constitutional challenge by

reading words in it which are not to be found

therein.”

11.In our opinion, the High Court erred in not considering

the application for anticipatory bail in accordance with law.

The defence put forward by the appellant cannot be obliterated

at this stage itself. We are also of the opinion, that the

submission of the learned counsel for the appellant that the

dispute herein is purely of a civil nature cannot be brushed

aside at this stage. We, therefore, grant anticipatory bail to the

appellant in the case pending on the basis of FIR No.107/2007

registered at Police Station Vidhyadhar Nagar, Jaipur City

under Section 420, 467, 468, 120-B IPC now pending only

under Section 420 and 120-B IPC. It is directed that in the

event of arrest the appellant shall be released on bail to the

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satisfaction of the Investigating Officer. It is also directed that

the appellant shall join investigation as and when required.

12.The impugned order is set aside and the appeal is

allowed.

..……….………………………. J

(TARUN CHATTERJEE)

..……………………………

……J

(SURINDER SINGH NIJJAR)

NEW DELHI

DECEMBER 15 , 2009

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