In Re: Devadoss and Others

Maheswaran, J.—These petitions are under S. 438 of the Code of Criminal Procedure for grant of anticipatory bail.; The petitioners are

concerned in the commission of non-bailable offence under the Tamil Nadu Prohibition Act. It is contended for the prosecution by the learned

Public Prosecutor that the provisions of S. 438, Crl. P.C. are required to be utilized when the prosecution agency misdirects or attempts to

oppress or harass innocent persons for political or other reasons and that having regard to the amended provisions of the Tamil Nadu Prohibition

Act, it would not be proper to release prohibition offenders on anticipatory bail. The learned Public Prosecutor further contended that the power

under S. 438, Crl. P.C. are not to be exercised mechanically but only on the satisfaction of the conditions laid in the section itself. He invited my

attention to Gurbaksh Singh Sibia v. State of Punjab AIR 1973 P&H. The learned Judges of the Full Bench are of the view that the power under

S. 438, Cr. P.C. is of an extraordinary character and must be exercised sparingly in exceptional cases only, and that in addition to the limitations

imposed in S. 437, Cr. P.C, the petitioner must further make out a special case for the exercise of the power to grant anticipatory bail and that

mere allegations of mala fides in the petition are inadequate and the Court must be satisfied on materials before it that the allegation of mala fides

are substantial and the accusation appears to be false and groundless. The learned P.P. further pointed out that he is concerned only with the

propriety of the order being made under S. 438, Cr. P.C. in respect of offences committed under the Tamil Nadu Prohibition Act. A reading of S.

438, Cr. P.C. shows that there are only two conditions which must exist before a petitioner can move an application under S. 438, Cr. P.C. They

are: (i) there must exist a ground that the petitioner has reason to believe that he may be arrested, and (ii) there must be an accusation of his having

committed a non-bailable offence. There are no other grounds. It is therefore plain and clear that there is no legal bar to apply for anticipatory bail

in respect of offences under the Tamil Nadu Prohibition Act. In my view to hold that it would not be proper to grant anticipatory bail in cases

arising under Tamil Nadu Prohibition Act would render the material provisions of S. 438, Cr. P.C. virtually nugatory, I am also unable to locate

any provision in the section itself which either in terms or by necessary implication bars an application for anticipatory bail in respect of crimes

committed under the Tamil Nadu Prohibition Act. I am therefore of the view that the petitioners can maintain applications under S. 438, Cr. P.C.

for the offences committed under the Tamil Nadu Prohibition Act.

The learned Public Prosecutor next contended that the petitioners in addition to the limitations imposed by S. 437, Cr. P C. must make out a

special case for the exercise of power to gram anticipatory bail and that mere general allegations of mala fide in the Petition are inadequate. It is no

doubt true hat the Full Bench ruling of the High Court of Punjab and Haryana (Gurbaksh Singh Sibia v. State of Punjab 1968 1S.C.W.R. 445 lays

down that the petitioner must make out a special case for the exercise of the power under S. 438, Cr. P.C. and that the allegation of mala fides

should be more substantial and the accusation should appear to be false and groundless. The object of introducing a provision for anticipatory bail

and the advisability of granting such bail can be seen from the 41st report of the Law Commission. The Report runs thus:

The necessity for granting anticipatory bail arises mainly - because sometimes influential persons try to implicate their rivals in false causes for the

purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political

rivalry. this tendency is showing signs of steady increase. Apart from false case, where there are reasonable grounds for holding that a person

accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail there seems no justification to require him first to submit

to custody, remain in prison for some days and then apply for bail.

It is therefore clear from these observations of the Commission that one of the categories of cases for the grant of anticipatory bail is the one where

there are reasonable grounds for holding that the person accused of an offence is not likely to abscond or otherwise misuse his liberty while on bail.

In the present case, the offences are under the Tamil Nadu Prohibition Act. Some are for possession or transport of prohibited liquor. It has not

been argued on behalf of the State that the petitioners are likely to abscond or otherwise misuse their liberty while on bail. It is no doubt true that

the petitions contain only general allegations which are usually made for grant of bail under S. 437, Cr. P.C. It is no doubt true that they are not

sufficient; but taking into account the nature of the offence committed and the fact that all the petitioners except the petitioner in Crl. M.P. No.

4059 of 1979 are first offenders, I am of the view that the petitioners except the petitioner in Crl. M.P. No. 4059 of 1979 can be enlarged on

anticipatory bail. Accordingly all the petitions except petition No. 4059 of 1979 are allowed. Crl. M.P. No. 4059 of 1979 is dismissed.