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High CourtsDivision Bench(1991) 09 GAU CK 0002

Mrs. Neeli Mazumdar vs State of Assam

Gauhati High Court · Decided on 27 September 1991 · Citation: (1991) 2 GLR 295

HON’BLE JUDGES
U.L. Bhatt, C.J · B.P. Saraf, J
CASE NUMBER
Criminal Original Application No. 82 of 1990

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Judgment

4 paragraphs · 426 words

U.L. Bhat, C.J.—This is an application filed on behalf of three persons apprehending arrest in connection with a case registered against them for the offences under Sections 147, 333, 342, 418 and 420 I.P.C. We find that on 19.2.90 a learned single Judge before whom the case came up for consideration passed an interim order directing that they shall not be arrested in connection with the case, namely, case No. 102 of 1990 of Dispur Police Station. Learned Public (sic), Mr. A.C. Buragohain, pointed out that this order is not in terms of Section 438 of the Code of Criminal Procedure, 1973. We are inclined to agree with this submission.

2.

The heading of Section 438 Code of Criminal Procedure reads "Direction for rant of bail to person apprehending arrest". According to Sub-section (1) "when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence he may apply to the High Court or Court of Sessions for a directly under this section" and that Court "may, if it thinks fit, direct that the event of such arrest, he shall be released on bail." The High Court or the Court of Sessions may in appropriate cases issue (sic) direction as contemplated u/s 438 Code of Criminal Procedure The directly cannot be for preventing arrest or restraining arrest. An order (sic) preventing or restraining arrest is outside the purview of Section 438 Code of Criminal Procedure The Court has no jurisdiction to pass such and order either final or interim, u/s 438 of the Code. Such as order is contrary to the very purport of Section 438. Any order passed under the section can take effect only on arrest, that is, immediately after an arrest. It cannot take effect before arrest or (sic) restraint of arrest. The interim order passed is contrary to law and therefore, we vacate it.

3.

However, we are satisfied in the facts and circumstances mentioned in the petition that we should issue an order in term of Section 438 of the Code. We, therefore, dispose of the application directing that in case Shri Pradip Mazumdar and Shri (sic) Mazumdar, both sons of Shri Bijoy Krishna Mazumdar and Sankar Dey, son of Bharat Dey, or any one of them, is arrested in connection with case No. 102 of 1990 of Dispur Police Station, they (sic) he, as the case may be, shall be released on bail on execution of a bond of Rs. 2000/- (Rupees two thousand only).

4.

The petition is disposed of.