Smt. Bijali Shat and Others vs The State of West Bengal

Heard learned counsel for the petitioners as well as Mr. S. Moitra, learned Addl. P.P. for the State.

This is an application for granting anticipatory bail to the petitioners. namely. Smt. Bijali Shat. Kakali Shat and Monica Kanthal as they apprehend that they may be arrested by the police in connection with Goghat P.S. Case No. 2 dated 4.1.99 under sections 498A, 323, 379, 406. 504 and 506(2) IPC.

In course of hearing learned Addl. P.P. contended that in view of the decisions of the apex Court in Salauddin Abdulsamad Shaikh v. State of Maharashtra. 1996 Cal Cri LR 130 and in K.L.Verma v. State 1997 Cal Cri Lr 88, High Court or the Court of Session has no power u/s 438 Cr PC to grant anticipatory bail without limiting operation of the order to a short period. In other words, he contended that if the Court decides to grant anticipatory ball, it should be granted for specific period of time on expiry of which the applicant u/s 438 Cr PC must surrender before the Magistrate and shall ask for regular bail and thereupon such Court shall decide whether regular bail should be granted to the accused or not.

But in view of the decision of the Constitution Bench decision of the apex Court in Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, , it is really doubtful if aforesaid is the ratio actually laid down by the apex Court in the Salauddin''s and K.L.Verma''s case. Apart from that, decision of the apex Court in Gurbax Singh''s case was given by the Largest Bench thereof so far on the aforesaid question. Therefore, no other decision of the apex Court or of this Court is binding upon us so long as decision in Gurbax Singh''s case is not overruled by a still larger Bench of the Supreme Court.

Constitution Bench of the Supreme Court in Gurbax Singh''s case held in paragraph 38 of the aforesaid report that "should the operation of an order passed u/s 438(1) be limited in point of time? Not necessarily. The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such case be directed to obtain order of bail u/s 437 or 439 of the Code within a reasonably short period after filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time."

It further appears to us that aforesaid decision of the Constitution Bench of the Supreme Court in Gurubax Singh''s case has not yet been overruled by any larger Bench of the same Court and hence nothing to the contrary is binding upon us. No other decision/observation rendered by any smaller Bench of the apex Court or of this Court to the contrary can have binding effect upon us.

Aforesaid being the legal position and after considering the materials placed before us, we are of the view that this petition for anticipatory bail should be allowed without limiting any period of time during which such order should remain operative. It is of course needless to mention here that even if any order for anticipatory bail is passed without giving any time limit, such order is always subject to any bailable warrant of arrest that may be issued by the concerned Magistrate in accordance with sub-section (3) of section 438 Cr.PC after he takes cognizance in the matter.

We, therefore, allow this petition and make the interim order dated 4.5.99 absolute.

Petition is thus disposed of.

Petition disposed of