Bench:
Dr. Arijit Pasayat and S.H. Kapadia, JJ.
Brief Facts:
A complaint was filed against the Appellant alleged for committing various offenses covered under Sections 406, 467, 468,471 and 420 of the Indian Penal Code, 1860, by the complainant Dayaram Das who was the President of Temple situated at 3C, Albert Road, Calcutta and manager of the premises at 22, Gurusaday Road, Calcutta appointed by the International Society for Krishna Consciousness (in short the 'ISKCON') Bureau. According to the appellant, he was betrayed and suspended by the Bureau from the post of President before the Complainant. In the matter of suo moto cognizance taken by the Chief Judicial Magistrate in terms of Section 156(3) CrPC, Police was directed to investigate after considering the petition of the complaint as FIR. Having failed to get any solution from the Civil Courts, the complainant filed an application under Section 438 CrPC, which was also rejected by way of the impugned order. The Appellant herein also submitted that the Appellant and his associates were victims of a conspiracy and litigation was already pending between the parties.
Contentions by the Respondent:
- The Respondent submitted that he cannot file an application for the exercise of power under Section 438 of the Code convicted for the offence he seeks bail, considering the serious nature of the allegations.
- The Respondent submitted that the Appellant had not been granted protection by Karnataka High Court.
Contentions by the Appellant:
- The Appellant submitted an application requesting protection under Section 438 CrPC .
- The Appellant in the present case submitted that the two of the accused persons have been granted protection in terms of Section 438 of CrPC, rejecting the application of the Appellant.
- The Appellant contended that according to the order passed by the Karnataka High Court, he is eligible to seek protection under Section 438 of the Code being a person apprehending arrest.
Issue before the Court:
Whether a Court can pass an interim order not to arrest the applicant, where an application under Section 438 of the Code is pending disposal?
Observations by the Court:
The facility which Section 438 of the Code provides is generally referred to as Anticipatory bail. The present case the Hon’ble Supreme Court rejected the application to seek protection under Section 438 of the Code, the only remedy available to the Appellant is to file an application in terms of Section 437 or 439 of the Code. The Court cannot restrain arrest of the Appellant under Section 438 of the Code considering Accused to be already apprehended. The Court stated that an application under Section 438 of the Code can be moved only by a person who has not already been arrested. Once he is arrested, his remedy under Section 438 of the Code is pinned.
