The Constitution Bench of Apex Court in the case of
Gurbaksh Singh Vs. State of Punjab, AIR 1980 SC 1632 has
considered several aspects to be considered while considering the
application for anticipatory bail and in paragraph 35 has held that
filing of FIR is not a condition precedent to exercise power under
Section 438 of Cr.P.C. The Apex Court has further held that
imminence of likely arrest founded on a reasonable belief can be
shown to exist even if an FIR is not yet filed.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO. 58 OF 2012
Shri Sahajanand Investments Pvt.
Versus
1. State of Goa,
CORAM :- A. P. LAVANDE, J.
DATE : 12th October, 2012
2. Rule. By consent heard forthwith.
3. By these Writ Petitions, the petitioner takes exception to the
part of the orders dated 22.5.2012 passed by Additional Sessions
Judge, Mapusa in Anticipatory Bail Application Nos. 156/2012,
157/2012, 158/2012 and 159/2012 by which the respondent no.1
herein has been directed to give notice of 48 hours in case crime is
registered against respondent no.2.
4. On 18.4.2012, the petitioner herein lodged report at Panaji
Police Station alleging commission of offence punishable under
Section 420 read with Section 34 of I.P.C. against respondent no.2 in
all the Writ Petitions. Apprehending arrest, respondent no.2 in each
of these Writ Petitions filed Anticipatory Bail Applications
No.156/2012, 157/2012, 158/2012 and 159/2012 before Sessions5
Court, North Goa, Panaji which were made over to Additional Sessions
Judge, Mapusa.
5. Say was filed in each of the anticipatory bail applications on
behalf of respondent no.1 stating that though report alleging
cheating, fraud and forgery had been lodged by the petitioner herein,
no FIR was registered.
6. In view of the statement made, learned counsel for
respondent no.2 herein submitted before the Additional Sessions
Judge, Mapusa that he may be given prior notice in case crime was
registered, in order to enable respondent no. 2 to move the Court for
anticipatory bail.
7. Learned Additional Sessions Judge, Mapusa, while disposing
of anticipatory bail application made the following observations in the
orders passed disposing of the four applications.
“In the background since no crime is registered,
application stands dismissed. The respondent, however,
shall give notice for 48 hours in case crime is registered,
so as to enable the applicant to move the Court.”6
8. It is the case of the petitioner that thereafter, the petitioner
filed an application under Section 156(3) of Cr.PC. in the Court of
Judicial Magistrate, First Class, Panaji alleging commission of
aforesaid offences by respondent no.2 in each of the above petitions.
In the event an order on the application under Section 156(3) of
Cr.P.C. is passed by the Magistrate, investigating officer will not be
able to arrest respondent no. 2 without giving notice in view of the
order passed by the Additional Sessions Judge in the aforesaid
anticipatory bail applications. Therefore, he has locus to file the
present petitions.
9. Mr. R. De Sa, placed reliance upon the Judgment in the
case of Union of India Vs. Padam Narain Aggarwal and others, (2008)
12 SCC 305 and submitted that while disposing of anticipatory bail
applications the Judge could not have directed the investigating
agency to give notice of 48 hours in case crime was registered.
10. Ms. M. Pinto, learned Additional Public Prosecutor
appearing for respondent no.1 and Mr. S. Dessai, learned Counsel for
respondent no. 2 fairly conceded that the learned Additional Sessions
Judge could not have passed the part of the order which has been
impugned in the present petitions. 7
11. The Constitution Bench of Apex Court in the case of
Gurbaksh Singh Vs. State of Punjab, AIR 1980 SC 1632 has
considered several aspects to be considered while considering the
application for anticipatory bail and in paragraph 35 has held that
filing of FIR is not a condition precedent to exercise power under
Section 438 of Cr.P.C. The Apex Court has further held that
imminence of likely arrest founded on a reasonable belief can be
shown to exist even if an FIR is not yet filed.
12. In the case of Padam Narain Aggarwal, the Apex Court has
set aside the direction given by the High Court to Customs Authorities
that the respondent shall not be arrested without 10 days prior
notice on the ground that such a direction is patently illegal.
13. In my view, the ratio of the judgment in the case of Padam
Narain Aggarwal is squarely applicable to the present case.
Therefore, the submission made by Mr. R. De Sa, on behalf of the
petitioner and concession made on behalf of the respondents deserve
to be accepted.
14. In view of the above, the part of the order reproduced in8
paragraph seven herein above passed by learned additional
Sessions Judge in Anticipatory Bail Applications Nos. 156/2012,
157/2012, 158/2012 and 159/2012 directing the respondent no.1
herein to give notice of 48 hours in case crime is registered, so as to
enable the applicant to move the Court, is set aside.
15. Considering the importance of the issue involved, I deem it
appropriate to direct Registry of this Court to send copies of this
order to the Principal District and Sessions Judges, North Goa and
South Goa who shall circulate a copy of the same to the Additional
Sessions Judges functioning in their respective jurisdiction.
16. All the Writ Petitions stand disposed of in the aforesaid
terms.
A. P. LAVANDE, J.
vn*
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