SALAUDDIN ABDULSAMAD SHAIKHversusTHE STATE OF MAHARASHTRA

A                  SALAUDDIN ABDULSAMAD SHAIKH
                                         v.
                      THE STATE OF MAHARASHTRA

                              DECEMBER 11, 1995

B      [A.M. AHMADI, CJ, S.C. SEN AND K.S. PARIPOORNAN, JJ.J

          Code of Criminal Procedure, 1973 :

           S. 438-Anticipatory bail-Grant of-Ordinarily the regular Coun which
C   is to deal with that panicular offence cannot be by- passed-Coun granting
    anticipatory bail should not substitute itself for the original Coun and the
    duration of the bail order should also be limited.

        The petitioner filed an application in the High Court under Section
  438 of the Code of Criminal Procedur., and secured an ad-interim an-
D ticipatory bail order which was to enure upto 26.9.1995. The High Court
  imposed certain conditions, one of which was that he will report at the
  Police Station every day till 25.9.1995. When the matter came up on that
  day for final disposal before the same judge, he directed the petitioner to
  move a regular bail application before the Court which was in seisin of the
E criminal case pending against him and observed that the bail application
  should be disposed of nninflnenced by the observations made in the earlier
  order of 13.9.1995. Against this order passed by the Single Jndge the
  present SLP has been filed.

          Disposing of the appeal, this Court
F
         HELD : 1. Anticipatory bail is granted in anticipation of arrest in
  non-bailable cases, bnt that does not mean that the regular conrt, which
  is to try the offender, is songht to be by- passed and that is the reason why
  the High Conrt very rightly fixed the outer date for the continuance of the
  bail and on tl1e date of its expiry directed the petitioner to move the regular
G court for bail. That is the correct procedure to follow because when the
  Court of Session or the High Court is granting anticipatory bail, it is
  granted at a stage when the investigation is complete and, therefore, it is
  not informed abont the nature of evidence against the alleged offende~-. It
  is, therefore, necessary that snch anticipatory bail orders shonld :.e of a
H limited duration only and ordinarily on the expiry of that d:tration or
                •.                        556
                         S.A. SHAIKH v. STATE                          557

extended duration the Court granting anticipatory bail should leave it to A
the regular Court to deal with the matter on an appreciation of evidence
placed before it after the investigation has made progress or the char-
gesheet is submitted. (558-B-D]

      2. An order of anticipatory bail could even be obtained in cases of
serious nature such as murder and, therefore, it is essential that the B
duration of that o_rder should be limited and ordinarily the Court granting
anticipatory bail should not substitute itself for the original Court which
is expected to deal with the offence. It is that Court which has then to
consider whether, having regard to the material placed before it, the
accused person is entitled to ilail. In the instant case, therefore, the High C
Court had followed the currect procedure and there is no reason to
interfere. (558-E-F]

      CRIMINAL AfPELLATE JURISDICTION : Special Leave Peti-
tion (CRL) No. 3628 of 1995.
                                                                             D
     From the fodgment and Order dated 26.9.95 of the Bombay High
Court in Crl. A No. 2230 of 1995.

      AS. Bhasme for the Petitioner.

      V.N. Ganpule and Shivaji M. Jadhav for the Respondents.                E
      The following Order of the Court was delivered :

       The petitioner filed an application in the High Court being Criminal
Application No. 2230/95 under Section 436 of the Code of Criminal Pro-
cedure and secured an ad-interim anticipatory bail order which was to F
enure upto 26.9.1995. The High Court imposed certain conditions, one of
which was that he will report at the Police Station every day till 25.9.1995.
The petitioner says that he has complied with each and every condition
imposed under that order. Be that as it may, it was an ad-interim order
which was to enure upto 26.9.1995. When the matter came up on that day
for final disposal before the same learned Judge, he directed the petitioner G
to move a regular bail ap_plication before the Court which was in seisin of
the criminal case pending against him and observed that the bail applica;
tion should be disposed of uninfluenced by the observations made in the
earlier order of U.9.1995. It is against this order passed by the learned
Single Judge of the High Court that this SLP is filed. We see no reason to H
   558                   SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A entertain this petition. Under section 438 of the Code of Criminal Proce-
  dure when any person has reason to believe that he may be arrested on an
  accusation of having committed a non- bailable offence, the High Court or
  the Court of Session may, if it thinks fit, direct that in the event of such
  arrest, he shall be released on bail and in passing that order, it may include
B such conditions having regard to the facts of the particular case as it may
  deem appropriate. Anticipatory bail is granted in anticipation of arrest in
  non-bailable cases, but that does not mean that the regular court, which is
  to try the offender, is sought to be by passed and that is the reason why
  the High Court very rightly fo<ed the outer date for the continuance of the
  bail and on the date of its expiry directed the petitioner to move the regular
C Court for bail. That is the correct procedure to follow because it must be
  realised that when the Court of Session or the High Court is granting
  anticipatory bail, it is granted at a stage when the investigation is incom-
  plete and, therefore, it is not informed about the nature of evidence against
  the alleged offender. It is, therefore, necessary that such anticipatory bail
D orders should be of a limited duration only and ordinarily on the expiry of
  that duration or extended duration the Court granting anticipatory bail
  should leave it to the regular Court to deal with the matter on an apprecia-
  tion of evidence placed before it after the investigation has made progress
   or the chargesheet is submitted. It should be realised that an order of
   anticipatory bail could even be obtained in cases of serious nature as for
E example murder and, therefore, it is essential that the duration of that
   order should be limited and ordinarily the Court granting anticipatory bail
   should not substitute itself for the original Court which is expected to deal
   with the offence. It is that Court which has then to consider whether, having
   regard to the material placed before it, the accused person is entitled to
F bail. In the instant case, therefore, the High Court had followed the correct
   procedure and we see no reason to interfere. However, Mr. Bhasme,
   learned counsel for the petitioner, states that since this Court had granted
   an interim order by which the duration of the order was extended he ha•
   not applied for bail before the regular Court. He may do so, if he so
   desires, within two weeks from today. The petition will stand disposed of
G accordingly.
     G.N.                                                   Petition disposed of