1 June 2020


High Court of Sikkim

Sumantra Gupta Vs. State of Sikkim




Bail cannot be granted, if it appears considering the antecedents of Applicant, that by taking advantage of anticipatory bail order, he will flee from justice

In present case, learned Senior Advocate for the Applicant apprehends imminent arrest in view of the lodgment of First Information Report for alleged offences committed by unknown person under Sections 419, 468, 471, 420, 120B of the Indian Penal Code, 1860 (IPC) as well as Sections 66 (C) and 66(D) of the Information Technology Act, 2000 (IT Act).

Emphasizing the need to preserve the personal liberty of the Applicant, the learned Senior Counsel submitted that, the Applicant was not involved in any crime for which punishment prescribed was death or imprisonment for life. He submitted that, the co-accused had already been granted regular bail.

As held by the Constitutional Bench of the Supreme Court in Shri Gurbaksh Singh Sibbia and Ors. vs. State of Punjab, Section 438 of the Code of Criminal Procedure, 1973 (CrPC) which is concerned with personal liberty cannot be whittled down by reading restrictions and limitation into it. In order to meet the challenge of Article 21 of the Constitution of India, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable.

The Constitutional Bench noticed that, the CrPC did not contain any specific provision corresponding to the present Section 438 CrPC. It was also noticed that, the Law Commission of India, in its 41st report pointed out the necessity of introducing a provision for grant of anticipatory bail. The necessity for granting anticipatory bail, it was observed in the report arose mainly because sometimes influential persons try to implicate their rivals in getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, these tendencies were showing signs of steady increase. It was observed that apart from false cases, where there are reasonable grounds for holding that, a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. It was observed that it would not be practicable to lay down conditions under which alone anticipatory bail could be granted and Superior Courts would undoubtedly exercise their discretion properly.

The Constitutional Bench of the Supreme Court also held that on the other hand, if it appears likely, considering the antecedents of the Applicant, that taking advantage of the order of anticipatory bail he will flee from justice such an order would not be made.

This Court is strongly of the opinion that, present is therefore not a fit case for exercising discretion under Section 438 of CrPC in favour of the Applicant. It does not sound to reason to arm the Applicant with anticipatory bail, when pitted against such grave allegation of defrauding young medical aspirants with the lure of admission in SMIMS.

The materials collected by the investigating agency so far placed for perusal before present Court does reflect prima facie involvement of the Applicant in the offences alleged. The lodging of more than one FIR for commission of similar offences for different periods of time also reflects accusation of repeated commission of similar offences. The question of granting anticipatory bail does not arise. The application for anticipatory bail is rejected.


Shri Gurbaksh Singh Sibbia and Ors. vs. State of Punjab MANU/SC/0215/1980

Tags : Anticipatory Bail Grounds Entitlement

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