STATE REP. BY C.B.I.versusANILSHARMA

                              STATE REP. BY C.B.I.                                 A
                                          v.
                                  ANILSHARMA

                               ~EPTEMBER 3, 1997

                                                                                   B
                  (M.K. MUKHERJEE AND K.T. THOMAS, JJ.]

            Code of Criminal Procedure-Section 436-Anticipatory bail in a case
     of allegations of conuption-lf the suspected person is aware that he is well
     protected by pre-amst bail order, intmogation may not succeed in getting C
     valuable infonnation which is otherwise likely to be obtained-considerations
     for grant of anticipatory bail need not be the same as that for grant of bail
     after a"est.

           Prevention of Conuption Act, 198~Section 13(2).
                                                                                   D
           The respondent who was an MP, a former minister and the son of a
l    Union Minister was granted anticipatory bail by the High Conrt nnder
     Section 438 of the CrPC in a case·for an offence under Section 13(2) of the
     Prevention of Corruption Act. The C.B.I. appealed against the said order
     to this Court.
                                                                                   E
           Allowing the Appeal, the Court

             HELD : 1. The High Court has mis-directed itself in exercising the
      discretionary power under Section 438 of the Code by granting a pre-arrest
      bail order to the respondent. High Court has approached the issue as F
      though it was considering a prayer for granting regular bail after arrest.
      The Single Judge of the High Court reminded himself of the principle that
      "it is well-settled that bail and not jail is a normal Rule". Consideration
    · which should weigh with the Court while dealing with a request for an-
      ticipatory bail need not be the same as for an application to release on bail G
      after arrest. At any rate the Single Judge ought not have side-stepped the
~     apprehension expressed by the CBI (that respondent would influence the
      witnesses) as one which can be made against all accused persons in all
      cases. The apprehension was quite reasonable when considering the high
      position which respondent heid and in the nature of accusation relating to
      a period during which he held such office. [740-C, E-F]                       H
                                           737
    738                   SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R.

A        2. Custodial interrogation is qualitatively more elicitation oriented
  than questioning a suspect who is well ensconed with a favourable order
  under Section 438 of the Code. In a case like this effective interrogation of
  suspected person is of tremendous advantage in disinterring many useful
  informations and also materials which would have been concealed. Success
B in such interrogation would elude if the suspected person knows that be
  is well protected and insulated by a pre-arrest bail order during the time
  he is interrogated. Very often interrogation in such a condition would
  reduce to a mere ritual. The argument that the custodial interrogation is
  fraught with the danger of the person being subjected to third degree
  methods need not be countenanced, for, such an argument can be advanced
C by all accused in all criminal cases. The court has to presume that
  responsible Police Officers would conduct themselves in a rl:sponsible
  manner and that those entrusted with the task of disinterrring offences
  would not conduct themselves as offenders. (739-G-H, 740-A-B]

D        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    811of1997.
                               '
         From the Judgment and Order dated 4.11.96 of the Himachal
    Pradesh High Court in Cr!. M.P. No. 1217 of 1996.

E        K.N. Bhat, Additional Solicitor General, (Pallav Shishodia) for P.
    Parmeswaran, for the appellant.

        R.K. Jain, Vijay Bahuguna, Anis Suhrawardy, Rajesh Kumar, Ms.
    Shamana Anis, for the Respondent.

          The Judgment of the Court was delivered by
F
          THOMAS, J. Leave granted.

        This appeal is by the Central Bureau of Investigation ('CBI' for
  short) assailing the pre-arrest order granted by the High Court of
G Himachal Pradesh in favour of the respondent under section 438 of the
  Code of Criminal Procedure. Respondent was a former Minister of the
  Himachal Pradesh State Government and he held the office for about three
  years. Besides that, he is a Member of the Legislative Assembly of that
  State also. His father, (Sukhram) was Union Minister for Telecommunica-
  tions. CBI has been investigating a case against respondent for offence
H under Section 13(2) of the Prevention of Corruption Act, 1988 with the
          STATE REP. BYC.B.I. v. ANILSHARMA[THOMAS,J.]                  739

allegation that respondent had amassed wealth far in excess of his known A
sources of income. While the investigation was in progress respondent
approached the High Court of Himachal Pradesh for an order of an-
ticipatory bail. Over-ruling all the objections raised by the CBI, a learned
Single Judge of the High Court granted the order subject to the conditions
that respondent shall not go abroad without prior permission of the Court,
and shall surrender his passort to the CBI etc.                              B
       Accusations made against respondent, as at present, are inter alia,
that he. had acquired wealth to the tune of Rs. 16,65,000 as against his
known sources of income which could not reach even half of that. CBI
further alleges that the assets have been made by the respondent through C
illegal means and "there is clear-cut evidence pointing to the transfer of
assets by Shri Sukhram in the name of his son". According to the CBI,
respondent's is a clear case of coruption in high places and the order of
anticipatory bail should never have been granted in such a case.

       We heard Sri K.N. Bhat, Additional Solicitor General who argued D
for the CBI and Shri RK Jain, Senior Advocate who argued for the
respondeµt. We felt the need to go through the Case-Diary which was
made available to us in a sealed cover. We perused that. Additional
Solicitor General. contended that High Court has gone wholly wrong in
exercising the discretion in favour of the respondent. According to him, E
considering the responsible and high office which respondent held and the
wide influence which he could wield and the great handicap which inves-
tigating agency would be subjected to while interrogating a person armed
with an order of anticipatory bail, the discretion under Section 438 should
never have been exercised in favour of the respondent.
                                                                               F
       On the other hand Sri R.K. Jain, defending the order contended that
it is not proper for the Supreme Court to interfere with it as it was passed
by the High Court in exercise of a discretionary power.

       We find force in the submission of the CBI that custodial interroga- G
tion is qualitatively more elicitation orientated than questioning a suspect
who is well ensconced with a favourable order under Section 438 of the
Code. In a case like this effective interrogation of suspected person is of
tremendous advantage in disinterring many useful informations and also
materials which would have been concealed. Success in such interrogation
would elude if the suspected person knows that he is well protected and H
    740                    SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A insulated by a pre-arrest bail order during the time he is interrogated. Very
    often interrogation in such a condition would reduce to a mere ritual. The
    argument that the custodial interrogation is fraught with the danger of the
    person being subjected to third degree methods need not be countenanced,
    for, such an argument can be advanced by all accused in all criminal cases.
    The Court has to presume that responsible Police Officers would conduct
B   themselves in a responsible manner and that those entrusted with the task
    of disinterring offences would not conduct themselves as offenders.

          High Court has aproached the issue as though it was considering a
    prayer for granting regular bail after arrest. Learned Single Judge of the
C   High Court reminded himself of the principle that "it is well-settled that
    bail and not jail is a normal Rule" and then observed thus :

              "Unless exceptional circumstances are brought to the notice of the
              Court which may defeat the proper investigation and fair trial, the
              Court will not decline bail to a person who is not accused of an
D             offence punishable with death or imprisonment for life, in the
              present case, no such exceptional circumstances have been brought
              to the i;iotice of this Court which may defeat proper investigation
              to decline bail to the applicant."

E         The above observations are more germane while considering .an
    application for post-arrest bail. Consideration which should weigh with the
    Court while dealing with a request for anticipatory bail need not be the
    same as for an application to release on bail after arrest. At any rate
    learned Single Judge ought not have side-stepped the apprehension ex-
    pressed by the CBI (that respondent would influence the witnesses) as one
F   which can be made against all accused persons in all cases. The apprehen-       .,..
    sion was quite reasonable when considering the high position which
    respondent held and in the nature of accusation· relating to a period during
    which he held such office.

          After bestowing our anxious consideration, including a perusal of the
G Case-Diary file, we definitely feel that the High Court has mis-directed
    itself in exercising the discretionary power under Section 438 of the Code
    by granting a pre-arrest bail order to the respondent. We, therefore, upset
    the impugned order. The appeal is allowed accordingly..

     I.M.A.                                                     Appeal allowed.