Dr. Arijit Pasayat and S.H. Kapadia, JJ.
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.
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?
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.