Full Judgment
M.M. Das, J.
1. Heard learned Counsel for the petitioner and the learned Counsel for the Vigilance Department.
2. It appears that no formal FIR has been lodged in the present case. But the Vigilance Department on obtaining the order from the appropriate authority, has caused raid over the house of the petitioner in order to assess as to whether he has acquired assets which is disproportionate to his known source of income.
3. Mr. Mohapatra, learned Counsel for the Vigilance Department submits that this is a primary stage of the case where enquiry is being conducted and only after it is found that the petitioner has acquired assets which is disproportionate to his known source of income, then an FIR will be lodged and regular investigation will be commenced.
4. Learned Counsel for the petitioner, on the other hand, relying upon decision in the case of Biswamitra Majhi and Anr. v. State of Orissa (2005) 30 OCR 560 of a learned Single Judge of this Court, submits that in the said case, placing reliance on the decision in the case of Gurbaksh Singh Sibbia etc. v. The State of Punjab : 1980 CriLJ1125 , this Court held that even if an FIR has not been lodged, an application for anticipatory bail can be maintained and taking that into consideration in the said decision, this Court directed that in the event an FIR is lodged and a case is registered in connection with the enquiry, the petitioner shall surrender before the learned Chief Judicial Magistrate and move for bail whereupon he shall be released on bail on such terms and conditions to be fixed by the learned Chief Judicial Magistrate.
5. In the case of Gurbaksh Singh (supra), the Supreme Court while examining the maintainability of an application under Section 438(1) Cr.P.C. categorically held that the applicant must show that he has reason to believe that he may be arrested for a non-bailable offence. The use of the expression 'reason to believe' shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively, because it is then alone that Court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1) Cr.P.C., therefore, cannot be invoked on the basis of vague and general allegations as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. The Supreme Court has further held that if an application for anticipatory bail is made to the High Court or Court of Session, it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 as and when an occasion arises.
6. It appears from the decision of this Court in the case of Biswamitra Majhi and Anr. (supra) that this Court after taking into consideration the ratio of the aforesaid decision of the Apex Court and applying the same to the facts of the said case found that the petitioner in the said case had reason to believe of being arrested for commission of a non-bailable offence and, therefore, passed appropriate direction in that regard as already stated above.
7. However, on considering the facts of the present case, I find that no doubt a raid has been made on the house of the petitioner to enquire as to whether the petitioner has acquired assets disproportionate to his known source of income. But acquiring assets disproportionate to his known source of income, of a person is an offence under Section 13(1)(e) of the Prevention of Corruption Act, 1988 and the said provision stipulates that a public servant is said to commit the offence of criminal misconduct if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account of pecuniary resources or property disproportionate to his known sources of income.
(emphasis supplied)
The provision, therefore, clearly states that an offence thereunder can be said to have been committed only when a person accused of commission of such offence fails to satisfactorily account for the same. In other words, the said section provides for a scope to the accused to account for the assets which are found to be in his possession at any time during the period of his office. As such, in such a case, there is every scope for the accused to know when a formal FIR is lodged against him for commission of the above offence.
9. In view of the above and in consideration of the observation of the Supreme Court in the case of Gurbaksh Singh Sibbia etc. (supra), I am of the view that in the present case, neither any material has been brought out before this Court to show that there is allegation of commission of non-bailable offence by the petitioner nor any material to show that the petitioner has reason to believe that he may be arrested for such non-bailable offence. The apprehension, if any, of the petitioner in the present case, can be termed to be a 'fear' and not 'belief', more so, when, no formal FIR has been drawn up against him and the case is in enquiry stage. I, therefore, hold that this application is not maintainable at this stage.
The BLAPL is accordingly dismissed.
It is, however, observed that the petitioner is at liberty to move the appropriate authority in the event an FIR is registered against him for commission of non-bailable offence.