ORDER
K. Hema, J.
1. Can an application under Section 438 of the Code of Criminal Procedure Code ('the Code', for short) for anticipatory bail be permitted to be withdrawn?
2. According to prosecution, petitioner's husband (A9) was the President of a Bank and he is an active politician also. In pursuance of criminal conspiracy hatched among him and various accused including petitioner (A21), an amount of Rs. 75 lakhs (which is more than the permissible limit of loan which could be sanctioned by the Bank) was advanced to petitioner's firm, on the strength of mortgage by deposit of title. Thereafter, the title deeds which were deposited in Bank were clandestinely taken out by the accused from the Bank, and properties covered by the deeds were sold. The President, Secretary, other office bearers of the Bank and loanees criminaly conspired to commit offences of misappropriation, forgery, falsification of accounts etc., and caused a huge loss to the bank by misappropriation of its funds. Various other amounts were also granted in the same manner to various other persons also, as loan. The offences alleged are under Sections 120B, 406, 420, 465, 468, 477A IPC
3. This is the second application for anticipatory bail. The earlier application for anticipatory bail (B.A. No. 7291/2007) was dismissed as withdrawn, as per order dated 7-12-2007 of another bench of this Court. The said order reads as follows:
After discussions at the Bar, the learned Counsel for the petitioner only prays that the petitioner may be permitted to withdraw this petition without any fetter on the rights of the petitioner to surrender before the learned Magistrate and seek regular bail. Request is accepted. This bail application is accordingly dismissed as withdrawn.
4. At the time of hearing of this petition also, the same request was made by petitioner. She requested that she may be permitted to withdraw this petition. The request may appear to be an innocent and innocuous one, But, can this Court allow petitioner to withdraw an anticipatory bail application? This is the short question to be considered in this case.
5. I shall first, consider the background in which this petition was filed. The crime registered about two years back, on 2-11 -2006. For the past two years, petitioner did not co-operate with the investigation. She did not make herself available for interrogation. Instead, in 2007, after about one year of registration of the crime, she filed an anticipatory bail application, as B.A. No. 7291/2007. Later, she requested to permit her to withdraw the petition, under the pretext that she wished to surrender before trial court. This Court acted upon those submissions and dismissed the petition, as withdrawn.
6. But, she did not surrender before the court. She did not seek bail under Section 437 of the Code. She successfully evaded arrest and all other lawful procedure for about one year after dismissal of earlier anticipatory bail application. Almost two years have lapsed now, after registration of the crime. But, petitioner filed another application for anticipatory bail and when it reached a stage where no further adjournment would be allowed, she has came up with a seemingly innocent request to allow her to withdraw this petition.
7. I ascertained petitioner's reason for withdrawal. I also enquired why she did not surrender in court or before police. Learned Counsel for petitioner had no satisfactory answer to give. It appears that petitioner did not intend to obtain any relief from the court on merit, while filing both the petitions. Even now, she only wants to remain untouched by any legal machinery. Without surrendering to law, she just wants to evade a lawful arrest. She is also reluctant to make herself available for a lawful interrogation by police. She does not want to surrender before court also and seek bail under Section 437 of the Code. All these are evident from her conduct, in repeatedly filing anticipatory bail applications and then, making requests for withdrawal.
8. It has to be borne in mind that mostly, a person who files an application for pre-arrest bail under Section 438 of the Code is the one who is required by the police for arrest, interrogation and other purpose of investigation. He may have within his exclusive knowledge, various relevant facts relating to commission of offence. He may be able to aid the investigator to discover various incriminating materials and effect recovery of material objects. In cases in which offence is committed in secrecy, he may be the only source of information relating to the details of the incident, persons involved, the modus operandi adopted for the commission of crime etc. So, without subjecting the accused to custodial interrogation, ordinarily it may be difficult for the investigating officer to effectively investigation into the crime.
9. It may also be possible that a person who files an anticipatory bail application may be an absconder, who evades due process of law. He may be the one who flees from law and does not surrender even after issuance of a lawful non-bailable warrant from court. He may be a proclaimed offender, because of whose absence, trial might have got stalled or protracted. He may be a wanted criminal, without whom and whose interrogation and participation, the investigation cannot be completed nor the trial be commenced. He may even leave the country, under the protective umbrella of a mere an anticipatory bail application which is pending on the file of the Court.
10. But, by filling an application for anticipatory bail under Section 438 of the Code and by getting an interim order and thereafter, by getting it kept pending before court for some time, he may delay and evade arrest and interrogation. He may even abscond. In the mean time, he may get all material evidence which might be laid against him, to vanish. He may also manipulate or tamper with evidence. All these facts have to be borne in mind while a prayer is made to withdraw an anticipatory bail application.
11. If an application for anticipatory bail is allowed to be dismissed as withdrawn on the mere request, or dismissed for default, the accused may wait for another opportunity to file a similar petition and abscond, without surrendering to law. He may repeatedly file petitions only with a view to prevent investigating officer from arresting him and interrogating him. He may destroy evidence or tamper with it, if he is not arrested without delay. The trial may be protracted for want of accused's presence. He may flee from law and cause deliberate delay in disposal of the case, without surrendering. It is also likely that he may seek forum-hunting. These shall not be encouraged.
12. The court shall not be a prey any evil designs of a clever and unscrupulous accused who defrauds the court and takes the whole system for a ride. The court shall not be an instrument for evasion of law by any person in any manner. Section 438 of the Code is brought into the statute book, with a noble cause to achieve. The court shall not allow such provision to be misused by any deceptive law-breakers. The court shall prevent any provision of law being defeated or exploited for evil purpose.
13. If the court is not vigilant, it is likely that the provision will be misused by lawbreakers. The accused may abscond and destroy evidence. He may evade arrest and being interrogated by police. By delaying arrest and interrogation, courts will be, indirectly, aiding accused to tamper with evidence and abscond at his will and pleasure for any length of time.
14. When the Court finds that a person, who has cleverly evaded arrest and investigation, the court has a duty to see that he/she is brought to law. If such a person is personally present in court, the court will be under a duty to see that he is arrested and taken into custody. The court shall not allow an accused to flee and give him another opportunity to file a petition again for the same relief with any ulterior motive. The court shall see that the accused, who flees from the law surrenders to law. If the petition is allowed to be withdrawn mechanically, the court will be encouraging law-breakers to flee.
15. When a person subjects himself to the jurisdiction of court by filing a petition under Section 438 of the Code and when a request is made to withdraw the petition, the court shall therefore ascertain the purpose for which petitioner seeks to withdraw the petition. If the court is not satisfied of the reason stated for withdrawal and if it appears to court that petitioner may abscond or destroy or tamper with evidence by delaying or evading arrest, it shall dispose of the application only on merit. The court shall not ordinarily, as a routine, permit an anticipatory bail application to be dismissed as withdrawn or for default, unless there are strong reasons to do so.
16. On hearing both sides, I am satisfied to find out several material facts which will be within the exclusive knowledge of petitioner regarding the manner in which the forgery etc., is committed etc., petitioner's interrogation by police would be necessery. Unless petitioner surrenders, it may not be possible to complete investigation without delay. The crime was registered more than two long years back, on 2-11 -2006. Petitioner has cleverly evaded due process of law for the past two years. Her intention appears to be only to flee from law some how or other. She did not give any acceptable reason for withdrawing this petition.
17. On the facts of this case, I find that there could be various documents and other materials which would all be relevant to prove the offence against petitioner in this case. But, by getting two long years of time, by evading arrest, and by filing two petitions for anticipatory bail and without surrendering in court or before police, petitioner would have already destroyed or tampered with major part of the evidence available against her. She has already adopted a clever tactics in achieving her goal. Learned Public Prosecutor submitted that considering nature of allegations made against petitioner, petitioner is needed for interrogation.
18. On considering the facts and circumstances, I find that this is not a fit case to grant anticipatory bail. In the peculiar facts and circumstances of the case, It is also necessary that further directions are issued to ensure that petitioner surrenders to law and does not come up with yet another anticipatory bail application, with a mere intention to defeat law. The duty of the court does not, therefore, end by merely dismissing the petition for anticipatory bail. It shall further see that accused is arrested and brought to law, especially if the court choses not to allow the petition. The court shall ensure that a person who evades law, surrenders to law.
19. The court shall make sure that the court does not in any manner, even indirectly, aid an accused to abscond or evade lawful steps to be taken up by the investigating machinery or the trial/committal court. The court has a duty to see that an accused cooperates with investigation or other proceeding before the court and hence, appropriate directions have to be issued by the court, while dismissing the petition.
Hence, the following order is passed:
i) Petitioner's oral request for withdrawal of petition is rejected.
ii) Petitioner shall surrender before the investigating officer without any further delay, and co-operate with the investigation. Whether she surrenders or not, the police is at liberty to arrest her at any time, and proceed in accordance with law.
iii) No other petition from the petitioner under Section 438 of the Code shall be entertained by this Court in this crime.
With this direction, petition is dismissed.