Bengaluru, Karnataka – May 6, 2024 – The LII Additional City Civil and Sessions Judge in Bengaluru, Smt. Mamtaz, M.A., L.L.B., P.G.D.C.A., has dismissed an anticipatory bail petition filed by an accused person in a case of alleged theft by an employee. The court ruled that the petition lacked merit as there was no genuine apprehension of immediate arrest by the police.

The order, pronounced on May 6, 2024, pertains to the petition Crl. Misc. No. 3159/2024, filed by the petitioner, Adil Pasha, against the State of Karnataka, represented by the Banashankari Police Station.

The Case Details: Theft by Clerk or Servant

Adil Pasha, aged 24 and a resident of J.P. Nagar, Bengaluru, was named as Accused No. 1 in Crime No. 71/2024, registered by the Banashankari Police Station. The charges were brought under Section 381 of the Indian Penal Code (IPC), which deals with “Theft by clerk or servant of property in possession of master.”

According to the First Information Report (FIR), which was initiated based on the complaint of one Akshatha Shekar, the petitioner was an employee of an organization—allegedly an Indian Distributor Agency. The complaint detailed that upon checking the stock, it was discovered that 46 Indian Cylinders had been stolen by the petitioner during his employment.

The petitioner, represented by Sri. N. Sampath Kumar, sought anticipatory bail under Section 438 of the Criminal Procedure Code (Cr.P.C.), arguing his innocence and stating that he was a permanent resident ready to abide by any conditions imposed by the court. The petition highlighted the strong apprehension of arrest by the respondent police.

Prosecution Opposition and Investigation Report

The learned Public Prosecutor filed objections vehemently opposing the grant of anticipatory bail. The prosecution argued that the alleged offence was grave in nature and detrimental to society. Crucially, the prosecution’s objection, supported by the Investigating Officer’s (I.O.) report, brought a specific factual development to the court’s attention:

• The I.O. had already located the petitioner on March 27, 2024.
• The petitioner was investigated and enquired by the police.
• Significantly, the police did not arrest the petitioner after the enquiry.
• The prosecution submitted that the I.O. had not issued any notice or summons to the petitioner since the initial enquiry, nor had they stated that the arrest of the accused was necessary for the investigation.

The prosecution contended that the petition was filed with mala fide intention to waste the court’s time and that if granted bail, the petitioner might threaten witnesses or commit similar offences.

Court’s Findings on “Apprehension of Arrest”

The core of the court’s decision hinged on the interpretation of Section 438 of the Cr.P.C., which is applicable only when there is a reasonable ground for believing that a person may be arrested in connection with a non-bailable offence.

The LII Addl. City Civil & Sessions Judge, in addressing Point No. 1 – Whether the petitioner has made out grounds for granting anticipatory bail u/s. 438 of Cr.P.C. – answered in the Negative.

The court meticulously examined the facts presented in the I.O.’s report:

“It is pertinent to note that when the police found the accused/petitioner they have not arrested the accused/petitioner, but they have followed the procedures as laid down in Arnesh Kumar’s case. It means there is no apprehension of arrest to the accused/petitioner.”

The court was referring to the guidelines set by the Supreme Court in the landmark Arnesh Kumar v. State of Bihar case, which mandates police to adhere strictly to Section 41A of the Cr.P.C. before making arrests for offences punishable with less than seven years imprisonment, and to record reasons for arrest or non-arrest. The fact that the police had encountered and enquired with the accused, yet chose not to arrest him, was deemed proof of the absence of immediate apprehension of arrest.

The judge explicitly stated: “When there is no apprehension of arrest, then there is no need to file the present application. The ingredients of the Sec.438 of Cr.P.C. is very clear in stating that there should be some apprehension of arrest.”

Alternative Legal Recourse Suggested

In dismissing the petition, the court advised the petitioner on the appropriate legal recourse available to him. The court clarified that since the police are not actively seeking his custody, the petitioner’s apprehension is premature and unfounded.

“The petitioner can appear before the Jurisdictional Magistrate and file the application which will be dealt is disposed by the trial judge as per in accordance with and due process of law.”

This directive suggests that the petitioner must pursue regular bail under Section 437 or 439 of the Cr.P.C. by presenting himself before the appropriate magistrate’s court, a common procedural step when anticipatory bail is rejected due to lack of imminent threat of arrest.

The final order therefore was: “The petition filed by the petitioner/accused u/s.438 of Cr.P.C., is hereby dismissed.” The ruling reinforces the judicial principle that anticipatory bail is a protective measure against unwarranted arrest, not a routine guarantee of freedom from legal process, particularly when investigating authorities are already adhering to due process regarding non-arrest.