CRMA/287/2003 of SHRI SAMEER DESAI,MARGAO-GOA. Vs STATE, THROUGH THE POLICE INSPECTOR,MARGAO-GOA. on 30 December 2003

IN THE HIGH COURT OF BOMBAY AT GOA

CRIMINAL MISC. APPLICATION NO. 287 OF 2003SHRI SAMEER DESAI,MARGAO-GOA.

....Applicants

Versus

STATE, THROUGH THE POLICE INSPECTOR,MARGAO-GOA.

....Respondents

SHRI ARUN BRAS DE SA,MRS.WINNIE COUTINHO,APP

-Coram:A.M.KHANWILKAR, J.-Date:30th December, 2003

P.C.:

Heard Mr. Arun Bras de Sa for theApplicant and Ms.Winnie Coutinho forthe State.Investigation papers were producedbefore me. On perusing the papers, atthis stage I am not inclined toentertain the anticipatory bailapplication filed by the Applicant inrelation to Crime No.365/2003 underSection 376 of I.P.C., Section 8 ofGoa Childrens Act, 2003 and Section 5 ofImmoral Traffic (Prevention) Act, 1956in view of the record presently available. Not a case for anticipatory bail. Itwill however be open to the Applicant tomove for regular bail as and when theoccasion arises and if so advised. Thatapplication will be considered on itsown merit, uninfluenced by the observations in this order or the orderpassed by the Lower Court.Suffice it to mention that the factregarding happening of the incident on28th August, 2003 is not in dispute.That has happened at the residence ofthe applicant and he has been named bythe Prosecutrix as well as the Applicanthas broadly accepted that position inthe statement recorded before the Police, although the statement of theapplicant so recorded by the Police isnot the basis for deciding the matter inissue. Accordingly this application isrejected.

Mr. D'Sa submits that even if thisanticipatory bail application isrejected, that necessarily would notrequire arrest of the Applicant.Reliance is placed on the decisionreported in (2003) 2 S.C.C., 649 in thecase of M.C. Abraham and Another v.State of Maharastra and Others tobuttress this submission. That positionis well settled and it is not the caseof the respondent that as theanticipatory bail application isrejected, the Applicant should surrenderon his own. Whereas, as and when theinvestigating agency thinks it necessaryto exercise power to arrest underSection 41 or Cr.P.C. on sufficientreasons available in view of the settledlegal position, that course can be resorted to by the Investigating Agency.

A.M.KHANWILKAR, J.