The Supreme Court of India in R.K. Krishna Kumar Vs. State of Assam, AIR 1998 SC 530 : 1997 (6) Suppl.SCR 153 : (1998) 1 SCC 474 : 1997 (7) SCALE 442 : JT 1997 (9) SC 709 : 1998 (2) ALD (Cri) 113 : 1998 (1) ALT (Cri) 107 :  92 Comp Cas 14 (SC) : 1998 CriLJ 848 : 1997 (4) Crimes 388 (SC) held that the question of granting anticipatory bail under Section 438 of the Code of Criminal Procedure not applicable if the offence is bailable.
A bench comprising of M.K. Mukharji and K.T. Thomas, JJ. observed that the question of granting anticipatory bail does not arise since offence under S. 10 of the Unlawful Activities (Prevention) Act, 1967 is bailable.
Officers of a Company met some leaders of an unlawful association including United Liberation Front of Assam (ULFA), negotiated with them in connection with their various demands including ransom demands. Case Diary revealed that the Company had funded the said unlawful association and the Officers had a role to play in such funding.
The Apex Court held that in such circumstances, a prima facie case under S. 10 made out against the Officers, in that, they assisted the operations of the said unlawful association but not under Section 13 thereof or under the Penal Code.
Facts of the Case
The appellants were Officers of a Company and they met some leaders of an unlawful association, negotiated with them in connection with their demands including ransom demands and payment of hospital and hotel bills. The case diary of the investigation proceedings had revealed that the Company had funded the said unlawful association and that the appellants had a role to play in such funding.
On the basis of these facts the police registered a case against the appellants under Section 120-B, 121, 121-A and 122 of the Penal Code, 1860 and Sections 10 and 13 of the Unlawful Activities (Prevention) Act, 1967.
The appellants apprehended that they might be arrested in connection with the above case and, therefore, they filed applications for an-ticipatory bail before the Bombay High Court under Section 438 of the Criminal Procedure Code, 1973.
The applications were allowed by the Bombay High Court. Being aggrieved the respondent-State preferred an appeal before Supreme Court.
Apex Court set aside the order of the Bombay High Court as it was passed ex-parte and transferred the anticipatory bail applications to the Gauhati High Court. However, the Gauhati High Court dismissed these applications. Hence this appeal.
While disposing of the appeal, the Apex Court held that when the materials collected during investigation are judged in the light of the provisions of the Penal Code, 1860 and Unlawful Activities (Prevention) Act, 1967 it is apparent that they make out a prima facie case under Section 10 of the Act against the appellants, in that, they have assisted the operations of an unlawful association through contributions and also in other ways.
However, when those material allegations levelled against the appellants are considered vis-a-vis the `unlawful activities’ envisaged under the Act it cannot be said that they are liable for an offence under Section 13 of the Act, much less under the offences under the Penal Code.
Resultantly, the question of granting anticipatory bail to the appellants under Section 438 of the Criminal Procedure Code, 1973 cannot and does not arise, for an offence under Section 10 of the Act is bailable; and a direction under the former can be issued only in respect of a non- bailable offence.