weather second bail application under Sec 438 CRPC be filed
There are two
situations in which the question needs to be answered separately.
Firstly,
it may be remembered that under Section 438 of the Cr.P.C., anticipatory bail
can be granted by the Sessions Court as well as by the High Court. Such an
application can be made before either of these courts. They have concurrent
jurisdiction. Now, suppose the first anticipatory bail application was rejected
by the Sessions Court, then definitely the second anticipatory bail can be
filed before the high court.
Secondly,
now suppose the anticipatory bail application was rejected by say high court,
then whether a second anticipatory bail application can be filed before the
same high court? Or, if such application was first rejected by the Sessions
Court, can a second such application be filed before the same Sessions Court?
This is slightly different question.v
However, even in the
second situation, a Full Bench of the Rajasthan high court [Ganesh Raj v.
State of Rajasthan, 2005 Cri LJ 2086 (FB)] has held that a second anticipatory
bail application can be filed in the following circumstances:
“…second or subsequent bail
application under Section 438 Cr.P.C. can be filed if there is a change in
the fact situation or in law which requires the earlier view being interfered
with or where the earlier finding has become obsolete. This is the limited area
in which an accused who has been denied bail earlier, can move a subsequent
application. Second or subsequent anticipatory bail application shall not be
entertained on the ground of new circumstances, further developments, different
considerations, some more details, new documents or illness of the accused.”
In a recent case before
the Supreme Court in Jagmohan Bahl v. State (NCT of Delhi), (2014) 16 SCC
501, the appellants had moved an application under Section 438 Cr.P.C. for
grant of anticipatory bail which was dismissed by Sixth Additional Sessions
Judge. Thereafter, appellants after expiry of three weeks filed second
application under Section 438 Cr.P.C. Fourth Additional Sessions Judge allowed
the same. The high court set aside the order of anticipatory bail. In this
case, the Supreme Court observed that the Judge, who has declined to entertain
the prayer for grant of bail, if available, should hear the second bail
application or the successive bail applications. It is in consonance with the
principle of judicial decorum, discipline and propriety. Needless to say,
unless such principle is adhered to, there is enormous possibility of
forum-shopping which has no sanction in law and definitely, has no sanctity. If
the same is allowed to prevail, it is likely to usher in anarchy, whim and
caprice and in the ultimate eventuate shake the faith in the adjudicating
system. This cannot be allowed to be encouraged. The Supreme Court held that
when the Sixth Additional Sessions Judge had declined to grant the bail
application, the next Fourth Additional Sessions Judge should have been well
advised to place the matter before the same Judge. In view of these, the
Supreme Court concurred with the reasoning given by the High Court, but in the
facts and circumstances of the case, it set aside the direction cancelling the
order of anticipatory bail. Thus, from the observations of the Supreme Court,
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bail order BAIL AFTER UPHOLDING VERDICT OF TRIAL COURT BY HC What documents can
be procured from court for applying a bail? Cancellation of Bail by Sessions
Court when bail was granted by High Court clearly appears that a second
anticipatory bail application can be filed, though it has observed that such
second application should be handled by the same judge who had rejected it on
the first occasion.
mahmudul islam v. state of assam
Mahmudul Islam vs. The
State of Assam vide
which application for anticipatory bail in same FIR
was rejected. This is second ...the case in hand, I find that the
earlier application for anticipatory bail was rejected
in August, 2019. The investigation has been delayed only because the applicant
did not join investigation process, rather has...1. The applicant, namely,
Mahmudul Islam has preferred this application under Section 438 of
the Code of Criminal Procedure for anticipatory bail in
connection with Moirabari P.S.v
On the other hand,
learned Govt. Advocate for the non-applicant/State vehemently opposes the
prayer. He submits that the earlier application was dismissed as
withdrawn on 08.10.2015 and just after 8 days, the
present application has been filed. There is no change in
circumstances. Therefore, this second application for anticipatory bail is
not maintainable. Besides this, there is prima-facie case against the present
applicant. He, therefore, prays for dismissal of the application. At
this juncture, learned counsel for the -: 3 :- applicant submits
that second application for anticipatory is maintainable
even if earlier application was rejected on merit or was dismissed as
withdrawn. For this purpose, he placed reliance on the judgment of Division
Bench of this Court in the case of Imratlal Vishwakarma v/s State of M.P.
[1996 MPLJ 662] and the judgment of Rajasthan High Court in the case of Ganesh
Raj v/s State of Rajasthan [2005 Cri.L.J. 2086] and submits that there is
no bar in considering
the second application for anticipatory bail.
It is settled law
that second application for anticipatory bail is
maintainable even if earlier application has been rejected on merit
or was dismissed as not pressed as held by Division Bench of this Court in the
case of Imratlal Vishwakarma's case (supra).
The Division Bench held
that :- 17. In our opinion, the said principle would
apply, on the basis of analogy, in connection with
an application filed under -: 4 :- section 438, criminal procedure
code as well as has been tried to be elucidated by giving examples and, since
the law does not preclude entertainment of any second application under
section 438, criminal procedure code, it cannot be said
that second application would not be maintainable in law.
1 These matters have
been referred by Hon‟ble Single Judge, for deciding the issue, that if the
previous anticipatory bail order was for a limited period till submission of
the charge-sheet and the accused after grant of anticipatory bail has
surrendered before the Court for furnishing bail bond, whether in such
cases on submission of charge-sheet, second anticipatory bail application is
maintainable or the applicant will have to surrender and obtain an order of
bail under Sections 437 or 439 of the Code of Criminal Procedure. The single
Judge has referred these matters in view of divergent opinion among the Judges
about the maintainability of the second anticipatory bail application in such
circumstance.
2. Petitioners in these
applications were granted anticipatory bail till submission of the
charge-sheet. Subsequently when the charge-sheet was submitted, again they
filed application for grant of anticipatory bail, which gave rise to question
whether in terms of previous order, they are required to appear and surrender
before the Court below for seeking regular bail or their prayer for grant of
anticipatory bail on the second occasion could be allowed.
3. The issue has been
framed in view of the constitution bench decision of Apex Court in the case of
Guru Baksh Singh Sibia Vs. State of Punjab reported in AIR 1980 SC 1632 as
well as divergent views taken by different Benchs in the case of Salauddin
Abdul Samad Shaikh Vs. State of Maharashtra reported in (1996) 1 SCC 667, in
the case of Nirmaljeet Kaur Vs. State of M.P. as well as in the case of
Mahendra Prasad Singh Vs. State of Bihar reported in 2004(3) PLJR 491,
Sheochandra Singh Vs. State of Bihar reported in 2007(4) BBCJ V-66 as well as
in the case of Jagnarayan Yadav alias Babajee and ors. Vs. State of Bihar,
reported in 2010 (2) PLJR 684. The view taken in Salauddin‟s case has been
followed in all these cases, with certain observations/modifications but so far
the view taken by the learned single Judge in the case of Anirudh Pd. alias
Sadhu Yadav Vs. State of Bihar reported in 2006(2) PLJR 676 is concerned, a
different view has been taken.
4. Section 438 was
introduced in the Code of Criminal Procedure on recommendation of the Law
Commission in its forty first Reports. Section 438 Cr.P.C,
contemplates an application by a person on an apprehension of arrest in regard
to the commission of non-bailable offence. The object of the provision
under Section 438 Cr.
P.C. was to give relief to a person from unnecessary harassment and discourage
in case of apprehension of arrest for non- bailable offence. This privilege
could be granted on an application filed before the High Court or the Sessions
Court, if the Court concerned is satisfied that (i)the person will not abuse
the liberty of anticipatory bail. (ii) The facts of the case reveal false
implication of applicant in the matters of non-bailable offence. (iii) The
applicant has reasonable apprehension of being arrested in the case. (iv) The
person concerned will not abscond and will make himself available to face trial
and also that the privilege of anticipatory bail will not be otherwise misused
by person concerned.
5. Shri Rana Pratap
Singh, Senior Advocate, while addressing the Court on this issue has referred
different decisions, right from AIR 1980 SC 1632 ( Gurubaksh Singh Sibia Vs.
State of Punjab), up to 2010(2) PLJR 684 ( Jag Narayan Yadav vs. State of
Bihar). He has submitted that it was for the first time in
the case of Gurubaksh Singh Sibia (supra) that the Apex Court has considered
the scope of Section 438 Cr.P.C,
while granting anticipatory bail and discussed the jurisdiction of the Court.
The view of the Apex Court in Gurubaksh Singh‟s case was that amplitude of
judicial discretion, given to the High Court and the Court of Sessions should
not be cut down by reading into statute. It is for the High Court and the Court
of Sessions, to whom the anticipatory bail application is made to exercise
freely their judicial discretion, on the particular facts and circumstances of
the case and on such conditions as the case may warrant. The ends of justice
will be better served by trusting these Courts governing the grant of bail,
then by divesting them of their discretion, which the legislature has conferred
upon them, by laying down inflexible rules of general application. The view
expressed by the constitution Bench, sufficiently indicated that how and in
which manner an application, for anticipatory bail should be considered.
The only consideration was the judicial discretion of the concerned Court
depending on the facts and circumstances of a particular case.
6. However, in this very
decision, the Constitution Bench has held that provisions of Section 438 Cr.P.C.
cannot be invoked after the arrest of the accused. Grant of anticipatory bail
to an accused, who is under arrest, involves contradiction to term of provision
under section 438 Cr.P.C.,
as the first pre-condition for granting anticipatory bail is a reasonable
apprehension of being arrested, on an accusation of having committed a
non-bailable offence. The constitution Bench also decided that operation of an
order passed under Section438 Cr.P.C. necessarily should not be limited in point of time. The
normal rule should be, not to limit the operation of the order in relation to
period of time.
7. But the view of Apex
Court in Gurubaksh Singh‟s case was changed in Salauddin Vs. State of
Maharashtra (1996) 1 SCC 667. In this decision the view of the Apex Court was
that if any person has reason to believe that he may be arrested on an
accusation of having committed non-bailable offence, the High Court or the
Court of Sessions, may, if it thinks fit, direct that in the event of arrest,
he shall be enlarged on bail, it may include such conditions, having regard to
the facts of the particular case. It was also held that since anticipatory bail
is granted to any person in anticipation of arrest in non-bailable case, it
does not mean that the regular Court, which is to try the offender, should be
bypassed and for that reason the High Court or the Court of Sessions should fix
a outer date for continuation of bail and on the date of its expiry, petitioner
should be directed to move for regular bail. The anticipatory bail as per decision
was an ad-interim relief till the investigation is going on. Once investigation
is completed and charge- sheet submitted bringing some tangible evidence
against the accused, he has to surrender before the Court having jurisdiction
for regular bail.
8. The earlier view of
the Apex Court in (1996) 1 SCC 667 was also upheld in the
decision reported in (1998) 9 SCC 348 ( K.L.Verma Vs. State and another),
where the Apex Court was of the view that the order of anticipatory bail do not
ensure restraining from arrest till the end of trial but for a limited
duration. The matter should be left for regular bail, giving sufficient time to
the accused to move regular Court for bail and only in case of refusal by the
Regular Court, to approach Higher Court.
9. The view taken in
K.L. Verma‟s case did not find favour in Bharat Choudhary Vs. State of Bihar (
2003) 8 SCC 77. In this case anticipatory bail of the petitioner had been
rejected by the High Court and appeal was preferred by him before the Supreme
Court. The Apex Court was inclined to grant bail to the petitioner Bharat
Chowdhary but a serious objection was raised by the counsel appearing for the
State. The objection of the State Counsel was that since trial court had taken
cognizance of the offence, section 438 Cr.P.C.
cannot be made applicable for granting anticipatory bail and only remedy
available to the appellant is to approach trial Court, surrender before it
and apply for regular bail. The objection raised by the State Counsel, however
was not found acceptable to the Supreme Court and it was held that object
of Section 438 Cr.P.C.
was to prevent undue harassment of the accused persons on account of pre-trial
arrest. While granting anticipatory bail, the consideration of gravity of the
offence should an important factor. Simply because cognizance has been taken,
these things in itself cannot be construed as prohibition against grant of
anticipatory bail.
10. The Apex Court‟s
again reverted back to the findings recorded in Salauddin case (Supra) in
Nirmaljeet Kaur‟s case. The view of the Apex Court in this case was also that
anticipatory bail should be granted for a limited duration, so as to enable the
accused to move the regular Court for bail, in terms of Section 439 Cr.P.C.
Such limited duration may extend to the date on which bail application filed by
the accused is disposed of or even few days thereafter to enable the accused to
move higher Court. This view was not accepted by another Bench of the Apex
Court in K.L.Verma‟s case (Supra). However in Nirmaljeet Kaur Vs. State of M.P
(2004) 7 SCC 558, also the view taken in 1996(1) SCC 667 was affirmed, holding
that a person who had been granted anticipatory bail under Section 438 Cr.P.C.
for a limited period, has to move regular court for bail under Section 439 Cr.P.C.
But in this case a new theory was propounded that after bail is not granted
within that period, he has to surrender so that application under section 439 Cr.P.C.
can be taken for disposal. High court, cannot during the pendency of the
application under Section 439 Cr.P.C.,
by a blanket order extend the ad-interim anticipatory bail, so as to enable the
accused to obtain bail under Section 439 Cr.P.C.
11. Observation of the
Supreme Court in K.L.Verma‟s case was that even after expiry of the limited
period of anticipatory bail, for a few days ad- interim relief can be granted
to the accused to move higher Court. This view was held per in curium as the
decision was without giving reference to the requirement of Section 439 Cr.P.C.
12. Similar view has
also been taken in the decision reported in 2009 (2) BBCJ 119, where it has
been held that protection in terms of Section 438 Cr.P.C is
for a limited duration, during which one has to move to the regular Court for
bail in terms of Section 439 Cr.P.C.
Mandate of Section 439 Cr.P.C.
is that the applicant has to be in custody. The distinction between order
under Sections 438 and 439 Cr.P.C. shall be
rendered meaningless and redundant, if the protective umbrella under Section 438 Cr.P.C.
is extended beyond the required period.
13. The view taken in
the decision reported in 2006(2) PLJR 676 (Anirudh Prasad vs. State of Bihar),
is on the line of decision reported in Gurubaksh Singh‟s case as well as Bharat
Choudhary‟s case, where it has been held that mere submission of the
charge-sheet does not denude the Court, the power to grant anticipatory bail.
As a proposition of law, it cannot be said that in a case, in which once
the anticipatory bail is given till submission of charge-sheet, another application
cannot be entertained, based on the premise that later, on investigation, fresh
materials come.
14. On perusal of all
these decisions what transpires, that the scope of Section 438 Cr.P.C.
has been considered differently in different decisions. In most of the cases
the view of the Apex Court is that an accused cannot be granted anticipatory
bail from the stage of investigation, till the stage of trial, since it is a
protection given to the accused from harassment, in a case where the
investigation is in the initial stage. But once the accused is charge-sheeted
and material evidence has been collected against him, he will have to surrender
before the Trial Court and pray for regular bail.
15. What I find that
scope of Section 438 Cr.P.C.
is to give relief to an accused who anticipates his arrest in connection with
non- bailable offence. The Court is empowered in exercise of jurisdiction
under Section 438 Cr.P.C.
to grant him bail in anticipation of arrest. That arrest can be before
submission of charge-sheet or after submission of the charge-sheet or after the
cognizance has been taken in the case. If the Court has applied its juridical
mind and is of this view that the person concerned despite being named as
accused in a non-bailable offence is capable of granting anticipatory bail for
the reason that (i) there is no chance of misuse of privilege of bail by him
(ii) There is no apprehension of his absconding (iii) no chance of tampering
with the evidence and (iv) will present himself for facing trial, in such
cases, even if charge-sheet is submitted or cognizance is taken, anticipatory
bail can be granted. Anticipatory bail which was granted earlier to an accused
will not come to an end, and it will continue till conclusion of the trial,
unless the order granting anticipatory bail is either cancelled by a judicial
order, or the accused has been taken into custody, simply because the
charge-sheet is submitted, it does not mean that the person who was granted
anticipatory bail, has come beyond the protective umbrella of section 438 Cr.P.C.
16. Only distinction in
between Sections 438 and 439 Cr.P.C. is that
bail granted in exercise of jurisdiction under Section 438 Cr.P.C.
is before the arrest of the accused and under Section 439 Cr.P.C,
it is granted when the accused has either surrendered or has been taken into
custody. The privilege which is given to the accused under both the sections
are the same, but only distinction is of stage.
17. On account of
certain changes and amendment brought in Section 438 Cr.P.C.,
in case of grant of anticipatory bail, the petitioners-accused has to surrender
before the Court concerned. In case where anticipatory bail has been granted
for a limited period, till submission of the charge-sheet, the petitioner again
has to make a fresh prayer for bail, since, already on earlier occasion he had
to surrender before the concerned Court and had furnished bail bond, so on
submission of charge- sheet, the first pre-requisite for grant of anticipatory
bail i.e. the person concerned must not have been arrested or surrendered
before any Court, is not available to him. He has lost the requisite criteria
of granting anticipatory bail, in that case except the surrendering before the
competent Court for grant of regular bail, he is left with no other option.
18. A similar matter
was considered in case of bailable offence. A person who is named as accused
for bailable offences and granted bail by the police on execution of bail bond.
Subsequently on completion of investigation, if the charge-sheet is submitted
for non-bailable offence or despite submission of charge-sheet for bailable
offence, cognizance is taken by the Magistrate for non- bailable offence, which
he can make prayer for anticipatory bail. This issue was considered and decided
in the case of Mahendra Pd.
Singh vs. State of Bihar ( 2004 (3) PLJR 491). In this decision
it was held that once the bail had been granted and bail bond executed, at a
later stage, if the offence is treated as non-bailable, the applicant cannot
file his application for grant of anticipatory bail. The only remedy available
to him is to surrender before the concerned Court. The Court concerned
will grant him bail without taking into custody, considering his conduct while
on police bail and also that he has not misused the privilege of bail.
19. In case of
non-bailable offences also, similar view can be taken, in case anticipatory
bail was granted for a limited period till submission of the charge-sheet.
Since the accused has already surrendered before the Court below for grant of
anticipatory bail and has executed bail bond, as such at his instance another
anticipatory bail application can not be maintainable. He will have to
surrender and pray for regular bail under Section 439 of the
Code of Criminal procedure. The Court concerned, instead of taking him into
custody, considering the previous order of anticipatory bail passed in his
favour and also that he has not misused the privilege or his conduct is such
that despite submission of charge-sheet or order taking cognizance, he is
capable of granting bail, will grant him bail. In case where the anticipatory
bail granted for limited period has been misused, the concerned Court will
have discretion, either to grant or refuse the bail. In case of non-bailable
offence, Anticipatory bail, if granted for limited period, the Court concerned
will pass order in similar manner as laid down in the case of Mahendra Pd.
Singh (supra). In no case, second anticipatory bail application at the instance
of such accused person is maintainable.
20. So far petitioners
in these Criminal Miscellaneous applications are concerned, they are also
directed to surrender before the concerned Court within four weeks from the
date of this order. In case these petitioners will surrender and file their
applications for bail under Section 439 of
the Code of Criminal Procedure, the concerned Court will pass an order in the
similar manner as has been decided in the case of Mahendra Prasad Singh vs. State of
Bihar reported in 2004(3) PLJR 491.
21. These petitioners
will be granted bail without taking them into custody as there is no allegation
against them that during the limited period of anticipatory bail or the
provisional bail order passed during pendency of these applications by the High
Court, they have misused the privilege of bail.
22. These
applications are allowed.
(Mridula Mishra,J.)
23. Dharnidhar Jha, J.-
I had the privilege of going through the order proposed by my esteemed sister
Smt. Mishra, J., on the reference made by the learned Single Judge by order
dated 12.5.2010, jointly passed in Cr. Misc. petition No. 1257 of 2010 and Cr.
Misc. petition No. 2875 of 2010. It appears that subsequently another petition
bearing Cr. Misc. No. 21131 of 2010 was also referred to the larger Bench by an
order passed on 7.7.2010 by the same learned Judge who had passed the order of
reference on 12.5.2010.
24. Considering the
matter and the issue which was referred and placed before us for decision in
spite of having deeply been benefited by the erudite order proposed by my
esteemed Sister, I want to express my own opinion on the issue.
25. The three petitions
had been filed by the accused persons of three different cases, as indicated in
the orders of reference, who had been granted anticipatory bail by competent
courts for a particular duration, i.e., up to the submission of the
charge-sheet. On the charge sheets being submitted, the original court of
jurisdiction took cognizance of the offence on those basis and issued summons
for appearance of the accused persons. Because the accused of those three cases
were on bail under Section 438 Cr.
P.C. for that limited period, they filed fresh petitions before the respective
Sessions Judges, namely, of Khagaria, Buxar and Patna, but those petitions were
dismissed by different orders passed in the fresh petitions preferred by the
accused persons. Those accused persons preferred three Cr.Misc. petitions in
this Court which were listed before the learned Single Judge. The learned
Single Judge, finding that the petitioners were placing before his Lordship the
decision of this Court reported in 2006(2) P.L.J.R. 676 Anirudh Prasad
Yadav alias Sadhu Yadav Vs. State of Bihar to buttress their submission
that their petitions were very much maintainable in spite of the three
decisions of this Court reported in 2004(3) P.L.J.R. 491, Mahendra Singh Vs.
State of Bihar, 2007(4) B.B.C.J. V-66 Sheo Chandra Singh and anr. Vs. State of
Bihar and 2010(2) P.L.J.R. 684 Jag Narayan Yadav alias Babajee Yadav Vs. State
of Bihar taking a contrary view, found that there was a conflict of opinion on
the maintainability of such petitions amongst the Judges of this Court and, as
such, directed listing of the three petitions before a larger Bench so as to
ironing out the differences in opinion of the Court on similar issue. This was
how the three petitions were placed before us for reconsideration.
26. On perusing the
order of reference dated 12.5.2010 passed jointly in Cr. Misc. No. 1257 of 2010
and Cr. Misc. No. 2875 of 2010 what appears is that the learned Judge was
rather referring the issue to a larger Bench for deciding the correctness of
the above decisions by noting as to whether an accused who had been
granted anticipatory bail under Section 438 Cr. P.C.
for a limited period, i.e., up to the submission of the charge sheet, could he
be entitled to maintain a similar petition under Section 438 Cr. P.C.
before the competent court again after submission of the charge sheet.
27. While enacting the Code of
Criminal Procedure, 1973, the legislature was considering the 41st Report of
the Law Commission which had proposed introduction of the provision in the Code enabling
the court to grant anticipatory bail. The relevant suggestion was appearing in
paragraph 39.9 of its Report. The Law Commission, at the same time, was also
presenting a draft Section for consideration. It was pointing out, "the
necessitity for granting anticipatory bail arises mainly because some
influential persons try to implicate their rivals in false case for the purpose
of disgracing them or for other purposes by getting them detained in jail for
some time. In the recent times, with the accentuation of the political rivalry,
this tendency is showing signs of steady increase. Apart from false cases,
where there are reasonable grounds for holding that a person accused of an
offence is not likely to abscond, or otherwise misuse his liberty while on
bail, there seems no justification to require him first to submit to the
custody, remain in prison for some days and then apply for bail." 28 The
report of the Law Commission was accepted by the Parliament. While amending Cr.
P.C., 1898, it introduced a new provision vide Section 438 Cr. P.C.
What is the crux in matters of granting anticipatory bail has been pointed out
time and again and it has consistently been noted by different decisions,
probably, the first which was coming from this Court in 1974 P.L.J.R. 516
Sk. Nizamuddin Vs. State of Bihar and anr. In that case S.K.Jha,J. ( as his
Lordship then was) was pointing out in paragraph 4 of the report as to what
could be the import of the terms like „accusation‟ and „reason to believe‟
besides the meaning of other terms like „suspected of the commission of any
non-bailable offence.‟ While considering the ambit and scope of the section his
Lordship was further considering the comparative scope and ambit of Section 438 Cr. P.C.
with Sections 437 and 439 Cr.P.C. and was
holding as under:
"It was submitted
that whereas Section 437 speaks
of bail to be granted to „any person accused of or suspected of the commission
of any non-bailable offence‟ and Section 439 (1)
speaks of such bail to „any person accused of an offence and in custody‟, Section 438(1) on the
contrary speaks of an anticipatory bail to „any person having reason to believe
that he may be arrested on an accusation of having committed a non-bailable
offence‟. Stress has been laid by learned counsel on the difference between the
words „ accused‟ and „may be arrested on an accusation‟ and it is sought to be
contended that by implication it must be held that the Legislature intended to
preclude a case where accusation has already been made from the operation
of Section 438. Learned
counsel wants me to read after the word „accusation‟ in Section 438(1) „likely
to be made‟. In other words, the term „accusation‟ is sought to be qualified by
the term „likely to be made‟ and not covering a case of accusation already
made. I am afraid, this contention cannot be held to be tenable in law.
Where the term „accusation‟, has been used in Section 438(1), it must in
the fitness of things include an accusation made as such as an accusation
likely to be made. So far as Sections 437 and 439 are concerned,
the terms „accusation‟ or „suspected of the commission of any non-bailable
offence‟ had to be used as they were dealing with the cases of persons already
arrested or detained and in custody. In Section 438, on the other
hand, the person approaching the Court of Session or the High Court is neither
arrested nor detained nor in custody. A person may have „reason to believe that
he may be arrested on account of an accusation‟ which has already been made
against him of having committed a non-
bailable offence. Such
a person may also have reason to believe that he may be arrested on an
accusation likely to be made of having committed a non-bailable offence. I see
no reason to restrict the language of Section 438 to only
such cases where accusation is only likely to be made and not to cases where
accusation has already been made, for it is seldom, if at all there be any such
case, where a person without any accusation being made against him shall have
reason to believe that he may be arrested. The very object of the
legislation will be frustrated if such a narrow construction be put upon the
language of Section 438 as
learned counsel for the petitioner wants me to put."
29. The Supreme Court
also considered the scope and ambit of Section 438 Cr. P.C.
in Gurbaksh Singh Sibbia Vs. State of Punjab reported in A.I.R. 1980 S.C.
1632 and while so doing was pointing out the distinction between an
ordinary order of bail and order of anticipatory bail. It was pointed out that
„distinction between an ordinary order of bail and an order of anticipatory
bail is that whereas the former is granted after arrest and, therefore, is
release from custody of the police, the latter is granted in anticipation of
the arrest and is, therefore, effective at the very moment of arrest. Police
custody is an inevitable concomitant of arrest for non-bailable offence. An
order of anticipatory bail constitutes, so to say, an insurance against police
custody following upon arrest for offence and offences in respect of which the
order is issued. In other words, unlike a post- arrest order of bail, it
is a pre arrest legal process which directs that if the person in whose favour
it is issued, is thereafter arrested on the accusation in respect of which the
direction is issued, he may be released on bail. Thus, a petition under Section 438 Cr. P.C.
could be maintainable only when a person reasonably believes him being arrested
on an accusation of having committed a non-bailable offence. As soon as the
person is arrested, there is no scope for him to take resort to the remedy
under Section 438 Cr.
P.C. He is left only with the remedies which could be available to him
under Sections 437 and 439 Cr. P.C.‟
30. While passing the
judgment in Gurbaksh Singh Sibbia(supra) the Supreme Court was also considering
as to what could be the duration for which such an order of bail could be made.
The learned Single Judge has also referred to those observations of the Supreme
Court in his order. Considering the context and the issue, I also want to
reproduce the relevant part of the Supreme Court observation in paragraph 38 of
the report which appears at page 1649:-
"There was some discussion
before us on certain minor modalities regarding the passing of bail orders
under S.438(1). Can an order of bail be passed under that section without
notice to the public prosecutor? It can be. But notice should issue to the
public prosecutor or the Government Advocate forthwith and the question of bail
should be re-examined in the light of the respective contentions of the
parties. The ad interim order too must conform to the requirements of the
section and suitable conditions should be imposed on the applicant even at that
stage. Should the operation of an order passed under Section 438(1) be
limited in point of time? Not necessarily. The Court may, if there are reasons
for doing so, limit the operation of the order to a short period until after
the filing of an F.I.R. in respect of the matter covered by the order. The
applicant may in such cases be directed to obtain an order of bail under S. 437 or 439 of the Code within
a reasonably short period after the filing of the F.I.R. as aforesaid. But this
need not be followed as an invariable rule. The normal rule should be not to
limit the operation of the order in relation to a period of time."
Thus, as per the
observation of the Supreme Court the order of bail under Section 438 Cr.P.C.
may be for the whole period of the case or may be for a limited stage of the
case.
31. Subsequently, in
several decisions right from (1996) 1 S.C.C. 667 Salauddin Abdul Samad Shaikh V
State of Maharashtra the Apex Court was considering the same question which was
considered by the Constitution Bench of the Supreme Court in Gurbaksh Singh
Sibbia(supra) regarding the duration of the period for which such an order of
anticipatory bail could be existing. In Salauddin Abdul Samad Shaikh(supra) it
was held :
"When the Court of
Session or the High Court is granting anticipatory bail, it is granted at a
stage when the investigation is incomplete and, therefore, it is not informed
about the nature of evidence against the alleged offender. It is, therefore,
necessary that such anticipatory bail orders should be of a limited duration
only and ordinarily on the expiry of that duration or extended duration, the
court granting anticipatory bail should leave it to the regular court to deal
with the matter on an appreciation of evidence placed before it after the
investigation has made progress or the charge-sheet is submitted."
It was further held in
that judgment as under:
"Ordinarily the
court granting anticipatory bail should not substitute itself for the
original court which is expected to deal with the offence. It is that court
which has then to consider whether, having regard to the material placed before
it, the accused person is entitled to bail."
32. In K.L.Verma Vs.
State and another reported in (1998) 9 S.C.C.348 the Apex Court was issuing
a direction which was somewhat contrary to the procedure and practice
prevailing as regards the provision of Section 438 Cr. P.C.
In that case an accused who had been granted anticipatory bail for a limited
period approached the Apex Court and while not disturbing the earlier direction
or not holding that it could not have been issued, the Supreme Court directed
the appellant before their Lordships to approach the original courts for bail
after submission of the charge sheet at the end of the duration for which the
order under Section 438 Cr.
P.C. was available to him and directed that High Court may extend it with a
direction to the accused to move the original court for grant of regular bail.
However, the above observation of the Apex Court appears not approved by its
subsequent decision in Nirmal Jeet Kaur Vs. State of M.P. and anr,
reported in 2004(7) S.C.C. 558 by referring to the provisions of Sections 437 and 439 Cr. P.C. which
require an accused to move for bail under those provisions only when he was in
custody of the courts. Reference in the above behalf was made to the decision
in Niranjan Singh and another Vs. Prabhakar Rajaram Kharote and others reported
in A.I.R. 1980 S.C. 785 in which the Apex Court adumbrated upon the word
„custody‟ and it was held that direction issued in K.L.Verma (Supra) was per
incuriam.
33. In Bharat Chaudhary
and another Vs. State of Bihar and anr. reported in (2003)8 S.C.C.77 the issue
was not as is before us, that‟s to say, as to whether an accused who had been
earlier admitted to an order under Section 438 Cr.P.C.
for a particular duration, could file a similar prayer after expiry of that
duration or, say, after submission of charge sheet or passing of cognizance
order. For that the accused in that case had filed a petition under Section 438 Cr.PC.
for the first time after cognizance order had been passed. It appears that
the resistance to the maintainability of the anticipatory bail petition after
submission of the charge sheet and passing of the cognizance order was on the
ground that as soon as the order of cognizance was passed the petition was not
maintainable and for resisting the prayer reliance was placed on Salauddin
Abdul Samad Shaikh V. State of Maharashtra ( supra). The Apex Court made the
following observations in paragraph 11 of Bharat Chaudhary‟s case( supra):
"We respectfully
agree with the observations of this Court in the said case that the duration of
anticipatory bail should be normally limited till the trial court has the
necessary material before it to pass such orders and it thinks fit on the
material available before it. That is only a restriction in regard to blanket
anticipatory bail for an unspecified period. This judgment in our opinion does
not support the extreme argument addressed on behalf of the learned counsel for
the respondent State that the courts specified in Section 438 of Cr PC are
denuded of their power under the said section where either the cognizance is
taken by the court concerned or a charge- sheet is filed before the appropriate
court. As stated above, this would only amount to defeat the very
object for which Section 438 was
introduced in Cr PC in the year 1973."
Thus, what appears from
the above observations is that the Supreme Court was never laying down the
proposition in Bharat Chaudhary that in a case in which an accused had obtained
a protective order under Section 438 Cr.
P.C. till submission of the charge sheet, he could again file a similar
petition after cognizance order had been passed. In fact, the whole decision in
Bharat Chaudhary does not appear considering the above issue and the
observations contained in paragraph 11 extracted above were simply negating the
submission of the respondent State that the courts were not empowered to act
under Section 438 Cr.
P.C.
34. However, the
proposition which appears laid down in Bharat Chaudhary in paragraph 11 was
laid down by this Court long back in 1989 P.L.J.R. 767 Bajranglal Agrawal and
Ors. Vs. The State of Bihar. In that case also the accused had applied for
anticipatory bail after submission of the charge sheet and passing of
cognizance order. Before that he had not prayed for bail under any of the
provisions of the Cr. P.C. The State was resisting the prayer on the same
premise as was done by the respondent State in Bharat Chaudhary. Hon‟ble late
L.M.Sharma, J.( as his Lordship then was) was pointing out in Bajranglal
Agrawal( supra) that the petition was very much maintainable even after
submission of the charge sheet or taking of cognizance because the language
employed to frame the provision of Section 438 Cr. P.C.
did not permit a narrow construction of it.
35. From the
discussions of the relevant law set down by the Supreme Court, it is abundantly
clear that an order of anticipatory bail may also be only for a limited period
of time or till a particular stage of investigation of the case, like, till
submission of the charge sheet or passing of order of cognizance in a case and
it may not be bad if the accused was directed to surrender and pray for regular
bail thereafter before the original courts of competent jurisdiction. The
above view appears taken by three of the decisions of this Court cited by the
learned Single Judge in his order of reference which are reported in 2004(3)
P.L.J.R.491 Mahendra Prasad Singh Vs. State of Bihar, 2007(4) B.B.C.J. V-66
Sheochandra Singh and Ors. Vs.State and 2010(2) P.L.J.R. 684 Jagnarayan Yadav
alias Babajee Yadav & Ors. Vs. The State of Bihar. However, what I find is
that except the proposition that such accused persons could not file another
anticipatory bail petition and the same could not be maintainable, no further
and definite reason has been assigned by any of the decisions including those
of the Apex Court in support of the above as regards explaining the scope,
ambit and application ofthe provision of Section 438 Cr. P.C.
I, in fact, find that there could be some very good reason flowing from the
provision and scheme of the Cr. P.C. itself in the above behalf which gets
clear support from the prevailing practice on the provisions regarding bail. In
my considered view, the reason for not maintaining the anticipatory bail
petition again by such accused persons could be deduced from some of the
provisions in the same Chapter XXXIII of the Cr.P.C
36. As may appear from
the provision of Section 438 Cr.
P.C., the accused may be directed to be released on bail if his case is found
fit for granting him the relief prayed for under that provision. After the
accused is granted bail, he is required to furnish his bond before the
competent court and the contents of the bond which is required to be executed
by an accused in the case including one under Section 438 Cr. P.C.
is indicated by the provision of Section 441 Cr. P.C.
which reads as under:
" 441. Bond of
accused and sureties.- (1) Before any person is released on bail or released on
his own bond, a bond for such sum of money as the police Officer or Court, as
the case may be, thinks sufficient shall be executed by such person, and, when
he is released on bail, by one or more sufficient sureties conditioned that
such person shall attend at the time and place mentioned in the bond, and shall
continue so to attend until otherwise directed by the police Officer
or Court, as the case may be.
(2) Where any condition
is imposed for the release of any person on bail, the bond shall also contain
that condition.
(3) If the case so
requires, the bond shall also bind the person released on bail to appear when
called upon at the High Court, Court of Session or other Court to answer the
charge .
(4) For the purpose of
determining whether the sureties are fit or sufficient, the Court may accept
affidavits in proof of the facts contained therein relating to the sufficiency
or fitness of the sureties, or, if it considers necessary, may either hold an
inquiry itself or cause an inquiry to be made by a Magistrate subordinate to
the Court, as to such sufficiency or fitness."
Thus, the bond has to
be executed by the accused after appearing and undertaking before the court
that he shall attend the court at the time and place mentioned in the bond and
shall continue to so attend until otherwise directed by the Police Officer or
court, as the case may be. It hardly requires to be noted that the accused
could execute the bond only when he had appeared before the court and had submitted
himself to its custody. The word „custody‟ does not appear either in the
provision of Section 438 Cr.
P.C. or under Section 441 Cr.
P.C. extracted above. However, the same appears in Sections 437 and 439 Cr. P.C. The
very Section 441 presupposes
that no bond could be executed by an accused unless he appears before the court
to execute the bond which has to be accepted by it. Not only that, the very
provision also indicates that the accused shall have to put down the conditions
which might have been imposed upon him for his release on bail in the very bond
to be executed by him. The provision of Section 441 Cr. P.C.
itself indicates that before the accused is released on bail on his bond, the
bond has to be executed before the court. Therefore, I have noted that such an
accused who has been ordered to be released on bail even under Section 438 Cr. P.C.,
shall have to appear before a court for executing the bond. In other words,
what is meant by the above is that the accused has to submit himself to the
custody of the court for executing the bond.
37. The word „custody‟
has not been defined in the Cr.P.C.,
though this has some vital importance as regards the chapter of bail. The
Supreme Court in Niranjan
Singh and another V. Prabhakar Rajaram Kharote and others reported
in A.I.R. 1980 S.C. 785 was considering and indicating its import. In that case
the accused had been summoned for committing offences under Section 302, etc., of the Indian Penal Code and
his prayer for bail had been refused by the Magistrate. The refusal was without
surrender of the accused and the Magistrate also stayed the warrant of arrest
which had been issued by him for appearance of the accused. The Sessions Judge
was approached by the accused before whom later he surrendered too, and the
Sessions Judge without satisfying that the accused was in custody of the
Magistrate who refused his prayer, admitted the accused to bail which order was
challenged before the High Court and the High Court also upheld the order of
the Sessions Judge by putting certain conditions in its order of bail. Niranjan
Singh, the complainant, challenged the order before the Apex Court. This
is how the Apex Court was considering the issue as to when a person could be
said to be in „custody‟ in the light of Section 439 Cr. P.C.
It was held as follows:
" When he is in
duress either because he is held by the investigating agency or other police or
allied authority or is under the control of the court having been remanded by
judicial order, or having offered himself to the court‟s jurisdiction and
submitted to its orders by physical presence. No lexical dexterity nor precedential
profusion is needed to come to the realistic conclusion that he who is under
the control of the court or is in the physical hold of an officer with coercive
power is in custody for the purpose of S. 439. This word is
of elastic semantics but its core meaning is that the law has taken control of
the person. The equivocatory quibblings and hide-and-seek niceties sometimes
heard in court that the police have taken a man into informal custody but not
arrested him, have detained him for interrogation but not taken him into formal
custody and other like terminological dubiotics are unfair evasions of the
straightforwardness of the law. We need not dilate on this shady facet here
because we are satisfied that the accused did physically submit before the
Sessions Judge and the jurisdiction to grant bail thus arose.
Custody, in the context
of S.
439,( we are not, be it
noted, dealing with anticipatory bail under S.438) is physical control or at
least physical presence of the accused in court coupled with submission to the
jurisdiction and orders of the court.
He can be in custody
not merely when the police arrests him, produces him before a Magistrate
and gets a remand to judicial or other custody. He can be stated to be in
judicial custody when he surrenders before the court and submits to its
directions."
Thus, if an accused
puts himself in the control of the court even after surrendering himself or
even, in my opinion, appearing before it for the purposes of fulfilling
formalities of executing a bail bond directed to be executed by him by an order
under Section 438 Cr.
P.C. then he could be said to have offered himself to the courts‟ jurisdiction
and have further submitted himself to its orders by his physical presence in
court. Is not it even in case of an order under Section 438 Cr. P.C.
that the accused has to execute a bond and as I have just noticed, only when he
had executed a bond he is legally and truly released on bail? Further, from
where he is said to be released on bail as per the provision of Section 441 Cr. P.C.?
He has definitely to be from the custody of the court. When we consider the
provision of Section 441 and
Form no. 45 which is the form created by the legislature for executing a
bond by the accused in pursuant to an order of bail in his favour then it may
be more clear that as soon as he appears before a court, he submits himself to
its jurisdiction and custody and, thus, undertakes to it to remain present
before it as and when the court requires him to. Thus, what appears from the
above discussion is that as soon as an accused appears and goes into the
custody of the court so as to observing the legal obligation cast upon him by
Section 441 Cr. PC., he is in custody of the court and that custody in spite of
his release, is subject to the terms of the bond and those terms are further
creating perennial and permanent constructive custody of the court in which the
accused puts himself and could be said to be lying in spite of having got an
order of bail. Thus, as soon as an accused appears before a court and executes
a bond in terms of Section 441 Cr.
P.C. and Form No. 45 appended to its II Schedule, he could remain very well in
the constructive custody of the court and, as such, there could not be any
question of any statutory right being vested in him for filing yet another
application for bail under Section 438 Cr.
P.C.
38. The learned Judge
who passed the judgment in Anirudh Prasad Yadav alias Sadhu Yadav Vs. State
of Bihar reported in 2006(2) P.L.J.R. 676 was simply extracting a single
line from the decision of the Supreme Court in Bharat Chaudhary reported in
(2003) 8 S.C.C.77 which is as under:
"This judgment in
our opinion does not support the extreme argument addressed on behalf of the
learned counsel for the respondent State that the courts specified in Section 438 of Cr.
P.C. are denuded of their power under the said section where either the
cognizance is taken by the court concerned or a charge-sheet is filed before
the appropriate court."
I have already referred
to the case of Bharat Chaudhary(supra) and I have already held that it never
fell for consideration by the Apex Court in that case as to whether an accused
who had been admitted to anticipatory bail till submission of the charge sheet
could prefer yet another anticipatory bail petition after submission of the
charge sheet and passing of cognizance order. In my considered view, the
judgment in Anirudh Prasad Yadav alias Sadhu Yadav ( Supra) rendered by the
learned Single Judge was not laying down the correct proposition of law and
appears a thoroughly bad law which is hereby over ruled.
39. My esteemed Sister
has issued certain directions in such cases of granting anticipatory bail up to
a particular stage as may appear from paragraph 19 of the order of her Lordship
for guidance of the courts which could be approached by such accused after
expiry of the period of anticipatory bail. I simply want to add that in all
such cases, in which charge sheet is submitted and the period of bail comes to
an end, the only course left to the accused has to pray for regular bail before
the original courts of jurisdiction which shall have the advantage of perusing
and considering the materials which had been collected by the investigating
agency during the investigation and could, thus, come to a conclusion as to
whether his liberty should be protected further or it be cut down on
account of commission of some serious offence. In all such cases, the original
courts must consider some important factors, like, that the accused was granted
anticipatory bail after considering some material by the competent court and
that he had enjoyed that liberty. If the material as against him remains the
same or almost the same, and there is no complain of tampering, etc., then his
liberty must not be put to jeopardy. The court, in such case, may have to
undertake hearing which may spill over a few days. In all such cases, the court
should not send the accused into custody, rather allow him to remain on bail
till the court finds, for definite reasons, it no more permissible in the facts
of the case as presented before it. One has hardly to be worried about
circumstances under which anticipatory bail may be granted as the same appears
very much restricted to the newly incorporated provision of Section 438 Cr. P.C.
which has made it compulsory for considering many factors as may appear from
the newly amended provision. The court which has to consider the prayer
for anticipatory bail, has to consider the nature and gravity of the
accusation, antecedents of the accused including the instance of his previous
conviction and imprisonment by a court in respect of any cognizable offence,
the possibility of the accused running away from justice and, lastly, whether
the accusation had been made with the object of injuring or humiliating the
applicant by having him arrested. One aspect of the matter which is often
confronted by us in Court is that in spite of having been granted anticipatory
bail, sometimes the accused may be remanded to custody as he had not furnished
the bail bond. It is expected that the courts below shall consider proceeding
under Section 438 (3)
Cr. P.C. and act in that light in all such cases.
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