IMPORTANT POINT
Fact that a Court has taken cognizance of complaint or investigating agency has filed a charge-sheet would not by itself prevent the Sessions Court or High Court from granting anticipatory bail in appropriate cases.

Headnote:Criminal Procedure Code, 1973-Section 438-Anticipatory bail-Maintainability of application after charge-sheet is filed or cognizance is taken-Application is entertainable and Court in a suitable case can grant bail even when cognizance is taken or chagre-sheet is filed-Gravity of offence is an important factor to be taken into consideration so also need for custodial interrogation-Salauddin Abdulsamad Shaikh case did not place any restriction or absolute bar on exercise of power of Court in such case-Petitioners, accused in offence under Sections 504, 498A and 406 IPC, parents in law of complainant, found entitled to anticipatory bail.
       Held : From the perusal of this part of Section 438 of the Crl.P.C., we find no restriction in regard to exercise of this power in a suitable case either by the Court of Sessions, High Court or this Court even when cognizance is taken or charge sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a Court has either taken cognizance of the complaint or the investigating agency has filed a chargesheet, would not by itself, in our opinion, prevent the concerned courts from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the concerned courts while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of charge sheet cannot by themselves be construed as a prohibition against the grant of anticipatory bail. In our opinion, the courts i.e. the Court of Sessions, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of the Crl.P.C. even when cognizance is taken or charge sheet is filed provided the facts of the case require the Court to do so. (Para 6)
       From a careful reading of the said judgment we do not find any restriction or absolute bar on the concerned Court granting anticipatory bail even in cases where either cognizance has been taken or a chargesheet has been filed. This judgment only lays down a guideline that while considering the prima facie case against an accused the factum of cognizance having been taken and the laying of chargesheet would be of some assistance for coming to the conclusion whether the claimant for an anticipatory bail is entitled for such bail or not. This is clear from the following observations of the Court in the above case :
       "It is, therefore, necessary that such anticipatory bail orders should be of limited duration only and ordinarily on the expiry of the duration or extended duration, 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 chargesheet is submitted."
       From the above observations, we are unable to read any restriction on the power of the courts empowered to grant anticipatory bail under Section 438 of the Crl.P.C. (Para 8)

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

The fact that a court has taken cognizance of a complaint or that an investigating agency has filed a charge-sheet does not automatically prevent the courts from granting anticipatory bail in appropriate cases (!) (!) .
The primary purpose of Section 438 of the Criminal Procedure Code is to prevent undue harassment of accused persons through pre-trial arrest and detention (!) .
The power to grant anticipatory bail is available to the courts of Sessions, High Courts, and this Court even when cognizance has been taken or a charge sheet is filed, provided the circumstances of the case justify it (!) (!) .
The gravity of the offence and the need for custodial interrogation are important factors to consider when deciding on anticipatory bail (!) .
Anticipatory bail should generally be granted for a limited duration, and after this period, the matter should be left to the regular court to assess based on the evidence and investigation progress (!) (!) (!) .
There is no absolute restriction or prohibition on granting anticipatory bail once cognizance is taken or a charge sheet is filed; these factors are only aids in evaluating the case (!) (!) .
The courts are expected to exercise this power judiciously, ensuring that anticipatory bail is not granted for an indefinite period, and should be contingent upon conditions that uphold the purpose of Section 438 (!) (!) (!) .

Please let me know if you need further elaboration or specific legal advice.

JUDGMENT

Santosh Hegde, J.-Heard learned counsel for the parties.

Leave granted.

2. Appellants in this case are husband and wife and were accused by their daughter-in-law of offences punishable under Sections 504, 498A and 406 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act. Their application, filed under Section 438 of the Crl.P.C. for grant of anticipatory bail has been rejected by the High Court of Judicature at Patna. The said order is under challenge in this Appeal. When this matter came up for preliminary hearing of 19th May, 2003, we issued notice to the respondens and also made an interim order not to arrest the appellants in the meantime. Today after hearing the parties on facts, we are inclined to grant anticipatory bail to the appellants.

3. Shri B.B. Singh, learned counsel appearing for the respondent-State, however, raised a legal objection. His contention was that since the Court of first instance has taken cognizance of the offence in question, Section 438 of the Crl.P.C. cannot be used for granting anticipatory bail even by this Court and the only remedy available to the appellants is to approach the trial court and surrender, thereafter apply for regular bail under section 439 of the Crl.P.C. In support of this contention the learned counsel relied on the judgment of this Court in the case of Salauddin Abdulsamad Shaikh vs. State of Maharashtra, (1996(1) SCC 667).

4. If the arguments of the learned counsel for the respondent - State is to be accepted then in each and every case, where a complaint is made of an non-bailable offence and cognizance is taken by the competent court then every court under the Code including this court would be denuded of its power to grant anticipatory bail under Section 438 of the Cr.P.C.

5. We do not think that was the intention of the legislature when it incorporated Section 438 in the Crl.P.C. which reads thus :

"When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest he shall be released on bail."

6. From the perusal of this part of Section 438 of the Crl.P.C., we find no restriction in regard to exercise of this power in a suitable case either by the Court of Sessions, High Court or this Court even when cognizance is taken or charge sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a Court has either taken cognizance of the complaint or the investigating agency has filed a chargesheet, would not by itself, in our opinion, prevent the concerned courts from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the concerned courts while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of charge sheet cannot by themselves be construed as a prohibition against the grant of anticipatory bail. In our opinion, the courts i.e. the Court of Sessions, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of the Crl.P.C. even when cognizance is taken or charge sheet is filed provided the facts of the case require the Court to do so.

7. The learned counsel, as stated above, has relied on the judgment of this Court referred to herein above. In that case i.e. namely Salauddin Abdulsamad Shaikh, a three-Judge Bench of this Court stated thus :

"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 a

Click Here to Read the rest of this document

2003 Supreme(SC) 999

IMPORTANT POINTFact that a Court has taken cognizance of complaint or investigating agency has filed a charge-sheet would not by itself prevent the Sessions Court or High Court from granting anticipatory bail in appropriate cases.

Cases Referred (1)

IMPORTANT POINT
Fact that a Court has taken cognizance of complaint or investigating agency has filed a charge-sheet would not by itself prevent the Sessions Court or High Court from granting anticipatory bail in appropriate cases.