IMPORTANT POINT
While considering an application for bail, existence of a prima facie case is only to be considered.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Challenge in this appeal is to the order passed by a learned Single Judge of the Rajasthan High Court at Jodhpur, rejecting the application for bail filed by the appellant. An earlier application for bail filed by the appellant was also rejected by the High Court by order dated 15.12.2003. Allegation against the appellant was that he is involved in several nefarious activities of smuggling of antiques particularly the idols to foreign countries for heavy sums of money.

2. Stand of appellant before the High Court was that he was discharged of offence punishable under Section 413 of the Indian Penal Code, 1860 (in short the ‘IPC’) by the trial Court and therefore he was facing trial only for the offence triable by the Court of Magistrate, i.e. under Sections 457, 380 and 411 IPC. It was the stand of the appellant that the evidence of the prosecution witnesses was not sufficient to secure his conviction in respect of any of the charges. It was pointed out that evidence of seven witnesses have been recorded and none of them has implicated him in the crime. There is no recovery from him and other co-accused persons similarly situated namely, Madam Mohan Agarwal and Manoj Sharma had been enlarged on bail. Out of 10 cases registered against him, he has been granted bail in six cases. He is in jail for more than 2 = years and in any case he is entitled to bail in view of the provisions contained in Section 437 (6) of the Code of Criminal Procedure, 1973 (in short the ‘Code’). The State opposed the bail application on the ground that in an identical case the application of the applicant was rejected by the Jaipur Bench and the matter was carried to this Court and no interference was made. Further the order of discharge in respect of offence punishable under Section 413 IPC was challenged by filing a revision before the High Court. Considering the aforesaid aspects the prayer for bail was rejected.

3. Learned counsel for the respondent submitted that though the proceedings have been stayed and several cases have been clubbed together, the charge sheet was filed on 27.9.2003 and on 21.4.2005 the order of discharge was passed. Subsequently, the order of discharge has been set aside by the High Court in S.B. Criminal Revision No.817 of 2005. The same order of discharge was challenged before this Court in Criminal Appeal No.1585 of 2007 which was dismissed as withdrawn. The only distinguishing feature pointed out by the appellant to seek reconsideration of the prayer for bail was the order of discharge. As noted above, the same was set aside by the High Court. Appeal against the same has been dismissed as withdrawn.

4. Section 439 of the Code reads as follows :

“439. (1) A High Court or Court of Session may direct -

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by the Magistrate when releasing any person on bail be set aside or modified.” (underlined for emphasis)

5. It is clear from a bare reading of the provisions that for making an application in terms of Section 439 of the Code a person has to be in custody. Section 438 of the Code deals with “Direction for grant of bail to person apprehending arrest”.

6. In Salauddin Abdulsamad Shaikh v. State of Maharashtra1 (AIR 1996 SC 1042) it was observed as follows:

“Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular court for bail. That is the correct procedure to follow because it must be realised that when