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2022 Supreme(Kar) 626
IN THE HIGH COURT OF KARNATAKA
H.P.Sandesh, J.
Mujahidulla - Appellant
Versus
State of Karnataka - Respondent
Crl.P 9355 of 2021
Decided On : 03-01-2022
Harisha A.S., Advocate
The main legal point established is that a petition under Sec. 438 of Cr.P.C. is not maintainable once the accused have been enlarged on bail and should approach the Trial Court for necessary applications.
Headnote:
Sec. 438 - Bail - The court held that the petitioners, who had previously been granted bail but failed to appear before the Trial Court, should approach the Trial Court to recall the warrant issued against them. The petition under Sec. 438 of Cr.P.C. was deemed not maintainable once the petitioners had been enlarged on bail.
Fact of the Case:
The petitioners were granted bail but failed to appear before the Trial Court after the charge-sheet was filed, leading to the issuance of a warrant against them. They filed a petition under Sec. 438 of Cr.P.C. seeking bail again.
Finding of the Court:
The court found that the petition under Sec. 438 of Cr.P.C. was not maintainable once the petitioners had been enlarged on bail and directed them to approach the Trial Court to recall the warrant issued against them.
Issues: The issue was whether the petition under Sec. 438 of Cr.P.C. was maintainable after the petitioners had been previously granted bail but failed to appear before the Trial Court.
Ratio Decidendi: The court's decision was based on the fact that the petitioners had already been enlarged on bail and should approach the Trial Court to recall the warrant, making the petition under Sec. 438 of Cr.P.C. not maintainable.
Final Decision: The petition was disposed of with the direction for the petitioners to approach the Trial Court to recall the warrant issued against them.
JUDGMENT
H.P.SANDESH,J. - This petition is filed under Sec. 438 of Cr.P.C. praying this Court to enlarge the petitioners on bail in the event of their arrest in respect of Crime No.15/2014 registered by the Cubbon Park Police Station, Bengaluru, for the offence punishable under Sec. 379 of IPC and Sec. 87 of the Karnataka Forest Act.
2. Heard the learned counsel for the petitioners and the learned High Court Government Pleader appearing for the respondent-State.
3. The factual matrix of the case is that the police have registered the case against the petitioners and other accused persons for the offence punishable under Sec. 379 of IPC and Sec. 87 of the Karnataka Forest Act and the petitioners were granted bail and thereafter charge-sheet was filed and after filing of the charge-sheet, cognizance was taken and the summons was issued against the accused and the accused did not appear before the Trial Court. The petitioners instead of filing necessary application before the Trial Court, filed a petition under Sec. 438 of Cr.P.C. and the same was rejected on the ground that the petition is not maintainable once they have already been enlarged on bail.
4. Per contra, the learned High Court Government Pleader appearing for the respondent-State would submit that on the very same ground only the bail petition was rejected.
5. Having heard the respective learned counsel, it is not in dispute that earlier the petitioners were granted bail and thereafter they appeared before the Trial Court during the crime stage and after filing of the charge-sheet, cognizance was taken and summons was issued against the petitioners, but they did not appear before the Trial Court. The order sheet reveals that the summons was not served against the petitioners and when the summons was not served, NBW was issued and having taken note of the said factual aspect of the case, it is appropriate to direct the petitioners to approach the Trial Court by filing the necessary application for recalling the warrant issued against the petitioners. The petition filed before this Court under Sec. 438 of Cr.P.C. is not maintainable once the petitioners have been enlarged on bail. With these observations, the petition is disposed of.
