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IN THE HIGH COURT OF JUDICATURE AT PATNA
AKHILESH CHANDRA, J.
Anil Kumar @ Anil Kumar Yadav @ Anil Yadav
Zahid Eqbal
Ajeet Kumar Bhagat - Petitioner
Versus
The State of Bihar - Opposite Party
Criminal Miscellaneous No.19124, 20616, 21866 of 2014
Decided on : 25.09.2014
The Court held that an application under Section 438 of the Code of Criminal Procedure (CrPC) can only be entertained by the High Court or the Court of Session, not by any other Additional Sessions Judge unless there are any special circumstances. The Court also held that in cases where the Sessions Judge or Additional Sessions Judge has to exercise original jurisdiction either as a general court or as a Special Judge, the applications under Section 438 CrPC if filed and entertained directly by the High Court and only such applications for the offences, other than barred under the Act, may be preferred as first instance before Sessions Judge, may have some balance upon, not only wastage of time but also misuse of the privilege by the accused, causing hindrance in early disposal of the case, wherein, he is involved.
Fact of the Case:
Three cases were filed before the Court, all involving anticipatory bail applications under Section 438 of the CrPC. The applicants in each case were accused of various offenses, including criminal conspiracy, cheating, forgery, and criminal breach of trust. The applicants had filed their applications before the Chief Judicial Magistrate and the Additional Sessions Judge, respectively, but their applications were rejected. They then approached the High Court seeking anticipatory bail.
Finding of the Court:
The Court held that the applicants were not entitled to anticipatory bail under Section 438 of the CrPC. The Court found that the applicants had not demonstrated that they had a reasonable apprehension of being arrested and that the allegations against them were serious in nature. The Court also found that the applicants had not exhausted all alternative remedies available to them, such as seeking regular bail from the trial court.
Issues: 1. Whether an application under Section 438 of the CrPC can be entertained by the High Court or the Court of Session, or by any other Additional Sessions Judge. 2. Whether in cases where the Sessions Judge or Additional Sessions Judge has to exercise original jurisdiction either as a general court or as a Special Judge, the applications under Section 438 CrPC if filed and entertained directly by the High Court and only such applications for the offences, other than barred under the Act, may be preferred as first instance before Sessions Judge. 3. Whether an applicant is entitled to anticipatory bail under Section 438 of the CrPC if they have not demonstrated that they have a reasonable apprehension of being arrested and that the allegations against them are serious in nature.
Ratio Decidendi: The Court held that an application under Section 438 of the CrPC can only be entertained by the High Court or the Court of Session, not by any other Additional Sessions Judge unless there are any special circumstances. The Court also held that in cases where the Sessions Judge or Additional Sessions Judge has to exercise original jurisdiction either as a general court or as a Special Judge, the applications under Section 438 CrPC if filed and entertained directly by the High Court and only such applications for the offences, other than barred under the Act, may be preferred as first instance before Sessions Judge, may have some balance upon, not only wastage of time but also misuse of the privilege by the accused, causing hindrance in early disposal of the case, wherein, he is involved.
Final Decision: The Court dismissed all three applications for anticipatory bail.
Key Points: - The court holds that anticipatory bail under section 438 CrPC can only be entertained by the High Court or the Court of Session, not by other Additional Sessions Judges, except under special circumstances [8000397260010]. - In contexts where Sessions Judges or Additional Sessions Judges exercise original jurisdiction (general or as Special Judges), applications under section 438 filed directly with the High Court and allowed as first instance before the Sessions Judge may have implications for time and misuse [8000397260010]. - The judgment reiterates the criteria and cautionary principles for granting anticipatory bail, including the need to show reasonable grounds for belief of arrest, gravity of the offence, and exhaustion of alternative remedies (!) (!) (!) (!) (!) (!) . - The decision emphasizes that procedures under section 438 should be used judiciously to protect personal liberty while not frustrating proper investigation or encouraging abuse of the provision (!) (!) - (!) . - The matter discusses the scope of Section 41/41A and related arrest provisions, noting guidelines and cautions on pre-arrest detention and lawful arrest practices (!) (!) - (!) (!) - (!) .
1. Heard learned counsel for the petitioners and learned Additional Public Prosecutor for the State.
2. All the applicants of all the three cases apprehending their arrest have preferred respective applications under Section 438 of the Code of Criminal Procedure (hereinafter referred to as “Code”) and since common law point is involved they are taken together and being disposed of by this composite order.
3. It is not required to refer factual aspects in detail but for convenience and appreciation only relevant short facts are being placed.
4. The solitary applicant in 1st case is an accused in Complaint Case No. 966/2012 filed before Chief Judicial Magistrate, Saharsa, for the offences under Sections 420, 467, 468, 471, 404 of the Indian Penal Code (vide Annexure – 1) wherein (vide para 1 of the petition) cognizance after inquiry was taken only for the offences under Section 420/34 of the Indian Penal Code.
5. In second application, all the six petitioners are named accused in Complaint Case No. 542(C) of 2013 instituted before Chief Judicial Magistrate, Patna, for the offences under Sections 403, 406, 409, 418, 420, 120(B) of the Indian Penal Code (Vide Annexure – 1) wherein (as per para – 1 of the petition) cognizance after inquiry was taken only for the offences under Section 403, 420, 120(B) of the Indian Penal Code.
6. In third case, the solitary petitioner is an accused in Complaint Case No. 1317(C) of 2012 filed before Chief Judicial Magistrate, Madhepura, for the offences under Sections 420, 406, 468, 323, 504 of the Indian Penal Code (vide Annexure – 1).
7. It is also to be noted that the application under Section 438 of the Code initially preferred by the petitioners above-named have already been turned down by respective learned Sessions Judge, thereafter by way of second attempt these applications have been preferred.
8. Undisputedly, in all such complaint cases after inquiry conducted by the Court, cognizance for the offences have been taken by the respective Magistrates who simply issued summons under Section 204 Cr.P.C. against the accused persons including the petitioners who instead of paying respect to the summons issued by the Court opted to proceed under Section 438 of the Code, but in none of the applications they have assigned any specific reason causing apprehension in their mind of their being arrested as is a mandatory requirement before opting to exercise their rights, if any, under Section 438 of the Code.
9. The Apex Court in a case of “Shri Gurbaksh Singh Sibbia and Others Versus State of Punjab”, reported in (1980) 2 Supreme Court Cases 565 in Paragraph No. 35 has clearly held as such:-
“35. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe” that he may be arrested for a non-bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere “fear” is not „belief? for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any a
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