A person added as an accused under Section 319 of Cr.P.C. can seek anticipatory bail under Section 438, as their apprehension of custody is reasonable and relates to the right to liberty.

JUDGMENT :

SASHIKANTA MISHRA, J.

1. The present application involves the following question of law - whether a person added as an accused by the trial Court exercising power under Section 319 of Cr.P.C. is entitled to seek anticipatory bail under Section 438 of Cr.P.C.

2. Brief reference to the facts would be necessary at the outset.

3. On 12.01.2022, one Bhimasen Naik of Bentapur village under Angul Sadar Police Station lodged an FIR alleging therein that on previous day his brother, Tikan Naik had a quarrel with Biju Naik, Badal Naik (petitioner No.2) and Sipun. A scuffle ensued, but because of intervention by the complainant and others, the same subsided. On the same evening when Tikan and his uncle were returning home after visiting his sister, Biju Naik, Gopi Naik, Biranchi Naik, Badal Naik and Dasa Naik, all of whom had concealed themselves, suddenly came to the spot and jointly assaulted him by means of bhujali, axe and thenga. Hearing shouts, the complainant rushed to the spot and saw the assailants assaulting his brother and upon seeing him they fled away. Tikan was taken to DHH, Angul but was referred to Cuttack. He died on the way. On the FIR thus lodged, Angul Sadar P.S. Case No. 32/2022 was registered under Sections 302/34 of IPC followed by investigation. In course of investigation, the I.O. found that accused, Biju had stabbed the deceased by means of an arrow causing his death. Accordingly, charge sheet was submitted only against him under Section 302 of IPC. The case being committed to the Court of Sessions, trial commenced, in course of which, some witnesses were examined including the informant as P.W.-1 and his other brothers as P.Ws. 2 and 3. In course of trial, the prosecution filed an application under Section 319 of Cr.P.C. on 06.03.2023 to add the other FIR named accused persons including the petitioners as accused persons in the case basing on the testimony of P.Ws.1, 2 and 3. The Court below by order dated 01.05.2023 found that there was sufficient evidence available against the non- charge sheeted persons and accordingly, added them as accused and directed issuance of summons to them. The petitioners are among the persons so summoned and apprehending that they may be taken into custody on their appearance, have approached this Court in the present application seeking anticipatory bail.

4. This Court, in the present application is not concerned with the correctness or otherwise of the order passed by the trial Court adding the petitioners as additional accused persons in the case.

5. A preliminary objection as regards maintainability of the application was raised by learned State Counsel, Mr. S.K. Mishra. He argues that the trial Court having issued only a summons, apprehension of the petitioners of being taken to custody is entirely unjustified. Even otherwise, Section 438 of Cr.P.C. would apply to cases of arrest by police and not to cases where summons has been issued by Court.

6. On the other hand, Mr. S. Bahadur, learned counsel appearing for the petitioners would argue that the expression ‘reason to believe’ used in Section 438 of Cr.P.C. is wide enough to include any reasonable apprehension of a person of being taken to custody. He further argues that Sub-Section (3) of Section 319 confers power on the trial Court to detain a person appearing upon summons and therefore, the apprehension of the petitioners must be held to be reasonable.

7. For better appreciation of the rival contentions it is necessary to refer to the provision of Section 438 of Cr.P.C. at the outset, sub-Section(1) of which being relevant in the present context, is quoted h