An accused can approach the High Court for anticipatory bail under Section 438 of the Cr.P.C. in exceptional circumstances, especially if the Sessions Judge has ordered the forfeiture of bail and surety bonds.

JUDGMENT

Amol Rattan Singh, J. (Oral). - On February 15, 2021, the following order had been passed by this court:-

“Case heard by video conference.

By this petition, the petitioner seeks the concession of 'anticipatory bail' under the provisions of Section 438 Cr.P.C., upon issuance of non-bailable warrants vide an order dated 02.02.2021 passed by the learned Sessions Judge, Pathankot, in Complaint No.NI Act/468/2015, dated 07.08.2015 under the provisions of Section 138 of the Negotiable Instruments Act, 1881, (CRA No.204 of 2019 “Harbans Lal vs. Amit Kumar”).

Learned counsel for the petitioner submits that since, earlier, the appeal filed by the petitioner was not being heard by way of physical hearing due to the Covid-19 pandemic, thereafter due to a mis-communication between his counsel and him (as alleged), he was not informed of the order dated 18.11.2020 (Annexure P-4), directing that he was to personally appear on the next date of hearing, i.e. 02.02.2021, on which date his bail and surety bonds were ordered to be forfeited and the order granting him bail cancelled.

Notice of motion be issued to respondent no.1 through normal process.

On the asking of the Court, Mr. Ramdeep Partap Sngh, DAG, Punjab, accepts notice on behalf of respondent no.2 i.e. the State.

It being a matter relating to a complaint filed under the provisions of Section 138 of the Negotiable Instruments Act, 1881, with in any case physical hearing in appeals not having opened till recently, the petitioner is directed to surrender before the learned trial court within 10 days.

Upon him so appearing, he shall be admitted to interim bail, upon him furnishing adequate bail and surety bonds to the satisfaction of the appellate court, till the next date of hearing before this court.

In the meanwhile, uptil the time that the petitioner is granted bail (subject to him surrendering on 25.02.2021), he be not arrested, after which of course he would be admitted to bail by the trial court in terms of this order (if he surrenders).

Learned counsel for the petitioner would place on record the order passed by the trial court on 25.02.2021.

Adjourned to 22.03.2021.”

Thereafter, the matter having been adjourned on 22.03.2021 on a request made by learned counsel for respondent no.1, he had sought time to cite judgments to the effect that without invoking the jurisdiction of the Sessions Court under the provisions of Section 438 of the Cr.P.C., such jurisdiction of this court could not be invoked, except in exceptional circumstances.

To allow him to refer to those judgments, hearing in the matter had been adjourned to 03.05.2021, but with the matter seemingly not having been listed on that date (in view of the ongoing pandemic), it was only listed on August 20, 2021, on which date its turn does not seem to have come up with the hearing therefore adjourned “by order” to 01.09.2021, and with learned counsel for the petitioner having made a request for an adjournment on that date and counsel for the complainant also having filed an application seeking to place on record the judgments that he wished to refer to.

On September 09, 2021, i.e. the date on which the order had been reserved, learned counsel for the said respondent had relied upon various judgments, one of a Division Bench of the Gauhati High Court in Kwmta Gawra Brahma vs. State of Assam (Gauhati), 2015(32) RCR (Crl.) 313, another of a co-ordinate bench of the Rajasthan High Court in Hajialisher vs. The State of Rajasthan, 1967(1) Crl.LJ 658, as also of the Delhi High Court in Jasbir Singh Sodhi vs. UOI and another 2010(10) RCR Crl. 523 and of the Madhya Pradesh High Court, in Smt.Priya Agrawal @ Shubhlata Agrawal and others vs. State of M.P., 2013 (7) RCR (Crl.) 1038.

On the other hand learned counsel for the petitioner has relied upon the following judgments:-

i) Barun Chandra Thakur v. Central Bureau of Investigation and others, 2018(5) RCR (Criminal) 49;

ii) Mubarik and another v. State of Uttarakhand and others, 2019(1) NCC 30