An application under Section 438 of the CrPC is not maintainable at the instance of an accused who has jumped bail.

Dipak Misra, J.

1. Maxwell in his treatise on Interpretation of Statute (tenth edition) page 284 in his inimitable style postulated thus :

"The tendency of modern decisions, upon the whole is to narrow materially the difference between what is called a strict and a beneficial construction. All statutes are now construed with a more attentive regard to the language and criminal Statutes with a more rational regard to the aim and intention of the legislature, than formerly. It is unquestionable right that the distinction should not be all together erased from the judicial mind, for it is required by the spirit of our free Institutions that the interpretation of all Statutes should be favourable to personal liberty."

The purpose of referring to the aforesaid passage is due to the fact that the learned counsel for the petitioners have impressed upon this Court to interpret Section 438 of the Code of Criminal Procedure (hereinafter referred to as 'Code') in such a manner so that it would be 'favourable to personal liberty'. Their submission, in essence, is that in absence of any rider in the language of Section 438 of the Code, it should be allowed to have free play without any confines and circumscription. It is well accepted that individual liberty is a priceless treasure, a well cherished ideal and a ripened gift of a cultured and progressive society to the individual. But the question that falls for consideration in the present case is whether a person who takes liberty with liberty can lean upon the provisions of Section 438 of the Code to seek liberty contending that it is the panacea for all malady and the Court should not introduce any limitations which are non-existent being not provided for by the Legislature. Mr. Ahaluwalia, learned Govt. Advocate, combating the aforesaid conceptual-liberty oriented argument has proponed that Section 438 of the Code does provide an umbrella protecting the liberty of an individual but that does not necessarily mean that it confers an immunity to the accused and the parade of anticipatory bail would continue covering all stages till trial is concluded.

2. The debate, in detail. Yogendra, the applicant in MCrC No. 5921/99 was arrested for an offence punishable under Section 394 of the Indian Penal Code (in short the 'IPC'). He was admitted to bail and thereafter, he faced trial in Criminal Case No. 397/88 before the Judicial Magistrate First Class, Nagod in the Distt. of Satna. As averred in the petition he used to appear on each date when the case was posted for hearing. However, due to his ill health he could not appear on 4-7-1998 and through his counsel an application for condonation of his absence and for representation was filed. The said application was rejected and a non-bailable warrant of arrest was issued. In this backdrop he moved the learned Additional Sessions Judge for grant of anticipatory bail who negatived the prayer. Being dissatisfied he has approached this Court for grant of said relief. Many a justification has been enumerated explaining the absence of the petitioner on 4-7-1998 and number of grounds have been put forth for grant of anticipatory bail.

3. In MCrC No. 6061/99 Shankarlal was taken into custody for the offences punishable under Section 7 read with Section 16(1)(a) of Prevention of Food Adulteration Act, 1954. He was facing trial before the chief Judicial Magistrate, Betul in Criminal Case No. 417/91. The petitioner remained absent on 12-4-1996 and he instructed his counsel to file an application for exemption from appearance. As the impugned order of rejection would show, a non-bailable warrant of arrest was issued on 12-4-1996. It is averred that the petitioner had met with an accident and was in a state of coma for nine days. It is also putforth that his wife was ailing for the last four years and hence, the petitioner could not attend the Court. In this background he filed applications under Section 438 of the Code on two occasions which have been rejec