Can’t Reject Anticipatory Bail Plea On The Grounds That Chargesheet Is Filed Or Court Has Taken Cognizance Of Offence: Allahabad HC

Stressing that anticipatory bail can be granted at any time so long as the applicant has not been arrested, the bench of Justice Nalin Kumar Srivastava also observed thus:

“…even if the chargesheet is filed and cognizance is taken by the court against the accused, who has got an immunity from being arrested during the course of investigation either by way of order of a competent court protecting him by grant of anticipatory bail or by service of notice under Section 41-A Cr.P.C. by the Investigating Officer, anticipatory bail application moved by him is legally maintainable…”

The bench held thus while allowing the anticipatory bail plea filed by 3 accused (husband, father-in-law and mother-in-law of the informant) booked under various sections of IPC and Dowry Prohibition Act.

They moved the Court after the filing of the chargesheet against them and after the Sessions Court denied granting them pre-arrest bail on the grounds that a chargesheet had been filed against them and the court concerned had taken cognizance of the same.

It was primarily argued by them that they all are well-educated persons and doctors by profession and no dowry demand, as alleged, was ever made by them and that the informant / opposite party no.2 was never subjected to cruelty and harassment by them.

On the other hand, the Counsel for the State argued that during the course of the investigation, sufficient evidence had been collected against the accused applicants.

It was further submitted that after filing of the charge sheet, when the process was issued to summon them, they did not appear before the court and the court then proceeded to issue a non-bailable warrant against them and subsequently, a process under section 82 CrPC was also issued against them, which means that they have been declared proclaimed offenders by the court and hence, they can not be granted anticipatory bail as per Apex Court’s ruling in the case of Prem Shankar Prasad vs. State of Bihar and Another LL 2021 SC 579.

Responding to this, the counsel for the applicants contended that the instant anticipatory bail application on behalf of them had been filed prior to the issuance of the proclamation under section 82 CrPC and hence, the pre-arrest bail plea was maintainable in view of Allahabad HC’s ruling in the case of Manish Yadav v. State of U.P 2022 LiveLaw (AB) 325.

Having heard the arguments of both sides, the Court noted that the present applicants were not proclaimed offenders at the time of making their application for anticipatory bail before the HC and hence, the bar imposed by the Supreme Court in Prem Shankar Prasad (supra) for not entertaining the anticipatory bail application of a proclaimed offender is not attracted in the present case.

The Court further observed found it appropriate to grant them pre-arrest bail as it noted that the alleged offences are punishable with imprisonment of the maximum period of seven years and the applicants have been cooperative during the course of the investigation and there was nothing on record to show otherwise.

However, before parting with the case, the Court expressed its surprise over the order of the sessions Court denying anticipatory bail to accused applicants on the ground of filing of the chargesheet and passing of an order by the court taking cognizance upon the same.

Accordingly, the Court found it appropriate to remind the Sessions Courts, while referring to Apex Court’s ruling in the case of Sushila Aggarwal and others vs. State (NCT of Delhi) and another, as to what is the actual scope of Section 438 CrPC and the powers of the Sessions Court by observing thus:

“the protection granted under section 438 Cr.P.C. should not always or ordinarily be limited to a fixed period; it should ensure in favour of the accused without any restriction as to time. However, usual or standard conditions under section 437 (3) read with section 438 (2) may be imposed having regard to the peculiar features of a particular case…the life of anticipatory bail does not end generally at the time and stage when the accused is summoned by the court, or after framing of charges, but can also continue till the end of the trial. However, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.”

Further, the Court also referred to Top Court’s ruling in the case of Bharat Chaudhary Vs. State of Bihar, (2003) 8 SCC 77, wherein it specifically held thus:

“the Court of Session, High Court or Supreme Court have the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 Cr.P.C. even when cognizance is taken or a charge sheet is filed provided the facts of the case require the court to do so”

Consequently, the Court remarked that the observation given by the Sessions Court while rejecting the anticipatory bail application of the applicants was a misnomer and that the settled legal position cannot be permitted to be contorted in any manner.

Appearances

Counsel for Applicant: Surya Bhan Singh

Counsel for Opposite Party: G.A., Ajay Kumar Shukla

Case title - Dr. Kartikeya Sharma And 2 Others vs. State of U.P. and Another [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3107 of 2023]

Case Citation: 2023 LiveLaw (AB) 195

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