Anticipatory Bail Plea Not Maintainable By Person Already Enlarged On Bail As He Is Under Constructive Custody: J&K&L High Court

The bench comprising Justice Sanjay Dhar was hearing a plea for anticipatory bail for wherein the petitioner was alleging apprehension of arrest in an FIR charged with offences under 489-C of IPC.

Perusing the available record the bench recorded that the petitioner after his arrest, was released on interim bail by Judicial Magistrate Handwara upto 7-7-2021. The record further revealed the aforesaid order was later withdrawn by the Judicial Magistrate 1st Class, Handwara, on 01.07.2021, by observing that the offence under Section 489-D of IPC is of special nature and as such he did not have jurisdiction to entertain the bail application.

The record before the bench further revealed that the order of Judicial Magistrate, 1st Class, was challenged by the petitioner through the medium of a revision petition before this court in a different petition. While disposing of the petition, this Court had observed that offence under Section 489-D of IPC is triable by the Sessions Court and therefore, Judicial Magistrate, 1st Class, Handwara, has erroneously held that the said offence is a special offence triable by a Special Court.

It was further brought to the notice of the court that the petitioner and the co-accused thereafter filed an application for grant of anticipatory bail before the Principal Sessions Judge, Kupwara which was dismissed by observing

"that the petitioners cannot maintain the instant petition for the grant of anticipatory bail as the accused/petitioners have already suffered incarceration and the learned Judicial Magistrate Handwara had admitted them to interim regular bail and thus brought them under the constructive custody of law. The subsequent cancellation of their interim regular bail would require them to come back to custody."

Contesting the maintainability of the anticipatory bail application the prosecution argued that once the petitioner was arrested and granted interim bail in an application filed for grant of regular bail, it is not open to him to approach this Court for grant of bail in anticipation of his arrest.

Defending his application the counsel for the petitioner countered the petitioner at the present moment is not in custody but is apprehending his arrest after cancellation of his bail, as such, the instant bail application under Section 438 of the Cr. P. C is maintainable.

Adjudicating on the moot question as to whether it was appropriate for the petitioner/accused enlarged on a regular bail, but subsequently asked to return back to the confines of law, to approach the court for a subsequent bail under 438 CrPC, the bench observed that the proper course for the petitioner was to surrender before the Sessions Court and apply for grant of regular bail because he had already been arrested and pursuant to grant of interim regular bail, he was in constructive custody of the law.

Buttressing this said position of law the bench placed strong reliance on the supreme court Judgement in Manish Jain vs. Haryana State Pollution Control Board, (2020) wherein it has been clearly laid down that a person released on bail is already in constructive custody and if the law requires him to come back to custody for specified reasons, the application for anticipatory bail will not lie.

Dismissing the bail application, the bench observed that the learned Sessions Judge had rightly relied upon the ratio laid down by the Supreme Court in the aforesaid case while declining to enlarge the petitioner on bail in anticipation of his arrest. The said order is perfectly in accordance with law and there is no ground to take a different view of the matter, the bench concluded.

Case Title: ZUBAIR AHMAD WANI Vs. GOVERNMENT OF J&K 

Citation: 2022 LiveLaw (JKL) 72 

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